Korman and Henderson - [2011] FMCAfam 1286

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KORMAN & HENDERSON

[2011] FMCAfam 1286

FAMILY LAW – Children – parenting orders – parental responsibility – equal shared parental responsibility – best interests of the child – equal time – substantial and significant time – choice of school – what school should the child attend?

Family Law Act 1975, ss.60B, 60CA, 60CB, 60CC, 61DA, 65AA, 65D, 65DAA

Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Mallahan & Mallahan [2010] FamCA 631
MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424

Applicant:

MR KORMAN

Respondent:

MS HENDERSON

File Number:

SYC 2489 of 2010

Judgment of:

Scarlett FM

Hearing date:

22 August 2011

Date of Last Submission:

15 November 2011

Delivered at:

Sydney

Delivered on:

2 December 2011

REPRESENTATION

Counsel for the Applicant:

Ms Boyle

Solicitors for the Applicant:

Karras Partners

Counsel for the Respondent:

Mr Blackah

Solicitors for the Respondent:

No solicitor on the record

ORDERS

All previous parenting Orders are discharged.
The Applicant father and the Respondent mother are to have equal shared parental responsibility for making all decisions in relation to the major long-term decisions concerning the child of the marriage [X] born [in] 2006, those major long-term issues to include:
(a)the child’s current and future education;
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that would make it significantly more difficult for him to spend time with the other parent.
Each party is to have parental responsibility for making decisions about day to day issues concerning the child [X] at all times when he is in that party’s care as provided by these Orders.
The child [X] is to live with the mother at all times other than as provided by these Orders.
Until 1 August 2012 the child [X] is to spend time with the father:
(a)In Week One from after school or childcare on Monday until the commencement of school or childcare on Tuesday and from after school or childcare on Friday until the commencement of school or childcare on Monday;
(b)In Week Two from after school or childcare on Thursday until the commencement of school or childcare on Friday;
(c)From 9:00 am on 2 January 2012 until 6:00 pm on 9 January 2012;
(d)For one half of each of the Autumn and Winter school holiday periods in 2012 on a week about basis;
(e)From 2:00 pm on Christmas Eve 2011 until 2:00 pm on Christmas Day 2011; and
(f)At such other times as the parties shall agree in writing.
From and after 2 August 2012 the child [X] is to spend time with the father:
(a)In Week One during each school term from after school on Monday until the commencement of school on Tuesday and from after school on Friday until the commencement of school on Monday;
(b)In Week Two during each school term from after school on Wednesday until the commencement of school on Friday;
(c)From 9:00 am on 2 January until Australia Day in each year;
(d)For one half of each of the Autumn, Winter and Spring holiday periods on a week about basis;
(e)From 9:00 am to 6:00 pm on Father’s Day in each year;
(f)For a period of not less than four (4) hours on the child’s birthday if that day should fall on a weekend and for a period of not less than two (2) hours if that day should fall on a school day when the child would not otherwise be spending time with the father in accordance with these Orders;
(g)From 2:00 pm on Christmas Day until 2:00 pm on Boxing Day in all even numbered years and from 2:00 pm on Christmas Eve until 2:00 pm on Christmas Day in all odd numbered years; and
(h)At such other times as the parties shall agree in writing.
Notwithstanding the provisions of Orders (5) and (6) above, the child [X] is to live with the mother:
(a)From 9:00 am to 6:00 pm on Mother’s Day in each year; and
(b)On the mother’s birthday in each year; and
(c)For a period of not less than four (4) hours on the child’s birthday if that day should fall on a weekend and for a period of not less than two (2) hours if that day should fall on a school day when the child would not otherwise be living with the mother in accordance with these Orders.
For the purpose of giving effect to these Orders the father is to collect the child [X] from school or childcare or the mother’s residence as the case may be at the commencement of the child’s time with his father and the mother is to collect the child from school or childcare or the father’s residence as the case may be at the conclusion of the child’s time with the father.
Each parent is at liberty to communicate with the child [X] by means of the child’s mobile telephone at all reasonable times.
Each parent is to provide to the other parent a telephone number and an address during periods when the child lives or spends time with the other parent during holiday time no later than seven (7) days prior to the commencement of the holiday time with each parent.
Each parent is to advise the other of any change of address or telephone number within twenty-four (24) hours of that change taking place.
The mother is to advise the father of the names and addresses of the child’s treating doctors and dentist.
Each parent is to advise the other as soon as is reasonably practicable if the child becomes seriously ill or is admitted to any hospital.
Neither party is to denigrate or criticise the other party or members of the other party’s family in the presence or hearing of the child [X].
Neither party is to take the child [X] out of the Commonwealth of Australia without the written consent of the other party and each party must provide to the other detailed copies of the proposed itinerary, accommodation and contact telephone numbers and email addresses of the places where the child is to stay no later than thirty (30) days prior to the planned date of departure from Australia.
Each party must notify the other party in writing of any proposal to take the child [X] out of the State of New South Wales no later than twenty-one (21) days prior to the planned date of departure from New South Wales.
Neither party is to consume an excessive amount of alcohol at any time when the child [X] is in his or her care.
The mother is permitted to enrol the child [X] at the [F] School at [M] in the State of New South Wales to commence school at the beginning of the first school term in 2012.
The mother is to provide to the school full details of the address and telephone numbers of each parent.
Both parents are entitled to receive from the school attended by the child copies of all school reports, newsletters, bulletins, information about school photographs and all other documents usually forwarded to parents of children attending that school.
Both parents are entitled to attend at all functions usually attended by parents of children attending that school including speech days, prize-giving ceremonies, sporting events, musical and dramatic presentations and school interviews.

IT IS NOTED that publication of this judgment under the pseudonym Korman & Henderson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 2489 of 2010

MR KORMAN

Applicant

And

MS HENDERSON

Respondent

REASONS FOR JUDGMENT

Application

This Application concerns two discrete issues about the parties’ child, [X], who is five years old.
[X] is due to commence school at the beginning of the first school term in 2012. The father wishes to have him enrolled at [L] School, which is approximately equidistant between the homes of the two parents. The mother, however, wishes to have [X] enrolled at [F] School in [M], which is close to her residence.
The other issue concerns the amount of time that [X] spends with each party. The father wants an order that the child’s time with him should be increased from five nights per fortnight to six nights per fortnight, together with half of each school holiday period. The mother opposes an increase in the number of days each fortnight but seeks orders that the parties share the school holiday time equally on a week about basis.

Background

The parties commenced living together in February 2003 and were married [in] 2005.
There is one child of the marriage, [X], who was born [in] 2006.
The parties separated under the one roof on either 4 January (father’s account) or 5 January (mother’s account) 2009. The mother move d out of the former matrimonial home at [G] on 3 April 2009. [X] has lived with his mother since his parents separated.
From April 2009 until late in 2010 the child was spending four nights each fortnight with his father.
The mother commenced property proceedings in this Court by filing an Application on 18 May 2010. The father filed a Response on 28 June 2010, seeking parenting orders.
On 22 November 2010 the parties entered into Interim Consent Orders. Those consent orders provided that:
a)The parties should have equal shared parental responsibility for [X];
b)[X] would live with his mother;
c)[X] would spend time with his father on alternate weeks:
i)On Wednesday nights in Week One;
ii)On Wednesday nights in Week Two;
iii)From Friday evening until Monday morning in Week Two;
iv)On Father’s Day;
v)On the father’s birthday;
vi)At Easter 2011 from 6.00 pm on Thursday until 6.00 pm on Easter Sunday;
vii)For Christmas 2010, from 2.00 pm on Christmas Day until the evening of 2 January 2011; and
viii)Other times as the parties agreed.
d)[X] would spend from 9.00 am to 6.00 pm on Mother’s Day with his mother;
e)[X] would spend not less than four hours with the mother on her birthday;
f)The parties would abstain from excessive consumption of alcohol whilst [X] was in their care.
On 15 February 2011 the parties entered into final Consent Orders resolving the property issues between them.
The parties were divorced on 11 July 2011.
The father’s Application for parenting orders was heard on 22 August 2011. Judgment was reserved.
On 15 November 2011 the mother sought to reopen her case and lead further evidence. This application was opposed and leave to reopen was refused.

Issues

In his Case Outline, filed in Court on the morning of the hearing, the father set out the following issues:
·    When the child’s time with the father is to be increased from five nights per fortnight to six nights per fortnight in addition to one half of each school holiday period.
·    The school the child is to attend from February 2012.
·    The impact each party’s proposal in relation to living arrangements and the school the child is to attend may have on the child’s right to spend time with the other parent.
·      The time the child is to spend with each parent during the Christmas school holiday period.
The mother’s counsel, Mr Blackah, referred to the following matters in his client’s Case Outline and Summary of Argument:
·    It is the mother’s case that the child may be at risk in the father’s care, by reason of his excessive consumption of alcohol.
·    The child has a close relationship with each of his parents and other family members.
·    It is the mother’s case that by reason of conflict between the parties, which conflict is primarily caused by the father, there is doubt about the extent to which the father supports the child’s relationship with the mother.
·    The mother asserts that she has greater capacity to care for the child before and after day care and school by virtue of her shorter working hours.

Evidence

The father relied on his affidavits of:
a)17 June 2010;
b)7 September 2010;
c)5 November 2010; and
d)21 August 2011.
He also sought to rely on an affidavit of Mr S, a psychologist, sworn on 25 October 2010, to which a psychological evaluation was annexed. Mr S was not required for cross-examination.
The father gave oral evidence and was cross-examined by Mr Blackah of counsel, who appeared for the mother. It is his evidence that he has been actively involved in the child’s care before and since the parties separated. He has, since he filed his Application in a Case on 19 November 2010, sought interim (and now, presumably, final) orders that [X] should live with him for six nights a fortnight and half of the school holidays.
The father deposes that, despite his best efforts to resolve the outstanding parenting issues with the mother, the parties have been unable to reach agreement. The mother “has also refused to participate in mediation…”[1]
[1] Affidavit of Mr Korman 21.8.2011 at paragraph [20]
The father was critical of the mother’s repeated changes of residence since she moved out of the former matrimonial home in [G], claiming that this “has had a detrimental effect on [X]. [X] will have moved residences with [Ms Henderson][2] on at least three occasions in one year and I am concerned that this has been unsettling and disruptive for [X]”.[3]
[2] The mother
[3] Affidavit of Mr Korman 21.8.2011 at [29]
The father stated that he had only become aware a few days previously that the mother proposed to live in rental accommodation in [M].
The father still lives in [G]. It is his view that [G] is the area with which [X] is most familiar.
As for the child’s school, the father claims that he had been trying to negotiate with the mother about the selection of a school for [X] since February 2011. The mother had at one stage agreed to select a school located mid-way between the residences of the parties but had “subsequently reneged on this agreement”.[4]
[4] Ibid at [32]
The father has made inquiries at several schools located approximately halfway between [G] and [M] about “out of area” enrolment for [X]. His preferred school is [L] School. He considers that [L] School would be conducive to [X]’s best interests because:
a)It offers a diverse curriculum, emphasising computer literacy, music and science studies;
b)It is conveniently located, being 10 minutes’ drive from [G] or the Sydney CBD and less than 15 minutes from [M]; and
c)There are vacancies for before and after school care at the school.[5]
[5] Affidavit of Mr Korman 21.8.2011 at [52]-[56]
The father sees the mother’s proposal for the child to attend school in [M] as leading to the child being subjected to unnecessarily long travel to and from the father’s home in [G]. He also believes that the child may not necessarily obtain a place in the before and after school care facility in [M].
The father wishes to have [X] in his care for one additional overnight each fortnight. He consulted Mr S, the psychologist, for the purpose of providing to the Court a medico-legal report in relation to his psychological functioning and current alcohol use.
It is the father’s evidence that the mother initially agreed to an extension of his time with the child to three nights a week with effect from 30 November 2011 but subsequently went back on that agreement. He annexed to his affidavit a copy of an email to his solicitor from the mother’s then counsel, Mr Gilbert sent on 19 November 2010.
In that email, Mr Gilbert stated (relevantly):
I am instructed to respond as follows:
1. On and from 3 January 2011
3 nights week A
2 nights week B or vice versa
2. On and from 30 November 2011 (this gives [X] sufficient time to adjust to 3 nights each week prior to commencing school in 2012.
3 nights each week[6]
[6] Ibid Annexure “H”
The affidavit of Mr S annexes a psychological evaluation of the father, prepared at his request. The evaluation concerns the following issues:
1. An assessment of Mr Korman’s alcohol use and the impact on his capacity to appropriately parent and meet the needs of his son, [X].
2. Recommendations regarding the increase in overnight contact with [X].[7]
[7] Affidavit of Mr S 25.10.2010 Annexure “B”
Mr S reported that the father had given this drug and alcohol history:
Mr Korman reported regular social drinking and no history of drug use. Mr Korman reported sharing 4 bottles of wine per week (approximately 28 standard drinks) with his wife during his marriage. Since his divorce, Mr Korman admitted two bottles of wine per week and approximately 6 full strength beers during the weekend…
…Mr Korman reported drinking 5 or 6 times per week, usually no more than 2 glasses of wine. He denied drinking spirits or mixed drinks. After some calculations it was estimated that Mr Korman consumes approximately 22 standard drinks per week on average.[8]
[8] Ibid
Mr Korman gave this assessment of the father’s alcohol use in the context of his parenting ability:
The assessment of Mr Korman’s alcohol use revealed above the recommended level of consumption, but no alcohol dependence and no life problems associated with drinking. Mr Korman is in no need of alcohol formal alcohol counselling.
In my opinion, Mr Korman’s alcohol use has not impacted negatively on his capacity to adequately care for and parent his son, [X]. Psychologically he is fit to care for his child and meet his needs.[9]
[9] Ibid
In cross-examination, the father said that he worked from 8:30 am to 5:30 pm each working day. He conceded that the mother works shorter hours.
The father reiterated his proposal for [X] to attend [L] School. He said that [L] was close to [M] and that travel time is the reason why he prefers [L] School over the mother’s selection of [F] at [M].
The mother relied on three affidavits which she had affirmed on:
a)14 July 2010;
b)21 November 2010; and
c)18 August 2011.
It is the mother’s evidence that she offered to vary the interim parenting orders made by consent on 22 November 2010 to provide that [X] would not be away from his father for more than three days at any one time. She deposed that the father accepted that offer, but when she wrote to his solicitors to bring about this variation she did not receive a reply.[10]
[10] Affidavit of Ms Henderson 18.8.2011 at paragraphs [12]-[14]
The mother deposed that since about the middle of January 2011 the following arrangements for [X] to spend time with his father have been in place on an informal basis:
Week 1: From 6.00 pm Monday to 9.00 am Tuesday and from 6.00 pm Friday to 9.00 am Monday.
Week 2: From 6.00 pm Thursday to 9.00 am Friday.[11]
[11] Ibid at [15]
The mother has a new partner, a man named Mr R.
The mother is currently seeking rental accommodation in South [M]. She was looking at two houses, both of which are in the catchment area for [F] School. It was only on the Saturday before the hearing that the mother found out that she had been successful in obtaining rental accommodation at one of the houses in South [M].
The mother wishes for [X] to attend [F] School. She states that she has inspected the school and was impressed by what she saw. The school teaches a love of learning and there are opportunities at the school for students who are musically gifted. She would like the child to have the opportunity to develop an interest in music.[12]
[12] Ibid at [31]
The mother does not now favour an arrangement where the child attends a school that is half way between the homes of each parent. She also proposes to take leave from her current employment in February 2012, during which time she will seek other employment. She wishes to work in the suburbs and not in the Sydney central business district.
It is also the mother’s evidence that she and the father do not have a good relationship. She states:
We do not engage in conversation with each other and our communication is always in writing.[13]
[13] Ibid at [39]

The mother claims that the father is not able to take the child’s best interests into account. In cross-examination she said that she doubted that the father loved [X] because he threatened to reduce the amount of child support that he is paying.
The mother also said that she saw benefits to the child in having changeovers between parents at school because of the high conflict between herself and the father – “The litigation hasn’t helped”.
The mother spoke highly of [F] School, saying that she had heard good things from other parents about the school, particularly about such things as art, music, the school band, dance classes, and language classes.
In answer to questions from the Bench, the mother said that she wanted to improve her relationship with the father and she wanted to support [X]’s relationship with him.

Submissions

Counsel for the father, Ms Boyle, submitted that the presumption applied that equal shared parental responsibility was in [X]’s best interests as the parents had agreed on that point. What then had to be considered was whether there should be equal shared time with each parent or whether the Court should make an order for substantial and significant time. The mother wanted the child to spend five nights a fortnight with his father, but the father sought six nights a fortnight.
It was submitted that the mother had previously supported an arrangement where the child would spend six nights a fortnight with the father but had later resiled from that agreement. Whilst she claimed that the child would be at risk because of the father’s alcohol consumption, the child had gone from two overnights with his father to three without any ill effect. It is not, she submitted, a matter of whether the child should spend an additional night with his father, but when.
There was an issue about before and after school care for [X] if he were to attend [F], but the mother had not made inquiries about the availability of vacancies even though she said that it had always been her dream that the child would attend [F].
By comparison, there is a certainty about the arrangements at [L] School. The father has visited the school twice and is aware that music is provided and there is an excellent science program. Ms Boyle agreed that changeovers at school would provide a “buffer” between the two parents.
The father would like to speak to the child by telephone on his birthday and spend time with him on the nearest Saturday. Over the Christmas school holiday period the father would like to take [X] to Perth to spend time with his extended family. Otherwise the father suggests that the child should spend a week on and a week off with each parent during the school holidays.
Mr Blackah of counsel, who appeared for the mother, submitted that [X] already spends substantial and significant time with his father. Preserving the status quo would still give substantial and significant time. Previously, the mother had agreed to the child spending six nights a fortnight with the father when she hoped that the relationship between her and the father would improve, but he continues to send her hostile and threatening emails.
It was also submitted that it makes sense for the child to go to a school situated close to one of his parents. The father, on the other hand, is proposing an arrangement that would save him fifteen minutes driving time.
Further, Mr Blackah submitted that the Christmas arrangements were imposed on the mother by the father. It is not absolutely necessary that the child should fly to Perth with his father every Christmas Day.
Again, it was submitted that the affidavit from Mr S shows that the father is drinking too much and ought to do something about it.
The child’s relationships with his mother and her partner are being influenced by the father. The mother has doubts about the father’s ability to encourage the child’s relationship with his mother. The mother and her partner were prepared to do “whatever it takes” to make the start of school a happy experience for [X] and will also do whatever it takes to get him to and from school.

The Relevant Law

In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA). The Court determines what is in a child’s best interests by considering the matters set out in subsection 60CC(2) and 60CC(3) of the Act.
The Court must also consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60CC(4)) and, where the child’s parents have separated, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (s.60CC(4A)).
When making a parenting order, the Court must apply a presumption that it is in the child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA(1)). However, this presumption does not apply in cases of abuse of the child or another child who is a member of the family, or cases involving family violence (s.61DA (2)). The presumption may be rebutted by evidence that it equal shared parental responsibility would not be in the child’s best interests (s.61DA(4)).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for that child, the Court must consider whether spending equal time with each parent would be in the child’s best interests and would be reasonably practicable (s.65DAA(1)).
If the Court does not make an order for the child to spend equal time with each of his or her parents, the Court must consider whether it would be in the child’s best interests and whether it would be reasonably practicable for the child to spend substantial and significant time with each parent (s.65DAA(2)).
I have considered all of the above matters.
In the recent decision of Mallahan & Mallahan[14], Murphy J considered at [14] to [39] the principles to be followed in parenting cases in the light of the decision of the High Court of Australia in MRR v GR[15]. In particular, his Honour stated:
14. Parenting orders, of whatever type, are driven by a determination of the best interests if the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are “additional” (s 60CC)…[16]
[14] [2010] FamCA 631
[15] [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
[16] [2010] FamCA 631 at [14]
The steps that a Court must take when contemplating making parenting orders are summarised at paragraph [37] of the judgment:
The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286[17]), would, then, appear to me to require a court contemplating the making of parenting orders to:
[17] [2006] FamCA 1346; (2006) 36 Fam LR 422
·    First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
·    Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
·    Further or alternatively, then make findings, by reference to s 60CC(3) about such matters relating to best interests relevant to the issue of whether parental responsibility should be shared equally;
·    Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
·    If the presumption is rebutted and such an order should not otherwise be made, make findings bout best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
·    If the presumption is not inapplicable or not rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
-    Make findings as to whether the subject children’s best interests are best met by an order for equal time; and
-    Make findings as to the matters prescribed in s 65DAA(5), and, as a result;
-    Make findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and
-    If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see 65DAA(3)) should be made;
·    If neither an equal time order; nor a substantial and significant time order; should be made, proceed to determine the orders which the earlier findings point to being in the children’s best interests (s 65D; s 60CA; s 65AA).[18]
[18] [2010] FamCA 631 at [37]
It is also important to note that his Honour stated that the Court has an obligation to consider the exercise of the power to make each order in the prescribed manner when the precondition for an order for equal shared parental responsibility has been met, even if neither party seeks an order for either equal time or substantial and significant time.[19]
[19] [2010] FamCA 6312 at [38]-[39]
The question of a child’s schooling is one often raised in courts exercising jurisdiction under the Family Law Act. The law relating to that subject was considered by the Full Court of the Family Court in Re G: Children’s Schooling[20]. Their Honours held that:
a)The proposal that the custodial (or residence) parent has the right to choose a child’s school did not represent the law as it then stood;
b)There is no legal presumption in favour of the status quo or choices of the residence parent but the reality of children residing predominantly with one parent may be relevant;
c)The objects and principles in Family Law Act 1975 (Cth) s.60B are to be taken into account in considering the relevant matters;
d)Subsection 60B(2)(d) as it then was did not restrict the court’s jurisdiction and did not create a presumption which limits the inquiry into the best interests of the child. Prior agreements about parenting matters should be taken into account as a relevant consideration.
[20] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
Again, I have considered those matters.

Conclusions

The first matter to be considered is to apply the presumption under subsection 61DA(1) that it is in [X]’s best interests for his parents to have equal shared parental responsibility for him. I take into account that both parents seek that such an order should be made. Nevertheless, the Court should still consider the matter independently (see Mallahan at [39]).
There is no evidence of family violence or of abuse of the child (or another child) that would give the Court reasonable grounds to believe that the presumption does not apply (s.61DA(2)).
Turning to the matters under s.60CC that the Court must consider in order to determine what is in [X]’s best interests, I am satisfied that it is in his best interests to have a meaningful relationship with both parents.
Whilst the mother has expressed concern about the father’s drinking, the evidence does not lead to the conclusion that the child will be subjected or exposed to abuse, neglect or family violence when he is in his father’s care. It would, however, be of benefit to the child if his father were not to consume alcohol whilst [X] is in his care. This does not appear to be an unduly onerous condition.
The child is too young for his views to be obtained or taken into consideration.
The evidence suggests that [X] has a good relationship with each of his parents. The father is keen to support the child’s relationship with his extended family, who live in Perth, and there is no evidence to indicate that this would not be beneficial to the child.
The mother now has a new partner, named Mr R. He is not on affidavit and there is little evidence about him.
The mother submits that she is willing and able to facilitate a close and continuing relationship between [X] and his father, but she doubts that the father has a similar willingness or ability. She complains that the father has used language such as “fucking bitch” about her in the child’s presence.[21] The father is critical of the mother.
[21] Affidavit of Ms Henderson 18.8.2011 Annexure “I”
I am not of the view that there would be any significant effect on the child if, at some stage in the near future, he were to spend an additional day each fortnight with his father. There will be a change in his life when he commences school next year, and the mother has some concerns about making other changes in the child’s life until he has settled into school, but spending another day with his father once a fortnight does not appear to be a major change.
There appears to be little in the way of practical difficulty or expense in the child spending time with or communicating with either of his parents. The father lives at [G] and the mother lives at [M]. The two suburbs are not far from each other. The difficulty arises from the hostile relationship between the child’s parents.
[X] is a little boy who was born [in] 2006. He is five years old and is due to commence school at the beginning of the first school term in 2012.
There is a regrettable degree of hostility between the parties. The mother has annexed to her affidavit of 18 August 2011 copies of email correspondence between the father and herself. The level of communication is regrettable, for example:
Even though we are now divorced you try to disrupt my life at every opportunity you can like turning up 30 min late knowing that drop off was critical. I am not sure what kind of idiotic pleasure that gave you but I am not prepared to extend any more favours to you including the current ones.[22]
[22] Affidavit of Ms Henderson 18.8.2011 Annexure “I”
Taking all these matters into account, I am still of the view that the presumption in s.61DA (1), that it is in the best interests of the child for his parents to have equal shared parental responsibility for him, applies.
Having established that matter, the Court must consider whether the child spending time with each of his parents would be in his best interests and whether it would be reasonably practicable for him to do so (s.65DAA(1))..
Neither party seeks that order, although that does not relieve the Court from the obligation of considering it (Mallahan at [38]-[39]).
Whilst there are no obvious practical difficulties, I am not persuaded that it would be in the child’s best interests to make such an order. The degree of hostility between the parents and their poor communication does not augur well for an “equal time” order. It is well accepted that equal time arrangements usually only work when the child’s parents display an ability to cooperate in a civil manner, which is not the case here.
The father seeks an order for substantial and significant time (see subsection 65DAA(2)) with [X], which would increase his time with the child from five days a fortnight to six days a fortnight, plus half of the school holidays. The child currently spends five days a fortnight with the father, which the mother submits already meets the definition of substantial and significant time (as set out in s.65DAA(3)).
What the Court must now consider is whether it is in [X]’s best interests to spend substantial and significant time with each parent and whether it is reasonably practicable for him to do so (s.65DAA(2)). As counsel for the mother has submitted, [X] is already spending substantial and significant time with each parent and there is no evidence that would lead the Court to the conclusion that it is no longer in his best interests to do so. Neither party seeks to argue that proposition.
I am satisfied that it is in the child’s best interests for the child to spend substantial and significant time with each of his parents.
In considering whether it is reasonably practicable for the child to spend substantial and significant time with each parent, particularly an extra over night time with his father, the Court must consider the matters set out in s.65DAA(5) of the Act.
The child’s parents live in [G] and [M], which are suburbs of Sydney a relatively short distance apart.
The parents have poor communication with each other and limited ability to resolve difficulties that might arise.
The mother is planning to take some leave from her employment early in 2012 and seek other employment in the suburbs rather than in the Sydney CBD. This should not have a negative impact on the child spending substantial and significant time with each parent.
The mother has expressed concern that commencing school will have a significant impact on [X] and she would prefer not to change his arrangements for spending time with his father at the same time. I am not persuaded that this should necessarily require that no change from the present arrangement should be made between now and the end of the 2012 school year. True it is that a child needs to adjust to starting school, but if the child has a good relationship with each parent, it would hardly be necessary for there to be no other change for an entire year.
I am of the view that this child, who will be six years old in early August 2012, should be able to adjust to spending an extra day each fortnight with his father by the time he is six years old. He should also be old enough to spend time with his father during the school holidays.
Turning to the choice of schools for [X], both [F] and [L] would seem to offer similar advantages to the child by way of curriculum. It is not the case that the mother would have the right to choose what school [X] should attend because he will be living with her. However, the father’s choice of [L] School appears to be a compromise, in that it is approximately equidistant between the residences of each parent. I agree with the submission of counsel for the mother that it makes sense for [X] to attend school near to the residence of one parent, and [F] would meet that requirement. The evidence before the Court is that the child will be living in the catchment area for [F]. I am satisfied that it is in his best interests for him to attend [F] school and I will order accordingly.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 2 December 2011