Kenneth & Kenneth

FAMILY COURT OF AUSTRALIA
Kenneth & Kenneth [2021] FamCA 92

File number(s): ADC 3153 of 2012

Judgment of: MEAD J

Date of judgment: 3 March 2021

Catchwords: FAMILY LAW – CHILDREN – Parenting issues – previous final consent orders 2013 – impact on child of ongoing parental tension – cessation of time with father for short time in 2018 – time resumed within months but for less time than 2013 order – time now resumed in accordance with 2013 order but with inclusion of provision for child to spend additional school holiday time with father.

Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61B, 61DA, 61DA(1), 61DA(2), 61DA(4), 65DAA, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC, 65DAE

Number of paragraphs: 305

Date of hearing: 18 November 2020 and 8, 9, 10 and 11 February 2021

Place: Adelaide

Counsel for the Applicant: Ms Dickson QC

Counsel for the Respondent: Mr Bowler

Solicitor for the Applicant: Georgina Parker Lawyers

Solicitor for the Respondent: SA Family Law
ORDERS

ADC 3153 of 2012

BETWEEN:
MS KENNETH
Applicant

AND:
MR KENNETH
Respondent

ORDER MADE BY:

MEAD J

DATE OF ORDER:

3 MARCH 2021

THE COURT ORDERS THAT:
1.That the parties have equal shared parental responsibility for the child, X born … 2010.
2.That the child live with the mother.
3.That X spend time with his father as follows:
(a)during school term time:
(i)on each alternate weekend from the conclusion of school Friday (or 3.00 pm if a non‑school day) to the commencement of school on the following Monday (or Tuesday in the event of a long weekend or non‑school day on the Monday) commencing on 5 March 2021; and
(ii)each alternate week from the conclusion of school Wednesday until the commencement of school Friday (or 3.00 pm Friday if a non‑school day) commencing on 10 March 2021;

(b)during school holiday time commencing in 2021 and 2022:
(i)during the April, July and October school holidays in 2021 for five (5) consecutive nights commencing at 5.00 pm on the Friday on which alternate weekend time would ordinarily fall due and concluding at 12 noon on the following Wednesday;
(ii)during the Christmas school holiday period commencing in December 2021 for five (5) consecutive nights in each two week period commencing at 5.00 pm on the Friday nearest to or on the last day of Term 4 2021 and each second Friday thereafter and concluding at 12 noon on the following Wednesday SAVE AND EXCEPT that if such time commences on the last Friday of the school holiday period it shall conclude at 9.00 am on a day not less than twenty-four (24) hours prior to school resuming;
(iii)during the April, July and October school holidays in 2022 for six (6) consecutive nights on the same conditions as specified in paragraph 3(b)(i) hereof such that the time conclude at 12 noon on the following Thursday;
(iv)during the Christmas school holiday period commencing in December 2022 for six (6) consecutive nights in each two week period on the same conditions as specified in paragraph 3(b)(ii) hereof save that it commence on a Friday in December 2022 and conclude at 12 noon on a Thursday unless it commences on the last Friday of the holidays in which case it concludes as previously ordered;

(c)during school holiday time as and from the 2023 school year:
(i)for the first half of the April, July and October holidays in 2023 and each alternate year thereafter commencing at 5.00 pm on the last day of the relevant school term and concluding at 5.00 pm on the middle day of the holidays;
(ii)for the second half of the April, July and October holidays in 2024 and each alternate year thereafter commencing at 5.00 pm on the middle day of the holidays and concluding at 5.00 pm on the last day of the holidays;
(iii)for the first half of the Christmas school holidays commencing in December 2023 and each alternate year thereafter commencing at 5.00 pm on the last day of Term 4 and concluding at 5.00 pm on the middle day of the holidays;
(iv)for the second half of the Christmas school holidays commencing in December 2024 and each alternate year thereafter commencing at 5.00 pm on the middle day of the holidays and concluding at 5.00 pm on the last day of the holidays.

4.That notwithstanding any other order, and to enable the child to celebrate special occasions with each of his parents, the child to spend time with each of them as follows:
(a)at Christmas 2021 and each alternate year thereafter:
(i)with the father, from 12 noon Christmas Eve until 12 noon Christmas Day;
(ii)with the mother, from 12 noon Christmas Day until 12 noon Boxing Day;

(b)at Christmas 2022 and each alternate year thereafter:
(i)with the mother, from 12 noon Christmas Eve until 12 noon Christmas Day;
(ii)with the father, from 12 noon Christmas Day until 12 noon Boxing Day;

(c)if the child's birthday falls on a day when the child is in the mother's care, then with the father for a period of not less than four (4) hours as agreed between the parties, and in default of agreement, from 3.30 pm to 7.30 pm;
(d)if the child's birthday falls on a day when the child is in the father's care, then with the mother for a period of not less than four (4) hours as agreed between the parties, and in default of agreement, from 3.30 pm to 7.30 pm;
(e)upon the father's birthday, with the father, for a period of not less than four (4) hours at times to be agreed between the parties, and in default of agreement, then from 3.30 pm to 7.30 pm;
(f)upon the mother's birthday, with the mother for a period of not less than four (4) hours at times to be agreed between the parties, and in default of agreement, then from 3.30 pm to 7.30 pm;
(g)with the father, each Father's Day from 9.00 am to 5.00 pm;
(h)with the mother, each Mother's Day from 9.00 am to 5.00 pm.

5.That unless specified otherwise herein, or agreed otherwise in writing, all handovers take place at the J Centre, G Street, Suburb N.
6.In the event that either party seeks to take the child interstate for the purposes of a holiday, the other party will be provided with:
(a)at least fourteen (14) days’ notice of the intention to travel;
(b)details of the travel arrangements to include a copy of the flight itinerary and details of addresses where the child will be staying whilst interstate.

7.That if the father is required to travel overseas or interstate during a period or periods when the child is to be in his care pursuant to this order, then:
(a)the father provide the mother with as much notice as practicable of his travel dates, such notice to be provided in writing;
(b)the mother care for the child during such period or periods.

8.That both parties be at liberty to attend at X’s school at functions to which parents are usually invited, including but not limited to sporting events and concerts, and at any extracurricular activities notwithstanding that the child may be in the care of the other parent.
9.That the parties liaise with one another, and endeavour to reach agreement, prior to enrolling the child in any extracurricular (including religious) activities.
10.That both parties be at liberty to obtain copies of all reports provided by X’s school and other information that is usually provided to parents.
11.That in the event of an emergency or if the child is hospitalised, the parent who has the care of the child at the time contact the other parent immediately and each parent be at liberty to attend any medical practitioner or hospital in the event of such emergency.
12.That the father be restrained, and an injunction is hereby granted restraining him, from consuming more than three (3) standard alcoholic drinks per twenty-four (24) hour period, during any period that the child is in the care of the father.
13.That the parties be restrained, and injunctions are hereby granted restraining each of them from:
(a)from denigrating the other parent in the hearing or presence of X, or allowing any other person to do so;
(b)causing or permitting any other person to denigrate the other parent in the hearing or presence of X, or allowing any other person to do so;
(c)initiating any discussion with X as to his parenting arrangements.

14.That both parties do all such things and sign all such documents as shall be necessary to facilitate X’s enrolment in and attendance at B School for his high school years.
15.That the parties’ solicitors forthwith jointly request Ms C in writing that she meet with X on or before 17 March 2021 for the purposes of explaining the terms of this order to X in accordance with the matters referred to in paragraph 146 and 303 of my reasons delivered this day and provide Ms C with a copy of this order and my reasons.
16.That the parties share equally in the cost associated with X meeting with Ms C.
17.That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kenneth & Kenneth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The parties Ms Kenneth (hereinafter referred to as ‘the mother’) aged 43 years and Mr Kenneth (hereinafter referred to as ‘the father’) aged 42 years commenced cohabitation in the UK in March 2004. They married in 2005 and in 2010 X, the child the subject of these proceedings, was born. He is now aged ten years and seven months.
The parties separated finally on 6 August 2012 when X was aged two years.
Litigation commenced on 16 August 2012, some ten days later, and final parenting orders were made by consent on 10 October 2013. With the benefit of hindsight it was unfortunate that built into those orders were unfettered opportunities for both parties to anticipate future litigation.
CURRENT PROCEEDINGS
On 11 July 2018 the mother filed an initiating application seeking:
·Discharge of order of 10 October 2013;
·Sole parental responsibility for X;
·X live with the mother; and
·X spend time with the father at times and on conditions as ordered by the Court.
She also sought interim orders:
·Suspending the order of 10 October 2013;
·For X to spend time with the father as determined by the Court;
·That the father be restrained from going to X’s soccer matches or training; and
·That a family report be prepared by Ms DD.
In the father’s response filed 13 August 2018, the father sought that X live with him on a week-about basis and certain orders with respect to interstate and overseas travel.
At the time of trial the mother sought orders in accordance with her amended initiating application filed 6 February 2020. In the case outline filed on behalf of the mother the orders sought in her amended initiating application were set out but instead of handovers at F Cafe, she proposed handovers occur at the J Centre on G Street. In addition she sought an order that subject to availability, X attend at B School, Suburb N for his secondary education or as otherwise agreed if B School has no availability.
The orders sought by the mother were:
·A discharge of the order of 10 October 2013;
·Sole parental responsibility for X;
·X live with the mother;
·X spend time with the father from:
·after school or 3.00 pm Friday to 5.00 pm Sunday on alternate weekends;
·from after school or 3.00 pm Wednesday to 7.00 pm Wednesday;
·from midday Christmas Eve to midday Christmas Day one year and from midday Christmas Day to midday Boxing Day in the alternate year;
·from 3.00 pm to 7.00 pm on X’s birthday if he is not in the father’s care;
·that X spend from 3.00 pm to 7.00 pm with her on his birthday if he is in his father’s care;
·from 3.00 pm to 7.00 pm or for four hours at times agreed on the father’s birthday;
·that X be with her for four hours or 3.00 pm to 7.00 pm on her birthday;
·that X be with each of his parents on Father’s Day and Mother’s Day respectively from 9.00 am to 5.00 pm;
·handovers at J Centre;
·notice if the father is travelling interstate or overseas for work during periods X would be in his care and X to remain in her care during that time;
·standard orders with respect to each party having access to school reports, school newsletters and the like;
·X to attend B School if it is available for his secondary schooling;
·the father be restrained from consuming more than three alcoholic drinks per 24 hour period when he has X in his care, from leaving X in the care of the paternal grandparents overnight and from enrolling X in extracurricular activities including religious activities without the consent of the mother;
·standard specific issues orders with respect to provision of medical information and access by both parties to medical practitioners and medical advice;
·standard specific issues orders restraining the parties from discussing proceedings with X, denigrating the other parent to or in the presence of X or letting anyone else do so;
·the father to attend upon a therapist with respect to anger management for a period of not less than twelve months from the date of the orders; and
·the mother be able to provide a copy of the Family Assessment Report of Ms C dated 26 February 2019 to the father’s therapist.
The mother’s proposal did not include any variation in the time X should spend with his father during school holiday time.
In closing submissions however Counsel for the mother promoted caution on the part of the Court in terms of any increase in X’s time with the father either during school term time or during school holidays.
In the amended response relied on by the father he sought orders providing for:
·A discharge of the October 2013 order;
·Equal shared parental responsibility for X;
·X to live with him;
·X to spend time with the mother from after school or 3.00 pm Thursday to the commencement of school or 9.00 am Monday each alternate week and at other times as agreed between the parties;
·Almost identical orders as the mother with respect to X’s time with each of them at Christmas time, on his birthday, on the parties’ birthdays and Mother’s and Father’s Day each year;
·Handovers that do not occur at school occur at the home of each party;
·Both parents to be able to attend at X’s school for functions to which parents are usually invited notwithstanding X may be in the care of the other parent;
·The parties to liaise with each other and endeavour to reach agreement prior to enrolling X in extracurricular activities;
·Orders identical to the mother with respect to obtaining information from the school about X;
·Orders that each party advise the other immediately of any hospitalisation of X and that both parents be at liberty to attend any medical practitioner or hospital in the event of an emergency;
·Non-denigration orders as sought by the mother;
·The parties to notify each other of any change of address, telephone number or other contact details within 24 hours of such change;
·Specific orders with respect to the provision of notice of intention to travel with X interstate or overseas;
·An order that both parties do everything necessary to obtain a passport for X until he turns 18 years of age; and
·Both parties to undertake not to consume alcohol to excess during any period of time X is in their care.
During cross-examination the father was asked if he was still seeking primary care of X. He answered words to the effect “I understand the question – I’ve never been in a trial, I have heard a lot of evidence”.
When asked by the Court if that answer should be interpreted as “Yes” the father replied that he would like equal time with X, that he wants to move forward and that he is concerned the mother does not appreciate the issues about her anxiety impacting on X and her ability to promote a relationship between X and his father. Counsel for the mother then asked the father whether the Court could assume that he would prefer an order for equal shared care. He replied “Yes”.
When she asked the father if the Court did not make such an order what he would like in terms of additional time with X, he said he would like time during holidays and would like to spend time and have a normal relationship with X. When asked if he would accept the terms of the order made in 2013 continuing, he responded that he would be disappointed but would accept that outcome.
In closing submissions Counsel for the father promoted an order for an immediate change in X’s parenting arrangements such that he would immediately spend equal time living with each parent.
BACKGROUND
It was the mother’s case that the parties had separated in 2012 when she decided to leave the matrimonial home with X as a result of no longer being able to tolerate the father’s anger and verbal aggression towards her.
Prior to the 2013 orders being made the parties attended upon Ms D for the purpose of obtaining a family assessment. That assessment was dated 26 April 2013 and was contained in the bundle of documents tendered by the father, marked “F1”, being document “4” in that bundle.
Although by the time of trial that report was nearly eight years old it was relevant in that matters raised in that document continued to be germane to the current proceedings.
I do not intend to refer to each and every comment or assessment made by Ms D but note in particular that in her assessment she referred to the following matters that still seemed relevant at this trial, namely:
·X was a happy, healthy child who interacted well with each of his parents;
·Both parents indicated their view that X had normal emotional and social development and behaviour;
·The mother made significant allegations about the father engaging in aggressive and threatening behaviour towards her including in front of X, that at times the father directed agitated or frustrated behaviour towards X and her concern that if that pattern of behaviour continued X’s healthy development would be put at risk;
·The father denied he had been aggressive or abusive towards the mother, acknowledged angry behaviour between himself and the mother and reported they were both reactive at times;
·The father’s view that the mother was making baseless allegations, that he was frustrated at having to defend himself against those allegations, his view that the mother was a “worrier” and “sensitive”, his view that the mother’s anxieties may be getting in the way of her feeling comfortable about X spending more time with him and his view that he was not reactive in parenting X and could be firm but not stern;
·That both parents agreed X enjoyed his time with his father;
·The father reporting he had seen a number of therapists due to marriage difficulties and him experiencing depression;
·The father’s view that he no longer required psychological support, that he had done the work and “is better armed now”;
·The mother’s concerns about the father conveying a sense of anger at many handovers, not talking with her and on other occasions conveying some limited information;
·The mother being encouraged that the father seemed to be more understanding of the impact of his behaviour on her as reflected in the report of Mr H;
·The mother noting that comments in the reports of Mr H about the father’s family of origin were akin to what the father had shared with her;
·The father reporting a “miscommunication” between he and Mr H regarding his family background;
·The father being critical of Mr H’s report saying that it was “a Barrister’s breakfast”;
·The father’s reading of Mr H’s report indicating to him that he did not have a problem;
·Ms D’s view of the contents of Dr H's report being different to that of the father; and
·The father’s view of X being exposed to further angry behaviour resolved by the parties’ separation.

These matters were set out between pages 4 and 12 of Ms D’s report.
Under the heading “Opinion and Recommendations” Ms D noted inter alia that:
·the arrangement the parties had for time spending between X and each of his parents at that time was working well for him;
·there were two significant considerations in progressing the time, namely:
·the father’s ability to continue to meet X’s needs without emotional reactivity; and
·how the mother feels about how X will manage increased time with his father;
·any anxiety felt by the mother about that issue may be sensed by X and impact on his own comfort;
·Ms D was not confident the mother would be able to confidently support X spending longer periods of time with the father based on her level of concern and distress when describing the “frightening” angry behaviour reportedly directed towards her by the father;
·it may be helpful for both parents to access further personal counselling;
·the father could benefit from further support notwithstanding the work he had done regarding his personal functioning, for the purpose of “assisting him to be the best parent he can be to X”; and
·the mother would benefit from having an independent person to “assist her to further develop perspective around X’s relationship with his father”.
Those matters were referred to in pages 12 to 15 inclusive of Ms D’s report.
On page 15 of the report in the last ‘dot point’ Ms D said, inter alia:
The writer could not recommend shared care without reviewing X after the above changes have been put into place. The tensions at this time between Mr and Ms Kenneth are considerable and without progress in this regard there would be a risk in progressing to shared care. Also there remains some level of uncertainty that Mr Kenneth is able to consistently emotionally self-regulate while caring for X for longer periods of time, and uncertainty about how effectively Ms Kenneth can manage any unwarranted anxiety for X…
The matters to which I have referred in Ms D's report of so many years ago encapsulate the very essence of the dispute between the parties reflected in this second round of proceedings.
They came about because on 29 June 2018 at the end of the school day X had a “meltdown” at school after spending the previous two nights with his father. That led to the mother’s application to which I have already referred.
By the time that occurred, X had been spending time with his father pursuant to the orders of 10 October 2013 without the necessity for any further intervention by the Court and in circumstances where both parties, whatever their reservations about the other of them, had complied with the order for almost five years.
By June 2018 X was, pursuant to the terms of paragraph 3(d) of the said order, spending time with his father:
·Each alternate weekend from the conclusion of school Friday to the commencement of school the following Monday; and
·Each intervening week from the conclusion of school Wednesday until the commencement of school Friday,
being a total of 5 nights each fortnight.
That time ceased abruptly following the “meltdown” on 29 June 2018. On 15 October 2018 all existing orders for X to spend time with his father were suspended and replaced with an order providing for him to spend time with his father from 2.00 pm to 6.00 pm each Saturday, with handovers at F Cafe in J Centre. X continued to see his father at his soccer training and games as his father was the coach of X’s team.
It was the mother’s evidence as contained in paragraphs 173 to 175 of her affidavit filed 6 February 2020 that:
·On 29 June 2018 her mother had attended at X’s school to collect X;
·At 3:15pm she had received a telephone call from her mother advising that X was extremely distressed and crying when she attended at the school;
·That she left her employment and returned home;
·That X was quiet and clingy and clearly had been crying; and
·X did not respond to her question as to what had happened.
X spoke with a member of the school staff at the time of the incident.
X attends the EE School at Suburb N. The school arranged for X to attend upon Ms M, a counsellor employed by K Centre who provides counselling at varying schools. Ms M’s notes comprised exhibit “M3” in the proceedings.
She was subpoenaed to give oral evidence and provide her notes. Despite significant efforts, particularly on the part of the father’s counsel, to gain a broader understanding of the discussions she had with X, she was clear in her evidence that she could not remember anything that was not contained in her notes.
Ms M saw X on each of 3 and 31 July 2018, 28 August 2018, 16 and 25 October 2018, 5 and 19 February 2019 and 14 May 2019.
In the first session on 3 July 2018 Ms M reported in her notes that X said:
·He finds it difficult to spend time with dad because he gets really angry and is scary;
·He will go to his room and wait for his father to calm down when he gets mad;
·Lots of things make him angry;
·He has hurt X’s feelings and made him feel really annoyed;
·X would rather spend all his time with his mother and not have to see his father at all;
·If his dad didn’t get angry it would be different and he wouldn’t mind spending time with him; and
·He sometimes worries his dad will physically hurt him when he’s angry.
At the appointment on 31 July 2018 Ms M noted X said:
·He hadn’t had contact with his dad for weeks and is feeling happy about that but a little confused because he usually sees him weekly;
·He has been really happy with the amount of time he spent with his mum, especially in the holiday to Melbourne;
·He finds he worries in the night about this more than the day because at school and with his mum there are lots of things to occupy him and he doesn’t think about it;
·He did a body scan (explained by the witness to be a use of colours to represent feelings in the body but which was not before the Court);
·He was able to present a balanced, happy indication of how he is feeling;
·He was cautious about saying anything negative and actively worked on the positive things that happen around him;
·He stated how his dad gets angry a lot;
·His visits usually start off nice but his dad gets mean and shouts at him when he asks questions;
·X did not share with her any of the issues that were concerning for staff or those that were reported by staff to “Mr P”; and
·X would like to continue counselling although he has nothing that’s really bothering him.
At X’s next appointment on 28 August 2018 Ms M noted:
·X is still only in the care of his mother;
·X shared that he thinks he might be seeing dad at his place again next month;
·He stated his mum and dad were working it out at the moment;
·He said he was a bit worried about his dad might be like he was before with getting angry;
·X says he is scared and sad at this dad’s place but only 50 per cent of the time – sometimes he is happy and anxious but scared and sad are bigger there;
·He describes his mum’s place as happier – is sometimes sad, annoyed and scared but only one per cent of the time;
·X describes school as a safe place; and
·He enjoys learning and being with friends.
At the appointment on 16 October 2018 Ms M noted:
·X presented calm and settled;
·Shared he will be spending time with his dad again but only for four to five hours not for several days as before;
·Said the Judge made a decision and he and his mum are happy with the outcome;
·X is unsure of how the swap over with his parents will occur;
·He is a little worried that everyone will know when and where to go for handover;
·He will discuss it with his mother if he feels anxious before access;
·X would like his dog to be there when he goes with his dad but was worried the dog might not know his dad wasn’t stealing him and attack because the dog is there to protect X; and
·X appears to have no anxiety around his dad’s impending access at the moment and has several things he is looking forward to doing at the visit.
At the counselling on 25 October 2018 Ms M reported:
·X appears to be happy and settled;
·He had a good visit with his dad and seems to be happy with his contact arrangements;
·He played golf and is keen to spend his time with his father doing this activity; and
·His mother returns to Court early November to discuss custody arrangements.
On 5 February 2019 Ms M noted:
·X appears settled and in a routine of spending time with his dad;
·Currently he has half day/overnight/half day access;
·X has expressed a desire for it to go back to what it was before with longer access and more overnight visits;
·X is unsure if the arrangements were court ordered or an agreement between his parents; and
·X is enjoying his time with both parents at the moment.
On 19 February 2019 Ms M noted:
·X worries that when he starts to spend more time with his dad his dad might start getting angry with him again;
·X stated he was able to work out when this happens during his visit and the things that occur that make him feel wobbly about being with his dad;
·X identifies that he worries when his dad takes a long time to come back downstairs after turning off the alarm;
·X stated his dad is trying really hard to do things that make X feel comfortable so he can keep spending time with him;
·X feels if he talks to his dad about how he feels he will be able to make him feel better;
·X will talk to his dad about coming with him when he turns off the alarm; and
·X did a drawing (included in the notes) to show to each of his parents about how he feels.
On 14 May 2019 being the last counselling session, Ms M reported:
·X has stated he’s doing well;
·X doesn’t have anything he’s worried about at the moment;
·X has presented as happy and relaxed;
·Interacting with peers at school; and
·Counselling discontinued.
As at the commencement of trial on Monday 8 February 2021, X continued to spend time with his father pursuant to paragraph 2 of the order of 7 December 2018 on two out of every three consecutive weekends from 9.00 am Saturday to 2.00 pm Sunday.
RELEVANT LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (‘the Act’) provides the legislative framework within which the Court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards to children’s orders, namely to ensure that the best interests of the children are met by:
(a)ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential;
(d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects are set out in Section 60B(2) and provide that, except when it is or would be contrary to the child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order.[1] To determine the best interests of a child the Court must consider the factors set out in section 60CC(2) and (3) of the Act.
[1] Family Law Act 1975 s 60CA
Section 61DA of the Family Law Act 1975 (as amended) provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the Court is satisfied that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility.[2]
[2] Family Law Act 1975 s 65DA(1)(2)(4)
In the event that an order is made for equal shared parental responsibility the Court must consider whether it is in the child’s best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur.[3]
[3] Family Law Act 1975 s 65DAA(1)
If the Court determines that such an order is not in the child’s best interests, it must consider whether it would be in the child’s best interest to spend substantial and significant time with each parent and whether that is reasonably practicable.[4]
[4] Family Law Act 1975 s 65DAA(2)
The Act defines what is meant by substantial and significant time,[5] and specifies that the Court must have regard to certain issues when deciding whether orders are reasonably practicable.[6]
[5] Family Law Act 1975 s 65DAA(3)
[6] Family Law Act 1975 s 65DAA(5)
EVIDENCE AND FINDINGS
It is convenient to deal with the areas of dispute in this matter by way of considering the parties’ evidence as it applies to the relevant provisions of the legislation.
SECTION 60CC(2) – PRIMARY CONSIDERATIONS
a) the benefit to the child of having a meaningful relationship with both of the child’s parents.
However much the parties may dislike and mistrust the other of them, neither parent suggests that it is other than in X’s best interests to have a meaningful relationship with the other of them.
X currently spends time with his father pursuant to the order of 7 December 2018. That provides for him to spend time with his father on two out of every three consecutive weekends from 9.00 am Saturday to 2.00 pm Sunday.
The orders proposed by each of the parties contemplate X having a meaningful relationship with the other of them. The orders that have been in place since October 2013 have facilitated and supported such meaningful relationships.
The orders proposed by the mother would reduce X’s time with his father from the original five overnight periods per fortnight to two overnight periods per fortnight with additional time for an evening meal each Wednesday. There is no proposal advanced by the mother to facilitate X spending any additional time with his father during school holidays.
The orders proposed by the father would increase the overnight periods X spends with him each fortnight from the original five to seven. Such an order would automatically encompass school holiday time under the father’s proposal.
I find that it is inherent in the proposals of each of the father and the mother that they acknowledge that it is to X’s benefit to have a meaningful relationship with the other of them. They are not agreed as to how that is to be best achieved.
There is no doubt the mother continues to have a high level of anxiety as to the impact on X of what she is convinced are displays of anger directed towards X by the father similar to what she experienced during the period of the relationship.
There is no doubt that the father is of the view that the mother is unreasonably anxious about X spending time with him such that she is attempting to minimise that time and thereby impact on their meaningful relationship.
The level of distrust between the parties is high.
I find however, taking into account the evidence relied on by both parties, that they each acknowledge, albeit it with some reluctance, that X loves both of them, has a meaningful relationship with the other of them and that there is benefit to him having such relationships.
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
Both parties acknowledged in evidence that during the two year period between X’s birth and their separation he was exposed to an environment in which many arguments occurred between the parties, often in circumstances of raised voices and heightened emotions.
There is no evidence before the Court of either party being physically violent towards the other of them either in X’s presence or otherwise or either parent being physically violent towards X.
What is of significant concern however is the question of what impact very different personalities and parenting styles exhibited by each of X’s parents may have on his psychological wellbeing.
The separation in 2012 occurred in circumstances where on the mother’s case she could no longer tolerate what she perceived to be the father’s unreasonable and inexplicable anger frequently expressed towards her. She found his conduct abusive and frightening and determined that she could no longer remain in that environment for her own wellbeing but more particularly, because of X’s exposure to that behaviour.
It was her evidence that the father had conceded in discussions with her that his own upbringing had occurred in a household were he had experienced his father’s anger to the extent that he considered he grew up in an abusive household.
The issue had become so significant in the period of the parties’ relationship that assistance was sought by both of the parties individually and jointly to try and resolve the high level of conflict occurring between them.
Prior to separation the father consulted a Mr Q who, according to the father’s evidence in cross-examination, he saw because the marriage was breaking down, the mother was saying that he needed “anger management” and he was anxious to save the marriage. It was his evidence however that Mr Q told him he had a marriage problem and not an anger problem, and that he needed marriage counselling.
Some months later in 2011 the mother and father attended counselling with a Ms R. The father conceded he refused to go back to that counsellor after the first appointment in circumstances where he formed the view that the mother had spoken with the counsellor when he was not present and given the counsellor an impression of him that was not helpful.
The parties then attended on approximately ten occasions with a further counsellor Ms S. It was the mother who then became concerned about continuing to attend on Ms S in circumstances where the parties had begun to see her separately and the mother formed the view that as a result of what the father had said to Ms S, Ms S had assessed her as being over-anxious.
In approximately November 2011 the parties separated for about one week.
In late 2011 the father commenced attending on a psychologist Ms T.
Ms T’s notes relating to attendances with the father on 8 December 2011, 29 December 2011 and 11 January 2012 referred to the father presenting with, inter alia, concerns about anger outbursts, suicidal ideation (without intent) and to a goal, namely, “want to work on anger and have more adaptive coping strategies, reduce ‘reactivity to triggers – when wife Ms Kenneth gets angry’”. He reported, according to the notes, that the parties had separated two weeks previously, were then living together again but in different rooms and seeing a marriage counsellor. He described growing up in an “abusive environment” and to having a father who was “abusive”. Ms T’s notes comprised exhibit “M5”.

Annexure “M2” to the mother’s trial affidavit filed 6 February 2020 comprised two letters of report from Ms T to the father’s general practitioner Dr V dated 15 December 2011 and 3 October 2012 respectively.
The first letter of report primarily referred to the matters that I have just set out herein. The second letter of report referred to the father having attended nine sessions over a period of seven months, with his initial presentation being consistent with a diagnosis of major depressive disorder exacerbated by relationship stressors.
Ms T referred to the father reporting significant improvement in his mood as well as improving his ability “to recognise and challenge depressive thinking styles and distorted cognitions maintaining low mood and anger.”
The parties also agreed to attend further counselling with a Mr W.
In cross‑examination however the father said the parties only attended Mr W on one occasion and that it was a last attempt by both of them to reconcile. When attending for an intake interview he had a conversation with Mr W, told him that he did not think counselling was working, that he was concerned for his health and thought he needed a break. He only spoke with Mr W for some 15 to 20 minutes.
The father conceded that the mother kept on seeing Mr W separately, that the parties then went on a “couples retreat” in Y Town in Victoria and shortly thereafter on 6 August 2012 separated.
On 3 October 2012 parenting orders were made including the following:
The father do attend for individual counselling on a one-on-one basis in respect of anger management at the Suburb Z office of AA Services or the Suburb GG office of BB Services and the father provide a report of the counsellor in respect of whether or not it would be appropriate for the father to attend a general course in respect of anger management.
Exhibit “M4” in these proceedings consisted of correspondence from Mr H, Psychologist, to the father’s solicitor dated 10 December 2012, 23 January 2013 and 7 June 2013.
In the first report Mr H said that:
Mr Kenneth could readily be challenged and invited to consider and recognise a significant level of responsibility for his own behaviour in situations of conflict; in particular “shouting and swearing” at Ms Kenneth. He does regard this behaviour as unacceptable and was able to detail steps that he has taken in the past to try and correct these reactions, through consultation with psychologists and counsellors.
On the second page he further stated:
Through discussing his account of problems in his own reactions and in the relationship, Mr Kenneth was able to move beyond preoccupation with blame towards Ms Kenneth and to recognise and acknowledge aspects of his own reactivity which have led to Ms Kenneth feeling hurt and threatened. He regarded these reactions as troubling and unacceptable and detailed times when he had been motivated to seek professional help to address them. Mr Kenneth was able to describe a range of strategies that were addressed in therapeutic intervention, to correct his own reactivity. Whilst he may not have always applied these strategies effectively, it is evident that he has covered much of the groundwork that would be the focus of the anger management course.
On page three of the first report Mr H said:
When I raised the issue of the effect of his reactive behaviour including shouting and swearing and of conflict in the relationship upon their son X Mr Kenneth was initially dismissive that this might have had any impact. He suggested that X would never have been exposed to this behaviour. When I challenged this as unlikely, Mr Kenneth was able to recognise that he was underestimating likely effects and that there would inevitably have been times when X was exposed to this behaviour.
He went on to say:
It is evident that Mr Kenneth has been caught up in and highly preoccupied with an adversarial pattern of dispute with Ms Kenneth. In this context Mr Kenneth has reacted with intense judgement and blame towards Ms Kenneth. However, in this interview he was able to move beyond blame and take responsibility for some of his own reactive behaviour.
Mr H then set out what he considered to be illustrations of the ability to which he referred, at the end of which he said:
It is evident that Mr Kenneth has not consistently acted upon these realisations in relation to Ms Kenneth.
He opined that Mr Kenneth would not likely benefit from courses at AA Services or BB Services because of their educative nature, taking into account the education that Mr Kenneth had discussed in detail with him to that date from various sources. He confirmed that the father “does recognise the need to manage his own reactions regardless of circumstances, including relational dispute.”
On page 4 of his report Mr H said:
Any further therapeutic intervention might best be focussed upon assisting him to develop better understanding of the impact of past reactive behaviour and dispute upon his son X. Indeed this consequence of reactivity was the most underestimated by Mr Kenneth…Such child-focused intervention is likely to subvert the tendency towards judgement and blame of Ms Kenneth and address the issue of primary concern regarding providing sensitive and responsive parenting for X.
He finished the report in the following terms:
In conclusion, I do not think that a course in anger management would be the most helpful intervention for Mr Kenneth at this time. However, therapeutic intervention which addressed the effects of reactivity and dispute upon his son could indeed extend his commitment towards responsible parenting.
The correspondence of 23 January 2013 was directed towards the practicalities of the therapy to which he had referred, and the report of 7 June 2013 summarised Mr Kenneth’s attendances upon him on five occasions between December 2012 and May 2013.
He described the father as having participated:
…in an open and constructive manner whilst addressing issues which related to his family of origin, his relationship and separation from Ms Kenneth and the potential impact of past reactive behaviour and disputes upon his son X.
He described Mr Kenneth as having developed “insight, understanding” and an increased capacity to provide “protective and nurturing care” to X and referred to him focussing in the later meetings “on relinquishing long standing feelings of resentment towards his ex‑partner.”
He further described Mr Kenneth as “demonstrating a mature capacity to prepare himself and plan for increasingly sensitive and child-focussed time with X” and that he “demonstrated readiness and a capacity to provide protective and child-focused parenting with his son.”
In closing Mr H reported that he had made no further appointments to see the father in circumstances where he was satisfied he could conduct himself “in an appropriate and sensitive manner with his son, despite differences that appear to remain between himself and his ex‑partner.”
Prior to the orders of 10 October 2013 the mother had also sought counselling.
She attended upon psychologist Ms CC. Ms CC did not give evidence although some of her notes relating to her attendances on the mother between 13 August 2013 and 26 September 2017 were before the Court, comprising part of exhibit “F1”.
The mother conceded that in meetings with her psychologist prior to the making of the final consent order, she expressed her concern about the ability of the father to regulate his moods during time that X spent in his care. When questioned by Mr Bowler as to why she had nevertheless consented to the orders of 10 October 2013, it was her evidence that she was somewhat comforted by the reports of Mr H and was at the very least hopeful that there would be a change in the father’s ability to regulate his anger and reactivity.
As at cross-examination on 10 February 2021 the father reluctantly conceded that he still held animosity towards the mother.
When first questioned about that issue I find that he attempted to avoid answering by saying

“I don’t like conflict – I didn’t want to be in this situation – I would like to move forward” before, upon the second asking of whether he still held animosity toward the mother,

he conceded that he did so.
It was the mother’s case that for the entire period from the time of separation to the time of trial she maintained her concern about the capacity of the father to regulate his temper, primarily because of:
·the father’s presentation at handovers where he frequently appeared angry and/or would look at her in a hostile manner such that ultimately she arranged for her mother to be present at her home on most handover occasions; and
·frequent reports to her from X upon returning from spending time with his father to the effect that he had been angry with X and that X had been scared and upset.
When X spoke with Ms C for the purpose of her preparation of the Family Assessment Report dated 26 February 2019, he described himself as always feeling like he was

“stuck in the middle” of his parents’ conflict.[7]
[7] Family Assessment Report of Ms C dated 26 February 2019 – paragraph 93
I had the opportunity to observe both parties over four consecutive days of trial between 8 and 11 February 2021, as well as briefly on 18 November 2020.
The tension was palpable.
It was clear from the presentation of each of the parties both in the witness box and in the body of the court that they had not ‘moved on’ from their respective positions since the time of the first proceedings. There remained a high level of conflict notwithstanding a veneer of civility.
I find that it is in X’s best interests to ensure that parenting orders made in these proceedings take into account the need for X to be protected from psychological harm arising from the ongoing conflict between his parents which could be described both as abusive and/or neglectful.
X has not been physically abused. He has however experienced conflict between his parents since the time of his birth.
During the first two years of his life he was certainly subjected to angry and aggressive behaviour on the part of his father towards his mother, as acknowledged by the father in his discussions with Mr H. His mother was frightened by that behaviour. She eventually separated from the father as a result of frequent exposure to verbally aggressive behaviour towards her by the father.
Notwithstanding many years of therapy ending in 2017, it was clear from the mother’s physical presentation, her evidence-in-chief and in cross-examination that she remains very anxious about the father’s ability to regulate his anger and outbursts of temper towards X.
This behaviour has been discussed by X with both Ms M and Ms C.
X has had no opportunity since his parents separated to observe them behaving in a friendly manner towards each other, or indeed, other than in a manner that could best be described as tense civility. There is little wonder that he feels like he is “stuck in the middle”.
I find that since the incident on 29 June 2018 and the impact of that incident on his relationship with X, including the amount of time X was able to spend with him, that the father has increasingly accepted that it is important to acknowledge X’s concerns as expressed to his mother over several years. I find on the evidence, particularly arising from comments made by X both to Ms M and to Ms C, that X is less anxious in his father’s care and feels that his father’s behaviour has ameliorated.
I am satisfied that X can be protected by injunctive orders that go to regulating the behaviour of the parties each towards the other and ensuring that X is not drawn into their conflict as a result of discussions with him.
I find that the father would not benefit from any further attendance upon a therapist with respect to anger management if same was ordered by the Court. It may be however that after the experience of this trial he would voluntarily seek such assistance particularly in the terms of Mr H’s suggestion set out in paragraph 87 hereof.
SECTION 60CC(3) – ADDITIONAL CONSIDERATIONS
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
I am not satisfied that X’s views are either clear or that, in the circumstances of this case, they are views upon which the Court should place any significant weight notwithstanding that he is now aged ten years and seven months.
The most recent objective evidence regarding his views as to his parenting arrangements arise from the notes of Ms M to which I have already referred covering a period between July 2018 and May 2019, a ‘section 11F’ memorandum dated 5 November 2018 and the report of Ms C dated 26 February 2019.
I have already referred to the matters of concern X raised with Ms M regarding his interactions with and behaviour of his father.
Across the period that X spoke with Ms M he also spoke with Family Consultant Ms DD on 5 November 2018, as reported by her in the Child Inclusive Memorandum of the same date.
Ms DD described him as being “somewhat reluctant at times to discuss his family or his feelings in detail” and she referred to him using avoidance techniques such as being “unable to remember” a question that she asked him about the family or commenting that the question was a “hard one”. He confirmed to her that he found such avoidance easier than discussing the topic.
He presented in a similar manner to Ms C who, in paragraph 83 of her Family Assessment Report, stated:
…However, when asked about his family, X appeared more open discussing Ms Kenneth and struggled to provide discussion about Mr Kenneth. Moreover, when prompted for a description, X appeared more uncomfortable and his discussions became more uncertain.
She went on to say in paragraph 84:
Of note was that as X began to reflect upon his care situation, he became teary and he began to reflect upon the conflict which ensued between his parents and the worries which he was concerned about.
X told Ms DD that last year his dad had been “really mean” and that at the time of interview, wanted a “week on and week off” care arrangement. He gave an example of his father being mean as getting cross with him when he tried to talk to his father when his father was on a telephone call. He said that when he had used the word “shouted” it was “not technically shouting” but was “half shouting”.
He told Ms DD that his father sometimes made him cry resulting in X going to his room but he couldn’t remember what had caused him to cry and said the question was a “hard one”. He told Ms DD that his father had “changed a lot” since he had not seen him for “half a year” and that his father was “not shouting as much” anymore.
He discussed activities he enjoyed with his father and was only able to describe being made to eat foods that he didn’t like as his father’s worst characteristic.
He apparently nodded when Ms DD asked if he ever felt scared with his father but was unable to discuss that further.
He also told Ms DD that if possible he would like to have a bit more time with his father such as a day or two and suggested Saturday morning until Sunday noon would perhaps accommodate what he thought would be suitable time spending, but he wasn’t sure if he wanted that to happen every week.
He told Ms DD that he wasn’t sure about the week-about care arrangement that he knew his father was trying to achieve but told her he had told his father that that arrangement would be “good” in case his father “yells again”. He denied he had told his father it would be “excellent”.
He described to Ms DD what he considered to be his mother’s kindness, was unable to recall her worst characteristic and said that if he felt sad in his mother’s care it was not as much as he did at his dad’s. He told her he did not really ever feel scared while in his mother’ care even when he misbehaved and further, that if he was able to change anything about his family he wished that his father was not “so mean” but didn’t want to expand upon that comment further.
Ms C discussed with X his views about his parenting arrangements. She reported on that discussion in paragraphs 91 to 96 of her Family Assessment Report dated 26 February 2019.
In particular, in paragraph 96, she referred to X initially stating that he would be agreeable to “week on week off” telling her that as he had an iPad at his father’s house he could “FaceTime mum when I’m upset”. He claimed that if his father became angry he would

“just manage like I did last time”.
X then stated that he wanted to spend every second weekend Friday to Sunday with maybe a day during the week with his father and later requested that Ms C tell him what she had documented. When she repeated what X had said to her she reported that he “reiterated a desire for time on alternate weekends and in the intervening week.”
It was clear from X’s discussions both with Ms DD in November 2018 and with Ms C in February 2019 that both of X’s parents had spoken with him about their views concerning his time with each of them.
It was the father’s evidence in cross-examination that the “conversation” with X about the issue of equal shared parenting time commenced in or about March 2018.
The father conceded that as of about that time he commenced discussions with X about the concept of X moving to an equal shared care arrangement between his parents’ households. He denied those conversations were “multiple” as apparently reported to the mother by X, but conceded he could understand X going back to his mother saying such issues had been discussed. He conceded that the conversation about parenting time could have put X under pressure but said that is why it did not occur on multiple occasions.
When asked whether in hindsight such an approach to X was appropriate, the father said that it was necessary for him to understand how X was “travelling”.
It was his evidence that he had attended at the Children’s program in either 2012 or 2013 and had learnt a lot because the program “gives a child’s perspective” on how children can reflect internally on issues and internalise and carry burdens.
When asked whether the discussions the father initiated with X about parenting arrangements were appropriate in light of what he had learned at that program, the father replied that he needed to have some level of understanding of what X felt.
There is no evidence that the mother had any such discussions with X at least until after X had told her about the discussions he had with his father.
The mother’s evidence regarding X telling her about conversations with his father is contained in paragraphs 154 to 159 of her trial affidavit.
She deposed to X first telling her in April 2017 that his father had told him that he would be living with his father for one week and with her for the other week to make it “fair”. She said X told her that his father had said “the boss” would say that was how it was going to be, and when she asked X who the father was referring to X responded “the Judge”. She described X becoming upset and crying and telling her that if he told the Judge that he wanted to stay with her his father would get angry with him.
She described conversations with X continuing regarding his father telling him that there would be a change in the living arrangements, and to X continuing to be distressed and tearful. She said he told her that he didn’t want to go to his father’s for a week but that he had told his father that he did so that his father didn’t become upset or angry with him.
In paragraph 157 of her trial affidavit the mother referred to X’s reports of discussions with his father about that topic increasing in the first half of 2018, and to X saying that he understood from his father that as and from his eighth birthday he would live with his parents on a week‑about basis. The mother's evidence was that X became increasingly upset about the concept.
X’s reports to both Ms DD and Ms C suggested the mother did speak with him about the issue of time spending with each parent but a significantly less than did his father. From those discussions with her he was clearly of the understanding that her preference was for time spending with his father not to extend past the order existing at that time. On the evidence of both parties, by the time of these discussions X was spending five nights per fortnight in the care of his father pursuant to the 2013 order.

It is unfortunate that the father did not appreciate the enormous pressure the initiating of such discussions with X placed on the child. There is little wonder that he reported to Ms C that he was "stuck in the middle".
I am not satisfied on any evidence that X’s preference is for any significant increase in time with his father.
X certainly told Ms C, as reported in paragraph 91 of her Family Assessment Report, that his father told him he wanted to go on holidays with him. I find on the evidence of both parties and from X’s discussions with Ms DD and Ms C that the idea of a change to week-about care arrangements was a concept initiated by the father in discussions with X, and not a concept initiated by X.
I find in this case that the burden X has been carrying for some time as to what his care arrangements should be needs to be removed from him by way of a decision being made by the Court and explained to him, subsequent to the making of the order, by Ms C.
It would be appropriate for Ms C to explain to X that the Court took into account the views he expressed to various people but made its own decision based on listening to both of his parents, as well as listening to him through the experts. Ms C will need to consider these reasons before that discussion.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child).
I find that X has a close and loving relationship with each of his parents.
I find that the mother is X’s primary caregiver. She has been so at least since the parties’ separation, a period which encompasses the majority of X’s life. I find also that X is confident in having the majority of his needs met in both of his parents’ households.
On the unshaken evidence of Ms C, and taking into account the evidence of Ms M and the unchallenged report of Ms DD, I find that X has a very secure emotional relationship with his mother. He has, on occasions, found the security of his emotional relationship with his father more challenging and on occasions, frightening. I find this is because of the greater tendency on the part of his father to make clear to X that he is unhappy about something that X has said or done by way of more directly expressing this dissatisfaction. This no doubt results in X doing whatever he feels is necessary to ensure his safety, described by him to Ms C as “just manage like I did last time”.
There is no doubt that such behaviour of the father has ameliorated over time as reported by X to Ms M and to Ms C. X now has less concern about being exposed to his father’s displeasure and hence is, at the time of trial, experiencing a more secure and confident relationship with his father.
It is of some concern that the mother’s responses to X’s complaints or concerns as expressed to her from time to time about his father’s behaviour have been consistent wholehearted acceptance, rather than her challenging those fears and concerns at any level such to assist X to challenge his own perceptions of his father’s conduct and his reactions to that conduct. Such an approach has possibly led to X having a somewhat idealised concept of his mother. On one hand this no doubt provides him with complete emotional security but on the other, perhaps does not assist him with resilience.
I find that X has been genuinely troubled by what he perceives to be his father’s anger from time to time and that such concern has led to trepidation on occasions about spending time with his father. That situation seems, by the time of trial, to have improved significantly.
His parents have polar-opposite personalities. X loves each of them, but it is clearly hard for him to negotiate the personality chasm from time to time.
I find, taking those matters into account, that notwithstanding X’s great love for both of his parents, he identifies more with the softer, less resilient nature of his mother and that his primary emotional dependency lies with his mother at this time.
I find that X also has a close relationship with his maternal grandmother who has played a significant role in his day-to-day care.
X has had less opportunity to spend time with his paternal grandparents but there is no evidence to suggest that he does not love and is not loved by them. I am satisfied on the evidence however that that relationship is not as emotionally close as his relationship with his maternal grandmother.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
Final parenting orders have been in place with respect to X’s day-to-day care since the consent order made on 10 October 2013.
Both parties have complied with the orders save and except in the period from late June 2018 to 15 October 2018.
The only major long-term issue that has arisen with respect to X during his lifetime is that relating to his education. I am satisfied that both parents agreed to X attending at the EE School, and the evidence of both parties at trial was that, subject to availability for him at B School, they are both agreeable to him attending at that school for his secondary education.
Both parties have spent time with X and communicated with him in accordance with the orders, and the father has also taken the opportunity to participate in X’s soccer activities which course of action has not been opposed by the mother.
I am satisfied that both parents have demonstrated that they love X dearly and want to play as great a role in his life as possible taking into account his best interests.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
There was no dispute between the parents that the father has always paid child support as assessed. This assessment recognised that both parents have an obligation to maintain X based on their respective incomes.
It was however of some concern that the father conceded in evidence that child support post‑separation was an issue between the parties. He conceded that he originally considered the actions taken by the mother after what might be described as the ‘school meltdown’ in June 2018, resulting in the current round of proceedings, to be deliberate actions taken on her part to increase the amount of child support to which she would be entitled.
Although the father said in cross-examination that this was no longer his view, his answer could only be described as reluctant.
When asked how many applications he had made to the Child Support Agency for variations to his child support liability since the 2013 consent orders, he replied that he thought there had been one.
He was initially unable to recall the smallest amount in respect of which he had sought a credit adjustment from the Child Support Agency. He denied that it was for the sum of $50 in 2014. When asked to consider the contents of a letter from the Child Support Agency to the mother dated 28 May 2014[8] he conceded he had indeed sought such a credit. When asked his income at the time of making that application he said he was earning perhaps $100,000 per year.
[8] Mother’s trial affidavit filed 6 February 2020, annexure M5
He agreed that in December 2015 he had made further application to the Child Support Agency to have a payment of $384.50 designated as a non-agency payment to reduce the amount of child support payable to the mother. He conceded that application was unsuccessful. It was his evidence that at that time his salary was approximately $130,000 per annum.
He also agreed that in January 2016 he made another application for a Change of Child Support Assessment to bring to account his payment of fifty per cent of X’s school costs and fees and the cost to him of renting accommodation during the period that his home was constructed at Suburb N. He conceded that he sought to reduce the amount of child support by $8,589 per year.[9]
[9] Mother’s trial affidavit filed 6 February 2020, paragraph 149
He further conceded that all of his applications were unsuccessful, that the mother was paying her half-share of X’s school fees and costs at the EE School and that at the time of making the latter of the applications to the Agency, his taxable income was $144,635 per annum.
The father agreed that at the time X started at the EE School there was a dispute with the mother as to the payment of stationery costs for X and that he sought reimbursement from her of $33.30. He agreed that he had told the mother he would not pay those monies to her unless he received a receipt for the stationery to produce to the Child Support Agency to enable him to make a further application for adjustment.
It was the father’s evidence that at that time his income was probably $140,000 per year and that at the time of trial he was earning approximately $200,000 per year.
When asked why he considered it appropriate to seek reimbursement from the mother of $33.30, he said that was because of information provided to him. When it was put to him that the information would only be provided to him if he asked for the information, he said it was during a conversation initiated by a work colleague who was inferring that he (the father) was paying too much by way of child support.
The father further agreed that in November 2019 he had also filed an objection to a decision made by the Child Support Agency on 7 November 2019 and that his objection was dismissed.
The father was asked if it was his view that the mother had deliberately ceased employment to achieve an increase in child support. He replied that it was his view at the time it occurred, but not at the time of trial. When asked again if he conceded that the mother’s actions in July 2018 were not based on issues of child support, he conceded that to be the position.
I am satisfied that both parents have fulfilled their obligation to maintain X but that there has been reluctance and resentment on the part of the father on occasions that has led him to make quite extraordinary applications to the Child Support Agency with respect to what might be described as ‘petty’ sums for reimbursement or credit to his liability.
I find the applications have been based not so much on any desire to see X “go without” but rather, based on an animosity towards the mother and a determination that she will not receive any amount whatsoever that may be over and above the strict liability that he has towards his child support obligations.
Nevertheless, I find that the father has and will continue to pay his assessed child support liability for X. I find that none of the actions taken by the mother with respect to parenting issues during the period between the making of the final consent order in October 2013 and the date of trial, had their genesis in issues of child support.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
This is an important factor in this case.
Between 10 October 2013 and 29 June 2018, a period of nearly five years, X spent time with his father;
·Initially until July 2014:
·From 11.00 am Saturday to 11.00 am Sunday each alternate weekend;
·From 9.00 am to 5.00 pm each intervening Sunday;
·On Mondays and Thursdays from 4.30 pm to 7.00 pm;
·Between 31 July 2014 and 31 July 2015:
·From 11.00 am Saturday to 11.00 am Sunday each alternate weekend;
·From 9.00 am Sunday until the commencement of child care on Monday each intervening week;
·On Mondays and Thursdays from 4.30 pm to 7.00 pm;
·Between 31 July 2015 to the commencement of Term 1 in 2017:
·From the conclusion of school or kindergarten or child care Friday to 5.00 pm Sunday each alternate weekend;
·From the conclusion of school or kindergarten or child care Wednesday to the commencement of same Friday;
·As and from Term 1 in 2017:
·Each alternate weekend from the conclusion of school Friday until the commencement of school Monday;
·Each intervening week from the conclusion of school Wednesday until the commencement of school Friday;
·At such other times as may be agreed between the parties.
In addition, orders were made for time spending on Christmas Eve, Christmas Day and Boxing Day each year, on X’s birthday, on each of the parties’ birthdays and on Mother’s Day and Father’s Day each year.
It is clear from the terms of the order of 10 October 2013 that X’s time with his father gradually increased commensurate with his increasing maturity, noting that at the time the orders commenced he was only three years old.
Prior to the current proceedings being initiated by the mother on 11 July 2018, neither party sought any variation to the orders of 10 October 2013.
I referred early in these reasons to the unfortunate inclusion, in what was otherwise a comprehensive and entirely appropriate parenting order, a paragraph that laid the foundation for future litigation.
Paragraph 14 of that order provided as follows:
That unless the parties agree otherwise in writing, the parties attend mediation at AA Services after 10 July 2018 to discuss the topics of the child’s care arrangements and the condition contained in paragraph 6 herein.
Paragraph 6 provided that it be a condition of the orders of 10 October 2013 that the father be personally present to supervise X if one or both of his parents was present.
I have no doubt that on the one hand the father eagerly anticipated the opportunity to enter into negotiations with the mother with the intention of pursuing his aim of equal shared parenting time for X as and from 10 July 2018 and that, to the contrary, the mother dreaded any such discussions.
The father conceded in cross-examination that he had discussions with X across 2018 with respect to his desire to move X to an equal shared care parenting arrangement with the mother. I find that those discussions had commenced by the early part of 2017.
The mother agreed in cross-examination that the 2013 orders were subject to review after 10 July 2018. She denied that she had significant fears about the mediation being an opportunity for the father to press for equal time with X.
She said she thought that she and the father would discuss “how things were going” for X. She said she was never aware that the father would seek to have X in his care for equal time as it was never discussed with the father.
I do not accept the mother’s evidence in that regard.
It is clear on the mother’s evidence that she sought therapy for many years to deal with her anxiety about X’s time with his father, the distress that X presented to her when talking about time with his father, and what she perceived to be her inability to protect X from the father’s anger.
I have no doubt that the mother was well aware that the father would push for significantly more time with X. Whether or not that was exactly equal shared time matters not. Those concerns were heightened as of early 2017, when X began to talk with her about the father’s discussions concerning him living with each of his parents on a week-about basis.
The parents had been on different trajectories for many years. They had not had a productive civil discussion with respect to X’s parenting arrangements in that time.
The mother’s fears with respect to the father’s anger had not been assuaged during that period because of his presentation to her at handover times and X’s frequently expressed concerns about his father’s anger.
The father had not, during that period of time, genuinely accepted any responsibility for his temper and aggression as discussed at length with Mr H in 2012 and 2013, or the impact of that behaviour on the mother and X.
X’s “meltdown” occurred on 29 June 2018, being a Friday.
X had spent time with his father from the conclusion of school on Wednesday 27 June 2018 to the commencement of school on Friday 29 June 2018.
The father agreed in cross-examination that on the evening of Thursday 28 June 2018 he had to take a work call from Country FF, that it went longer than he expected, that he told X he had to take the call for about ten minutes and that the call took longer than expected during which he was interrupted by X. He was unable to explain why X would have perceived his father’s response to him at that time being angry.
It is not necessary to make findings about exactly what occurred.
Rather, it is clear from the discussions X had with Ms M at school, with Ms DD and with Ms C that X was struggling with his father’s demeanour over a long period of time. He was struggling with what I find to be multiple conversations initiated by his father with respect to the time he should spend with each of his parents changing such that he lived with each of them for equal time.
I am satisfied that if orders were made for equal shared parenting time X would find moving between his parents’ households on a weekly basis very difficult. Each of their personalities and their attitudes to life are very different and he would be faced with the constant need to adjust his own behaviour to accommodate those differences.
I find that would be a more difficult adjustment in the household of his father in circumstances where he has struggled over a significant period of time to accept his father’s personality without being distressed by its expression, and the accompanying feelings of fear and distress on occasions.
I accept the father’s evidence that since the incident on 29 June 2018 he has tried very hard to ameliorate the tenor of his expressions of personality in his interactions with X, to the extent that he frequently finds himself “walking on eggshells”.
I have found that X’s primary emotional dependence lies with his mother.
I am satisfied that the change to week-about care proposed by the father is likely to have a deleterious effect on X’s feelings of well-being and security and would not be in his best interests.
I find however that X could well adjust to and enjoy some extension of time with his father during school holiday periods to enable them to enjoy activities together that cannot easily be engaged in during school term time.
X loves his father. He is challenged however by his father’s personality which he perceives to be more aggressive and quick to anger than that of his mother.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Both parents live reasonably proximate to each other and I am not satisfied that this is a relevant factor in this matter.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both parents have the capacity to meet X’s day-to-day care needs.
I find that both parents have an active interest in X’s education, support his education and support his extracurricular activities.
I find that both parents have at times struggled to put X’s emotional needs ahead of their own and in particular, note the mother’s evidence with regard to her responses to concerns expressed to her by X from time to time about his father’s anger.
In cross-examination the mother accepted that in reassuring X that any anger expressed towards him was not his fault but that his father was simply reacting to him in the same way that he had reacted to her during the relationship and post-separation, she was creating a scenario where X would be particularly alive to her anxiety about her interaction with the father.

The mother however conceded in cross-examination that she understood why such a response may not be helpful to X. She said that she understood it was important that X not be alert to her anxiety in terms of her interactions with his father, and that she had done her best to get psychological assistance over a significant period of time to help her better deal with her own distress such that it did not impact on X and his relationship with his father.
There was no doubt from the mother’s presentation that such efforts had not always been successful in building resilience in her. From time to time I find she was unprepared to provide constructive responses to the father about reasonable enquiries which ultimately raised the level of antagonism towards her on the part of the father.
For the father’s part I find on the evidence that he paid lip-service to the concept of having any problems with anger management. His attendances upon Mr H in 2012 and 2013 were, as discussed by Ms C on page 72 of her Family Assessment Report dated 26 February 2019 “not necessary” according to the father. He expressed the view that the attendances only occurred because ordered by the Court and that he attended to “get [the] report” so that allegations about his behaviour would “go away”.
He was previously reported by Ms D on page 9 of her Family Assessment Report dated 26 April 2013[10] as saying that the report of Mr H was “a Barrister’s breakfast”, that Mr H had not seemed to know why he was meeting with Mr Kenneth around that time but perhaps one of the reasons was that he did not consider that Mr Kenneth had a problem.
[10] Affidavit of Georgina Ruth Parker filed 6 February 2020, Annexure “GRP3”
I find taking into account the evidence before the Court contained in the reports of Mr H, the Family Assessment Report of Ms D of 26 April 2013, the report of Ms C dated 26 February 2019 and the evidence of the parties that the father is a person who is quick to anger. I find he struggles at times to comprehend and empathise with the anxiety and trepidation that such behaviour engenders in people close to him from time to time, in particular the mother and X.
I am satisfied that although the father attempted to distance himself in cross-examination from comments he made in particular to Mr H and Ms D as to his experiences of his father’s anger in his own household as a child, that those experiences helped inform the father’s emotional behaviour during the relationship with the mother and with both the mother and X post-separation. I find that even by the time of trial he still found it difficult to understand the impact of his demeanour on both of them from time to time such that it engendered anxiety in both of them.
I have earlier found however that he has made efforts in more recent times to ameliorate his behaviour to ensure that he did not upset or alarm X. It is to be hoped that such an approach, clearly appreciated by X, will continue.
I find that the discussions initiated by the father with X in relation to his living arrangements were sufficiently distressing for X that he felt obliged, as acknowledged to Family Consultant Ms DD, to agree with the proposals to avoid any possibility of his father becoming upset or angry. I find that these discussions intensified X’s concerns, long held as a result of his father’s more direct, blunt and at times frightening presentation, and likely contributed to what has been described as “X’s meltdown” at school on Friday 29 June 2018.
I am satisfied that X does not want to live with his parents on a week-about basis. I have no doubt that objectively the father is aware of that view.
I have some concern about the father’s capacity to provide for X’s emotional needs taking into account his view, at least until trial, that X’s best needs would be met be a complete reversal of his long-term parenting arrangements. Even his determination to pursue week-about care seemed to be more suggestive of a position that neither the mother nor X should be able to dictate to him what should occur.
By the same token, the mother’s determination to pursue a reduction in X’s time with his father, including no proposal for significant holiday time, was not a position that engendered confidence that she would be able to put X’s best interests above her own fears.
I am however satisfied that, at least by the time of trial, matters had settled significantly for X, particularly from the point of view of how his father had taken his anxiety and apprehension into account and ameliorated his presentation. I find that X was enjoying his time with both his parents such that a return to the provisions of the 2013 consent order would be enjoyed by X and be beneficial for him.
I am hopeful that the trial process was, at the very least, educative for both of the parties. I find that by the end of trial both of them were better able to consider X’s emotional needs. It would be in X’s best interests for this approach to continue into the future.
Taking those matters into account together, I find that both parties have the capacities referred to in this factor to provide for X during the time I intend to order he spend with each of them.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
Taking into account the evidence contained in Ms D’s report of April 2013, Ms C’s report of February 2019, the evidence of the parties and the evidence of Ms M, X is a delightful, socially adept, confident, friendly and sociable child who loves both of his parents.
He enjoys his time with both of his parents and each of them have a great deal to offer him in terms of the life experiences he will enjoy with them and exposure to their perspectives about life. Both of X’s parents are intelligent, have a range of interests and have much to offer X in terms of his exposure to each of their lifestyles and interests.
X is also a very sensitive child and will benefit by each of his parents taking that into account but not to extremes as in the case of the mother and overlooked as has been in the case on occasions in the past by the father.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right.
This factor is not relevant to these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Both parents love X and have used their best endeavours to attend to the responsibilities of parenthood to the best of their respective abilities. They have been hampered however in doing so because of the deep level of distrust they each hold towards the other of them. In addition, the father conceded that he still feels animosity towards the mother and the mother exhibits a heightened state of anxiety whenever either she or X interact with the father.
The communication between the parties has been difficult. I accept the evidence of the mother as to the father’s abrupt and at times angry presentation at handover times notwithstanding that such attitude is rarely verbally expressed but rather physically presented.
This behaviour accords with the behaviour discussed by the father at length with the various therapists prior to the initial orders being made in 2013 to which I have already referred at length and the genuine presentation of the mother when giving evidence with respect to that issue.
The father’s demeanour has also been discussed by X at length with at least Ms M and Ms C, as well as with his mother.
The parents mutual antipathy and lack of trust for each other has significantly impacted on X’s emotional well-being such that he clearly felt for a long time, as discussed with Ms C, that he was “stuck in the middle” of his parents dysfunctional relationship, which unfortunately did not improve after their separation.
This has caused X sadness and has also impacted, for the reasons to which I have referred, on the ease of him transitioning, particularly from the care of his mother to that of his father, in circumstances where he has to adjust to two very different personalities, one of which, namely his mothers’, he finds easier to relate to.
It was however pleasing to note that subsequent to the incident on 29 June 2018, the father’s efforts to which I have already referred have clearly made X’s path to having a completely confident relationship with each of his parents much simpler.
The mother conceded that X’s reports to Ms M and to Ms C, to the effect that his father had become calmer in his interactions with X, reassured her as to X’s psychological safety in his father’s care. It was her case however that such reassurance only extended to the prospect of X spending a maximum of two consecutive nights with his father. She expressed concern that longer time periods may expose X to a greater risk of his father’s anger.
The mother was very reluctant throughout the entirety of her cross-examination to concede that she had ever observed X being happy or sharing physical affection with his father at school events attended by both of them and at soccer. I am satisfied that if this interaction was not observed by her it was because she did not want to so observe.
An important responsibility of parenthood is for parents to ensure that they give children the freedom to have a close and meaningful relationship with their other parent without engendering any feelings of disloyalty.
There is no doubt that there have been numerous occasions when X has returned to the care of his mother indicating that he was frightened by his father’s expressions of anger or displeasure. That in turn has led to occasions where he has been reluctant to attend for time with his father for the same reasons. Nevertheless, the evidence clearly shows that orders were always complied with by both parties.
By the time of trial, and during her evidence, the mother was at pains to ensure the Court understood how anxious she was about the risk to X of spending more than two consecutive nights at a time in the care of his father, including during holiday time. I find X is not now concerned about such risk to the same extent as his mother.
I accept the mother’s evidence as to the genesis of that attitude being the father’s aggressive and unpleasant behaviour towards her during the period of the relationship, his acknowledged continuing animosity towards her and a reluctance on the part of the father for a long period of time to acknowledge the impact his behaviour had on the mother and on X.
It is to be hoped that this trial process has been somewhat of a cathartic process for both parties.
There is no doubt on the evidence that the father has ameliorated his conduct and behaviour whilst X is in his care, such that X is now far more relaxed and able to enjoy his time with his father.
It is clear on the evidence that the mother’s high level of anxiety remains but she was able to acknowledge that X’s level of anxiety has significantly reduced.
If the parents do not improve the state of their relationship in a manner apparent to X, things may eventually come to a point where X determines that to protect his own emotional well‑being he will have to take sides. He will no longer be able to tolerate being “stuck in the middle” of his parents conflict.
Whatever the genesis of the difficulties in the parties’ relationship, by the time of trial it was not difficult to see that the ongoing conflict arose as a result of the incapacity of both parents to see matters concerning X from the perspective of the other of them, particularly the mother being unable to give any real credit to the father for his attempts to ameliorate his conduct whilst X is in his care.
X is now nearly 11 years old.
He is growing into a competent and confident young man, no matter what criticisms each parent may have of the other of them.
He is progressing satisfactorily in his education and seems to be socially adept.
X’s education and extracurricular activities are supported by both of his parents.
Each of X’s parents have played a role in that admirable development.
I am satisfied that both parents’ attitudes to X are exemplary and, save as to the issues to which I have referred, they have applied themselves to the responsibilities of parenthood such that X has benefitted from the input of each of them.
(j) any family violence involving the child or a member of the child’s family.
I have referred to this issue earlier when considering the requirements of section 60CC(2)(b).
There are no family violence orders in place and I refer to my earlier finding that X does need to be protected from conflict between his parents but that such a need can be effected by the making of injunctive orders.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)      any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter.
This factor is not relevant to these proceedings.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is to be hoped that whatever orders the Court makes, the parties will desist from any further litigation taking into account X’s age and maturity.
Both parents have, during the course of these proceedings, been able to air their concerns each with respect to the other of them.
It is time for them to put their differences behind them and work towards supporting X in all of life’s endeavours without subjecting him to ongoing stress and tension between them and perceiving a need to placate each of them.
If the father’s more recent gentler approach to his interactions with X is not maintained further difficulties will arise. The first person from whom X will seek assistance will be the mother.
If the mother continues to expose X to her heightened levels of anxiety in relation to anything concerning the father, she runs the risk of her and X’s realities diverging and conflict arising in their relationship.
Neither of those scenarios are helpful for X.
If the determination of the Court is not accepted by both parents, X will continue to be subjected to feelings of conflicted loyalty and insecurity which will not be in his best interests.
PARENTAL RESPONSIBILITY
Parental responsibility is defined in section 61B of the Act as follows:
In this part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility. The section is in the following terms:
1.This section applies if, under a parenting order:
a. 2 or more persons are to share parental responsibility for a child; and
b.the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
2.The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
3.The order is taken to require each of those persons:
a.to consult the other person in relation to the decision to be made about that issue; and
b. to make a genuine effort to come to a joint decision about that issue.
4.To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Section 65DAE makes it clear that there is no need for parents to consult on issues that are not major long term issues. That section is in the following terms:
If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
a.has parental responsibility for the child; or
b. shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major-long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.
Section 61DA of the Act is headed “Presumption of equal shared parental responsibility when making parenting orders”. The section is in the following terms:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a.abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
b.family violence;
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The most common issues that arise that require joint decisions to be made involve schools attended by children, observation of particular events, activities or customs that arise from particular religious and/or cultural beliefs and major health issues arising from serious ill health or accident.
The mother seeks an order for sole parental responsibility, the father seeks an order for equal shared parental responsibility.
Notwithstanding the ongoing conflict between the parties to which I have referred at length, they agreed on the school X was to be enrolled in at the commencement of his formal schooling and have further agreed that in the event of a place being available, he will continue his schooling at B School in due course.
The parents had a dispute about whether X should undertake some training at the church attended by the father and X to become an assistant. That was an issue that was already addressed in the final order of 10 October 2013 in paragraph 9. The terms of that order were as follows:
That the parties liaise with one another, and endeavour to reach agreement, prior to enrolling the child in any extracurricular (including religious) activities.
That was a matter about which the father should clearly have spoken with the mother prior to entering any further discussions with the Priest. I accept his evidence that it just “cropped up” at church. Nevertheless, it is an example of the father not seriously considering when joint decisions need to be made. In the main, the parties have agreed extracurricular activities with some slight disagreements but nothing of any significance.
On one occasion when X was very young and unwell, the father inappropriately refused to allow him to remain in the care of the mother whilst he recovered. He insisted on taking him into his care and taking him to the Hospital. As matters transpired, both parties attended at the hospital and X was treated appropriately.

Equal shared parental responsibility is not an onerous task.
To my mind such an order would be essential if the parties were to achieve anything like the level of civil cooperation that X needs each of them to demonstrate to ensure that the burden of feelings of disloyalty to either parent can be removed from X’s emotional world.
The decisions that are required to be made are limited and do not relate to ordinary matters concerning X’s life or day‑to‑day care with either of his parents. They should not require lengthy and repeated correspondence.
I find that both parents have the capacity to share the parental responsibility for X provided they each acknowledge clearly how much X loves the other of them. With some adjustments on the part of the behaviour of each of them, they can provide X with the emotional security he so clearly craves.
CONCLUSION
This matter was not complex.
The situation arose because of intense and unbearable pressure on X over a period of time contributed to, in their own ways, by each of his parents.
I am satisfied that, albeit with a level of reluctance, the father has realised that the behaviour exhibited towards the mother during the period of the relationship and his often antagonistic approach towards her since separation ultimately resulted in him being embroiled in further court proceedings which could easily have been avoided.
By the same token, I am satisfied that the mother has had the opportunity to appreciate, through the experience of cross-examination, how she has contributed to X’s concerns and how she can help him better manage his parents’ relationship.
In circumstances where I have determined that X’s best interests would be met by an order that his parents have equal shared parental responsibility, I am also required to consider the provisions of section 65DAA of the Act. This section relates to the issue of whether it is in his interests to spend equal time with each of his parents and if not equal time, whether he should spend substantial and significant time with each of his parents.
I find that X is ready to spend more time with his father, and that the five nights per fortnight as originally ordered on 10 October 2013 meet X’s best interests during school term time, as do the orders for special occasion time made by consent at that time.
I do not consider for the reasons discussed, particularly in paragraphs 177 to 206 of these reasons, that X’s best interests would be met by living with each of his parents on a week‑about basis or in any other combination such that he spent equal time with each parent.
The order of 10 October 2013 is silent on the question of school holidays time. I find that now these issues have been aired and the parents have been acquainted with the impact of their behaviour on X, the time has come for the order to include school holiday time. X’s increasing confidence in his relationship with his father also suggests that course to be appropriate.
I do not consider that such holiday time should immediately commence as equal time during the school holidays but rather, should incrementally increase over the next two years such that by the commencement of the 2023 school year X shares his school holiday time equally with each of his parents.
I find that the orders that I propose would ensure that X spends substantial and significant time with each of his parents noting in particular the provisions of section 65DAA(3) of the Act, which define “substantial and significant time”.
I see no basis for a requirement that either of X’s parents be personally responsible for his care during the time he is to spend with them pursuant to the orders. They are each capable parents who I am sure have the capacity to make appropriate arrangements for X. By the time the equal school holiday time starts to occur, X will have already been at high school for at least 12 months.
For those reasons I intend to make orders in accordance with those made on 10 October 2013 but with the inclusion of school holiday time and with orders restraining the parties initiating discussion with X about his parenting arrangements.
I intend to make the injunctive order in those terms rather than a blanket order restraining the parties from discussing those issues with X out of respect for X’s age and the reality that from time to time he may initiate such discussions with his parents. I trust in responding to any such discussions initiated by him, his parents reacquaint themselves with these reasons.
I intend to discharge paragraph 6 of the order of 10 October 2013 which required the father to be personally present to supervise X if one or both of his parents were present.
I find that the order providing for X to live with his mother if his father is required to travel overseas or interstate for employment during periods that X is due to be in his care is in his best interests and should remain in place.
I find that handovers for time should occur at J Centre on G Street at Suburb N. This is in circumstances where the mother does not wish the father to attend at her home and such attendance is not necessary. It is to be hoped that as X gets older handovers can become less fraught for the mother.
In circumstances where the parties are agreed as to X’s attendance at B School at Suburb N for high school I find it is appropriate to include such an order.
I find the order requiring the parties to consult about extracurricular activities including religious activities should remain in place.
I see no purpose in an order as sought by the mother for the father to attend with a therapist with respect to anger management for a period of not less than 12 months from the date of these orders. The father has had ample opportunity to do that. He originally paid lip-service to that course of action. It is to be hoped that the experience of trial has resulted in the father reconsidering his approach to those issues and I am satisfied that since 29 June 2018 he has been more focused in that regard.
The parties were not in any significant dispute about special occasion time and I will continue the existing orders in that regard.
Both parties are agreed that injunctions with respect to non-denigration as contained in the order of 10 October 2013 should remain in place, a course with which I agree.
I find that the order sought by the father with respect to interstate travel is appropriate. There is no reason why X should not enjoy interstate holidays with each of his parents from time to time if he is lucky enough to have the opportunity. The length of those holidays will be somewhat limited until the commencement of the 2023 school year when orders for school holiday time extend to equal time. That would not be an impediment to an interstate holiday.
I do not consider that it is appropriate for the Court to deal with the issue of overseas travel and passports at this time. It is to be hoped that by the time COVID-19 travel restrictions have relaxed and X is older and sharing longer school holiday times with each of his parents, that any plans either of them have in that regard can be negotiated and a passport obtained.
I am aware that leaving such an issue out of this order may create the possibility for proceedings at a later date but I am very hopeful that is not the case.
I also intend to make the order I referred to in paragraph 146 of these reasons. This will allow X to have the orders of the Court explained to him in a neutral environment in circumstances where there is no Independent Children’s Lawyer.
I find that such exercise should be paid for by the parents in equal shares and occur with 14 days of the date of the order. If Ms C is to be absent for that period such that she cannot accommodate the order I expect my chambers to be advised forthwith and the matter will be called back on for further directions as to that issue.
For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and five (305) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead.
Associate:
Dated: 3 March 2021

[2021] FamCA 92

3 March 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies

File number(s):	ADC 3153 of 2012
Judgment of:	MEAD J
Date of judgment:	3 March 2021
Catchwords:	FAMILY LAW – CHILDREN – Parenting issues – previous final consent orders 2013 – impact on child of ongoing parental tension – cessation of time with father for short time in 2018 – time resumed within months but for less time than 2013 order – time now resumed in accordance with 2013 order but with inclusion of provision for child to spend additional school holiday time with father.
Legislation:	Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61B, 61DA, 61DA(1), 61DA(2), 61DA(4), 65DAA, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC, 65DAE
Number of paragraphs:	305
Date of hearing:	18 November 2020 and 8, 9, 10 and 11 February 2021
Place:	Adelaide
Counsel for the Applicant:	Ms Dickson QC
Counsel for the Respondent:	Mr Bowler
Solicitor for the Applicant:	Georgina Parker Lawyers
Solicitor for the Respondent:	SA Family Law

ADC 3153 of 2012
BETWEEN:	MS KENNETH Applicant
AND:	MR KENNETH Respondent

ORDER MADE BY:	MEAD J
DATE OF ORDER:	3 MARCH 2021