LAMONT & LAMONT
[2020] FCCA 405
•26 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAMONT & LAMONT | [2020] FCCA 405 |
| Catchwords: FAMILY LAW – Parenting – risk issues – allegations of family violence – allegations of excessive alcohol consumption and racist name calling – credit findings against the mother – where mother unreasonably refused to increase the child’s time with the father – where the mother amended her response on the last morning of the trial increasing the father’s time – parents’ communication – where the parents do have the ability to communicate in a civil and businesslike manner for the benefit of the child – substantial and significant time and equal time considered – “reasonable practicality” – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 65DAA |
| Applicant: | MS LAMONT |
| Respondent: | MR LAMONT |
| File Number: | BRC 6495 of 2018 |
| Judgment of: | Judge Howard |
| Hearing dates: | 5 & 18 September 2019 |
| Date of Last Submission: | 23 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 26 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Pendergast |
| Solicitors for the Applicant: | Nita Stratton-Funk & Associates |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Jones Leach Lawyers |
ORDERS
That each party shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to each other party by 4:00pm on 27 February 2020.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 1 March 2020.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on 4 March 2020.
IT IS NOTED that publication of this judgment under the pseudonym Lamont & Lamont is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 6495 of 2018
| MS LAMONT |
Applicant
And
| MR LAMONT |
Respondent
REASONS FOR JUDGMENT
Background
The applicant father was born in Sydney, Australia in 1976.
The respondent mother was born in China in 1983.
The parties met online and, apparently, they also initially met in person in late 2004. They met again or at least reconnected in 2006 and they commenced cohabitation in Sydney in 2006. The parties moved from Sydney to Brisbane in 2010. They became engaged in 2012 and they married 2013.
The parties’ child, X (known as X) was born in 2016. Neither party has any other children.
The parties separated on a final basis on 7 October 2017. At that time the mother left the family home (situated A Street, Suburb B, Brisbane) and went to live with the maternal grandparents nearby at C Street, Suburb B. The maternal grandparents had emigrated from China to Brisbane in 2016. The maternal grandparents lived with the parties for the first few months of X's life.
The parties have been unable to agree on parenting orders in relation to X.
Following separation X remained living primarily with the mother and spent time with the father as follows:
a)From 4:00pm to 7:00pm on each Thursday and Friday; and
b)One day on the weekend, in week one on Saturday and in week two on Sunday, from 8:00am to 4:00pm.
The father wanted more time with X. The mother would not agree. The father commenced Court proceedings by filing an application in the Federal Circuit Court of Australia on 18 July 2018. I accept the father’s evidence that the mother would not permit X to spend overnight time with the father – prior to being ordered to do so by the Court on 26 July 2018. By that order X commenced spending time with the father as follows:-
a)In week one, from 4:00pm on Thursday to 7:00pm on Friday; and
b)In week two, from 4:00pm on Friday to 4:00pm on Saturday.
Time has continued in accordance with those orders made on 26 July 2018. There is a notation contained in the order dated 26 July 2018 to the effect that, once of a family report was obtained, the parents would, essentially, review the amount of X's time with the father. The clear intention being that X's time with the father would be increased.
Ms D interviewed the family on 29 August 2018. Ms D's affidavit annexing her family report was filed on 6 November 2018. Ms D recommended that X live primarily with the mother and spend five nights per fortnight with the father – four nights in week one (from Thursday afternoon until Monday morning) and one night in week two (from Thursday afternoon until Friday afternoon). Ms D also recommended that once X commences school that his school holiday time be equally shared between the parents.
The father sought additional time following the release of the family report. The mother did not agree. A final hearing commenced in this matter on 5 September 2019. An additional day was required and this occurred on 18 September 2019. Written submissions were filed by the parties and the date of the last submission was 23 October 2019.
The father seeks orders that would gradually progress the child’s time with each of the parents to equal time on a week about basis.
At the commencement of the final hearing the mother sought an order whereby the child would continue to live primarily with her and spend every second weekend with the father. It was not until the morning of the last day of the hearing (18 September 2019) that the mother sought leave to amend her response. By the amended response the mother seeks orders whereby the child would live primarily with her and spend five nights per fortnight with the father in accordance with the recommendation of the family report from late 2018.
Section 60CA
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) states:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC – How a court determines what is in a child’s best interests
In determining what is in the child’s best interests, the Court is required to have regard to the considerations stated in section 60CC of the Act.
The primary considerations are set out in section 60CC(2) and (2A). Those subsections state:-
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
It is apparent from the observations made by the family report writer and by the evidence generally, that both parents have a close and loving relationship with X. X is not at any risk of physical or psychological harm from either of his parents. Nor is he likely to be exposed to abuse, neglect or family violence. The mother had alleged that X was at risk of neglect or harm in the care of the father as a result of the father’s excessive alcohol consumption. I have come to the conclusion that X is not at risk in the care of the father. I will refer to these matters later in these reasons.
s.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;
X is too young to express his views.
s.60CC(3)(b)
(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);
As noted, the child has a close and loving relationship with both the mother and the father. In addition, the Court accepts that X also has a close and loving relationship with the maternal grandparents. Further, there is nothing to suggest that X has anything other than a loving relationship with any extended members of the paternal or the maternal family with whom he comes into contact.
s.60CC(3)(c)
(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;
The child has lived primarily with the mother since separation. The father has sought, repeatedly, to increase his time with the child. This was especially so after the release of the family report in late 2018. The mother refused to agree to any increase in the father's time. As noted, towards the end of the hearing the mother amended her Response to seek an order that the child live with her and spend five nights per fortnight with the father. Leave to amend the mother’s Response was granted by the Court on 18 September 2019. The amended proposed orders sought by the mother became exhibit 4. Prior to that time the mother had sought that the child live primarily with her and spend alternate weekends with the father.
s.60CC(3)(ca)
(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;
Both parents have fulfilled their obligations to maintain the child.
s.60CC(3)(d)
(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;
The parents live in the same general vicinity. The child’s time with the father will increase in accordance with the findings contained in these reasons for judgment. There is not likely to be any effect on the child from any separation contemplated by section 60CC(3)(d). The child will continue to spend significant time with the mother and the maternal family and the child will also spend significant time with the father and his family.
s.60CC(3)(e) – Practical difficulties and expenses
There are no particular practical difficulties or expenses in this case because both parents live relatively close to each other.
s.60CC(3)(f)
I have come to the conclusion that both parents have the capacity to provide for X’s needs – including his emotional and intellectual needs.
s.60CC(3)(g)
(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;
There is nothing particularly relevant in relation to the child's background. The mother and her parents were born in China. I am sure that the maternal family will make certain that X understands and appreciates his Chinese heritage. And the father will ensure that X appreciates his Australian heritage.
I am also confident that the father will encourage X in relation to the child’s Chinese heritage.
Both parents are committed to raising X as a young Australian who enjoys both Chinese heritage and Australian Heritage.
Section 60CC(3)(h) is not relevant.
s.60CC(3)(i)
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents have a good attitude towards the responsibilities of parenthood. They both also have a good attitude towards the child.
ss.60CC(3)(j) and (k) – Family Violence
(j) any family violence involving the child or a member of the child’s family;
(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;
The mother has alleged that the father has engaged in family violence towards her. The parties separated on a final basis on 7 October 2017. The mother left the family home and went with X to live at the home of the maternal grandparents. A short time later, on 16 October 2017 the mother returned with X to the family home. Her parents had insisted that she return to the family home. I infer from the available evidence that there had been a disagreement between the mother and the maternal grandparents. I note the father’s evidence from paragraph 35 of his affidavit filed 14 May 2019. I accept the father’s version of the events that occurred on 16 October 2017. In relation to that particular date the father stated:-
“35. Ms Lamont and X visited me on 16 October 2017 as she was very upset about our separation and angry with how things were between her and her parents.
36. I then agreed that she could stay the night at home and I put X to bed after bathing him.
37. Ms Lamont then went into the main bedroom to sleep.
38. At about 8.30pm, being about 20 minutes after she had gone to bed, she came downstairs where I was, yelling and screaming:
(a) I am going to kill myself and X;
(b) I fucken hate you; and
(c) You will never see X again.
39. Ms Lamont started throwing my clothes outside the home and when I approached the door, she grabbed me on my right bicep and scratched my arm. My arm was also bruised.
40. I was stunned by Ms Lamont's conduct and before I could say or do much, she went and picked X out of his bed and went to her parent's place.”
I accept the evidence from the father.
It is apparent from the cross examination of the mother (transcript of 5 September 2019, page 81) that when the mother returned with the child to the family home on 16 October 2017 she asked the father if she and the child could stay the night. I note the following evidence from line 10:-
“MS MCDIARMID: …He told you that you could stay the night?
MS LAMONT: Yes, he did.
….
MS MCDIARMID: And you went to the main bedroom to sleep?
MS LAMONT: I had X with me in the main bedroom, yes.”
The mother would have the Court believe that she does not feel safe around the father. I note the mother's evidence in relation to the events of 16 October 2017. It is apparent from the father’s evidence and the mother’s answers in cross-examination (referred to above) that the mother had an argument with her own parents and returned to the family home on 16 October 2017. It is also apparent that the mother asked the father to allow her and X to stay at the house. The father agreed to this. It is the Court’s finding that the father also bathed X and put him to bed that evening. When asked about this in cross-examination the mother said that she did not recall the father bathing X and putting him to bed. Despite her evidence to the contrary I do not accept the mother’s evidence that she is frightened of the father. In paragraphs 39 and 40 of her trial affidavit filed 14 May 2019: the mother stated:-
“39. On the day I returned on 16 October 2018, Mr Lamont agreed to move out, but he then refused to go. I ended up leaving with X on that same night because I did not feel safe at E Street with Mr Lamont. That night I found emails and a picture of a lady from the Country F on the family iPad. I confronted Mr Lamont about his affair with the woman during our marriage. He became angry with me and tried to grab the iPad off me. There was a physical struggle between us and Mr Lamont eventually took the iPad from me and changed the password. I was frightened and ran upstairs to the bedroom and locked myself and X inside.
40. At around 9.00pm Mr Lamont used a butter knife and opened my bedroom door. I was trying to resettle X back to sleep. From the smell on his breath, it was evident to me that Mr Lamont had been drinking. I was afraid of Mr Lamont. He had physically hit me in the past during arguments after he had been drinking. He used to punch me in the arms and on one occasion pushed my head back with his hands while I was sitting breastfeeding X. After the incident on 16 October 2017 I was too scared to stay in the house and I left with X. That same night I went to the Suburb G Police station and reported the incident. X and I then stayed at a friend's house that night and returned to my parents' house the next day.”
I do not accept the mother’s version of events. I do not accept that the mother is frightened of the father. I do not accept that the father had physically hit the mother in the past during arguments. I do not accept that the father used to punch the mother in the arms. The mother in this case is an intelligent and accomplished woman. I simply do not accept that the mother would have returned to the former family home on 16 October 2017 if she was in fact frightened of the father. She would not have asked the father if she and X could stay overnight if she was frightened of the father.
The father’s version of events is much more likely to be correct. The mother took X to the former family home on 16 October in 2017. The father told the mother that they were welcome to stay the night and whilst there the mother (note paragraph 39 of her trial affidavit) found emails and a picture of a lady from the Country F on the family iPad. The mother confronted the father and an argument ensued and, amongst other things, the mother started throwing the father's clothes outside the home.
My view that the mother is not frightened of the father is further strengthened by the fact that the mother again returned to the former family home on Friday, 20 July 2018. Once again, the mother had had an argument with the maternal grandparents and they did not want her staying any longer at their residence.
There was a further occasion when the mother attended at the former family home late on the evening of Monday, 23 July 2018. This was just a few days prior to a Court appearance. The father was asleep in bed when he heard the mother knocking on the door. I infer that the mother had had again some sort of disagreement with her own parents. The father would not agree to let the mother re-enter the residence on that occasion. He had been served with an affidavit that afternoon. The mother then attempted to enter a domestic violence shelter with the child that night. I agree with the submission made by Counsel on behalf of the father that her motives in doing so could be described as "strategic". The mother earns more than $100,000 per annum. The mother had money in her bank account and a credit card she could have accessed. The mother could easily have accessed accommodation at a motel or a hotel.
If the mother’s allegations that she is frightened of the father were true, then I consider it inconceivable that she would return to the family home on three occasions looking to stay the night.
I appreciate that on occasions a person who is (in fact) a victim of family violence may nonetheless return to live with the perpetrator of the violence. Those situations generally occur when a person has very limited options. In the present case, as noted, the mother had several other options. To begin with the mother had already separated from the father. That is, the mother had taken the decision (finally) to leave the marriage and move out of the family home – taking X with her. I have already referred to the other options available to the mother – noting once again her high disposable income. I do not accept the mother’s evidence in relation to these issues and I have come to the conclusion that the mother is not a reliable witness.
Where there is any discrepancy in the evidence of the father and the mother in relation to allegations of family violence – I prefer the evidence of the father. On one occasion the mother alleges that the father had pushed her head back with his hands while she was breastfeeding X. The father denies that any such incident occurred. I accept father’s evidence.
The impression I have formed observing the mother in the witness box is that she has a tendency to exaggerate. The mother and the maternal grandfather gave evidence that the father consumed alcohol to excess. There is no evidence that leads this Court to conclude that the father consumed alcohol excessively. There is no clear evidence specifically stating the quantity of alcohol which it is alleged that the father consumed. The father’s evidence, which I accept, is that on one occasion the mother complained to a police officer that the father had been to the pub and had consumed one beer. I accept the father’s evidence that the police officer appeared to be confused at this allegation by the mother. The police officers were also confused when the mother told them that the father had been at the pub for “20 minutes”. I note this evidence from paragraph 133 to 136 of the father's trial affidavit filed 14 May 2019. In those paragraphs the father states, in relation to an incident that occurred on 8 October 2016:-
“133.Ms Lamont then stated there was domestic violence. The officer asked if l hit her. Ms Lamont said no and said that I swore at her 18 months ago. I responded ‘I cannot recall if I had sworn at her – however I don't usually directly swear at people and can't recall ever directing swear words at Ms Lamont’.
134.The police officers again were confused by Ms Lamont's allegations. They were frowning and it appeared they couldn't understand why they had been called.
135.They suggested that Ms Lamont go somewhere she could rest as she was behaving quite unsettled.
136.The police officers also recommended some counselling services for Ms Lamont. They also mentioned that having a child that doesn't sleep well is challenging and it was clear to them that Ms Lamont needed rest and some assistance.”
I accept this evidence of the father.
I listened carefully to the evidence of the father, the mother and the maternal grandfather in relation to the question of the father’s consumption and use of alcohol. It may be an example of cultural differences. The father enjoyed stopping at the H Hotel on the way home to have a beer. This seems particularly to have been at that point in time when the father’s in-laws were living in the family home. The father was meeting with a builder who was carrying out renovations on the maternal grandparents’ new property also situated at Suburb B. I accept the father’s evidence that he had a device which he used to ensure that he never drove if he was over the legal blood alcohol concentration limit of .05. The father has no convictions for driving under the influence of alcohol. Apparently a subpoena was served by the mother and she was not able to uncover any such driving offences. The instances where the father allegedly fell asleep while carrying the child, bounced the child in the bouncinette and may have inadvertently hit the child's head on a range hood – are denied by the father. I accept his evidence. Even if such incidents had in fact occurred – one could say there was the possibility of potential harm to the child – but no such harm eventuated. I do not consider that the father’s consumption of alcohol poses any danger to the child. The mother in the present case is extremely vigilant. I do not consider that the mother would have agreed (at the time of entering into the parenting plan) for the child to spend unsupervised overnight time with the father if the mother actually considered that the child was at any risk because of the father's consumption of alcohol.
It was put to the father during cross examination (by Ms Pendergast, Counsel on behalf of the mother) that the father holds a view that the mother suffered some sort of medical event following the birth of X which affected the mother’s mental health. The mother has seen – and, it seems, continues to see a psychologist named Ms J. Ms J’s sworn affidavit was filed on 14 May 2019. It attaches a one-page letter dated 17 April 2019 addressed, “to whom it may concern”. It is apparent from Ms J’s letter that the mother commenced seeing Ms J in October 2017, “for support with managing depression and anxiety relating to the breakdown of her marriage to Mr Lamont”. The psychologist says that the mother presented “in significant distress and reported a history of emotional and verbal violence from Mr Lamont which was escalating in intensity as the relationship deteriorated”. It is said further by Ms J that, “Ms Lamont left the family home as a means to protect her young son, X, and herself from harm.”
It is apparent from the first paragraph of Ms J’s letter that the mother did suffer from depression and anxiety related to the breakdown of the marriage. I note that the mother told the psychologist that she had “left the family home as a means to protect her young son, X, and herself from harm”. I have great difficulty accepting the veracity of the mother’s statements to Ms J and the mother’s evidence in this regard. If the mother truly felt that she needed to leave the family home to protect herself and her son from harm – why did she return to the family home when the father was still living there? The mother did this on three occasions. As noted earlier in these reasons – the mother did this when she had other options.
In her written letter Ms J made no mention of the mother reporting any physical violence from Mr Lamont. However, under cross examination by Ms McDiarmid (Counsel on behalf the father) Ms J said that the mother had reported two occasions of physical violence – one where the father is alleged to have "flicked" the mother on the forehead and the other where the father is alleged to have bumped the mother’s arm. There was no evidence that the mother had reported to Ms J the mother’s evidence stated elsewhere that the father had repeatedly punched her in the arms. Furthermore, there is no evidence that the mother ever reported to her psychologist allegations that the father was drinking alcohol to excess. The mother did not complain to the psychologist about the father’s care of the child. I accept the father’s evidence that he was concerned that the mother may have been suffering from postnatal depression and he had urged the mother during the marriage to seek medical assistance. The issue in relation to whether or not the father holds a view (one way or the other) concerning the mother's mental health is only a minor issue in the case. It does not impact upon the ability of these parents to communicate now in a civil manner for the benefit of young X.
The same is true in relation to the mother’s allegations that the father engaged in racist or derogatory taunting of the mother and the maternal grandparents. I accept the father’s version of events. The father says that certain names were used by both himself and the mother during the marriage to describe some members of the maternal family and, it seems, to describe the mother herself. The mother referred to herself as “big head”. Post separation the father, it seems, has referred to the mother as “big head”. I think it is true that when a couple are together they may have what might be politely termed an "in joke" between them. There might, for instance, be name-calling by the couple (to each other) or in relation to extended family members or friends. What appears to have happened here is that the father and the mother did in fact have "in jokes" between them in relation to certain names or terms that were used for the mother and her family (in particular). Other names used were “the heads” – a reference to the maternal grandparents. I accept the father’s testimony that the mother called the maternal grandparents “the heads" also. Apparently the father referred to the child at one stage as “K”, which also means “big head”. There are other references and evidence that certain words or names were used. It seems that the mother’s maiden name was “L”. In relation to the names “L” it is alleged by the mother that the father inappropriately pronounced that name, “One Shit”. In relation to the mother's complaints concerning words or phrases used by the father to describe herself or the maternal family I accept the father’s evidence that the mother also used some of those phrases while the parties were together. However, post separation the mother is not comfortable with the father using any such names or terms. In those circumstances the father should, if he is continuing to use those names or terms – cease to do so.
I do note that section 4AB(2)(d) of the Act does refer to “repeated derogatory taunts” as coming within the definition of family violence. I do not consider that the use of those terms in this particular case amounts to family violence within the definition contained in the Act. The mother used some of those terms herself. The mother herself invented some of the names (particularly the reference to the size of a person’s head). Previously it was not a problem. Now it is a problem. In the interests of an ongoing civil parental communication for the benefit of X it will be best if the father ceases to use such terms. I do not accept that the mother in any way felt concerned or fearful by the fact that the father used those terms. However, as noted, given that the mother now is not comfortable with the use of such names by the father – as indicated – he should cease to use those names. I intend making a non-denigration order which will apply to both parents.
The Court was told by the mother that there has been conflict at the changeovers and that the maternal grandfather had taped these changeovers. The father taped the maternal grandfather once – apparently in response. Taping by either party is inappropriate. No recordings were produced in evidence. The date of the last alleged incident was 6 April 2019, which was several months before the trial. I accept the father’s evidence that he ceased helping to get X to the mother’s car at changeover when he became aware that the mother considered that he was “following her”.
I also accept the father’s evidence that he was threatened by an unknown man of Asian appearance. It seems unusual that this would be a coincidence – however I do not intend to make any particular finding one way or the other about that particular incident.
I note the written submissions on behalf of the father contained at paragraphs 33, 34 and 35. Those submissions state:-
“33. The mother places emphasis on notes apparently made by a Queensland Health worker on 15 June 2016. It is unknown what use the mother asks the court to make of the document. No attempt was made to call the maker of the notes. The weight that could be placed on such evidence is therefore minimal, if any.
34. The allegations made to that worker are inconsistent with what the mother told her Psychologist about physical violence.
35. The highest that could be made of the evidence in the note from Queensland health is that the mother might have said something like that to the health worker, who may have made a notification to the Department of Child Safety. There is no evidence of any investigation by the Department of Child Safety. The mother's evidence was that she did not raise the allegations with the father at the time. The maternal grandfather's evidence is that he did not raise the allegations of the father drinking to excess or putting the child at risk of neglect or abuse at the time or at all. The father denies the allegations.”
I accept these submissions made on behalf of the father. I accept the father’s denials and his version of events generally.
It will be apparent from the findings that I have made that I do not consider that any of the mother’s allegations of family violence against the father (even if they had been proved – which they have not) would have made much difference to the parenting orders to be made by the Court. The mother seeks an order that the child live with her primarily but spend five nights per fortnight with the father. If the mother truly believed that the father was a risk to the child she would not be agreeing to an order that the child spend five nights per fortnight with the father.
I note paragraph 78 of Ms D report where she stated:-
“78. X's opportunity to reap the benefits associated with enjoying a childhood without exposure to conflict or hostile tension will be best promoted by each of his parents addressing their own insecurities. Whilst each parent raises a range of criticisms and allege risk exists for X with the other parent, there is little collateral, observable or developmental evidence to indicate that these concerns hold the intensity or risk apportioned by the parents. In this regard, whilst not dismissing the potential existence of some of these behaviours and the potential for negative consequences for X, X's developmental progress, visibility at child care and observable healthy and secure relationships with each parent offer significant weight to minimise these risks.”
I do not consider that the child is at risk of any harm in either household.
ss.60CC(3)(l) and (m) and s.65DAA
An order that would be least likely to lead to the institution of further proceedings;
Substantial and significant time and equal time; and
Any other facts or circumstances that are relevant.
It is submitted on behalf of the father that the mother has deliberately and inappropriately prevented any increase in time between the child and the father. The parents saw Ms D on 29 August 2018. Ms D’s report is dated 21 September 2018 and was filed on 6 November 2018. The report recommends an increase in the father's time to 5 nights per fortnight. The mother would not agree to increase the father’s time.
As noted, at the time the trial commenced the mother’s proposal was that the child would live with the mother and spend alternate weekends with the father. At the commencement of the final day of the trial Counsel on behalf of the mother told the Court that the mother had changed her position and tendered orders which provided that the child would spend five nights per fortnight with the father. It took a long time for the mother to come to this position. The mother’s complaints about the father are many and varied. I have addressed many of those in these reasons for judgment already. I have come to the conclusion that the mother would not be proposing that the child spend five nights per fortnight with the father if she in fact had any real concerns about the father’s parenting ability. If the mother in this case considered that the child was in fact at risk in the father’s care the mother would not be proposing that the child spent five nights per fortnight with the father. The child is not at risk in the father’s care. The mother’s reluctance to agree to increase the child's time with the father is very worrying to the Court. It is a particular factor that the Court has to take into account under the section 60CC(3)(l), “whether it would be preferable (for the Court) to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.” Given the mother's reluctance and, indeed, defiant unwillingness to agree to an increase in the child’s time with the father I consider that it is necessary for the Court to closely examine the oral testimony of Ms D in order to determine what orders the Court should now put in place to provide a gradual increase in the time that X spends with his father. The father seeks orders that will provide for a gradual increase in X's time with him leading up to an equal time arrangement.
To start with, I consider that there is certain evidence that is particularly noteworthy in relation to the true situation between these two parents. The parents currently see each other at X's swimming lessons. Initially, it is the case that the parents were not communicating at the swimming pool. I infer from the available evidence that the father had tried to engage the mother in conversation at the swimming pool – but the mother preferred to sit in silence. That situation changed.
Now the parents can and do communicate in what I would call a civil and businesslike way in relation to issues relating to young X. In fact, now it is the case that the parents regularly have "chats" at the pool. The parents have been able to agree, for instance, on such matters as X having a break from his swimming lessons. Furthermore, the parents have been able to agree that young X should commence playing football. I note the father’s evidence in relation to the conversations that the mother has with the father at the swimming pool when X is having his swimming lessons. That evidence is contained from page 30 of the transcript dated 5 September 2019. X had been attending swimming lessons every Saturday morning at M Pool in Brisbane. The parents agreed that he would have one term off from swimming. The parents would see each other each week at the swimming lesson and chat about issues such as schooling, X’s health and general activities that he is doing. For instance, I note that during swimming lessons the mother told the father about an open day at Suburb B State School. The father attended at the school and the parents jointly decided that X will attend the Suburb B State School. The parents have also decided or agreed on the child care or kindergarten in Suburb B. Furthermore, the parents have agreed that X will attend the Suburb N High School. The parents have also been able to agree on a medical practitioner for X. X attended the football and both parents attended on those occasions also. I also note there has been face-to-face handovers at both residences recently (just prior to the trial), I note that the mother (at the time of the trial) was living with her parents again). I accept the father’s evidence that the mother suggested that young X join "Sports Team". This is apparently a football team or training organised by a well-known footballer. I note that the father on page 31 of the transcript dated 5 September 2019 stated:-
“HIS HONOUR: Now, tell me about when you do have your discussions at the swimming pool how long do they last?
Mr Lamont: Well, generally, most – let’s say this year, we would generally chat probably most the – the lesson – his half hour lesson. And we were – afterwards, he – I would go in the pool, the adult’s – the adult pool with him and he would have a – he would be jumping off the blocks and I would swim with him.”
The father gave evidence that in recent months (2019) the conversations have gone well. That is the import of his evidence. It has been a stable and civil communication. To the extent that there had been any discord or unpleasantness in their communication – things have settled down. The fact that these two parents have been able to talk once per week for half an hour while watching X having his swimming lesson is a significant point. It indicates that they do indeed have an ability to communicate in a civil and businesslike manner for the benefit of young X.
I accept the father’s evidence in relation to the parents' improving their level and amount of communication – as evidenced by the half hour chats at the M Pool each Saturday. To the extent that the mother does not agree or does not accept this evidence – I reject her evidence. I have come to the conclusion that the father is a more reliable witness and a more reliable historian. I repeat and rely upon the reasons provided earlier herein relating to the mother’s exaggerated claims of being "frightened" or "scared" of the father as evidence of her unreliability as a witness.
The Court will be making an order for equal shared parental responsibility. This is agreed between the parents. The Court is then required to consider whether an order for equal time or an order for substantial and significant time (section 65DAA) is in the best interests of the child. The mother concedes that X’s time with the father should be such that it does come within the definition of “substantial and significant time”. The mother does not want the time to progress to equal time.
In any event, when considering “reasonable practicality” in section 65DAA(5) (a term which is relevant in relation to both 65DAA(1) (equal time) and 65DAA(2) (substantial and significant time) one of the crucial matters for consideration is the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise – section 65DAA(5)(c). The conclusion I have reached is that the parents in this case do indeed have both a current and future capacity to communicate with each other and resolve difficulties that might arise in relation to the parenting of young X. Furthermore, in terms of reasonable practicality – I note that both parents live in the suburb of Suburb B – as do the maternal grandparents (s.65DAA(5)(a)). For the reasons stated (particularly the evidence in relation to communication and cooperation concerning important issues for X) I find that the parents in this case do have a current and future capacity to implement an arrangement for the child spending equal time with each parent. Obviously the same conclusion is applicable to an order for substantial and significant time. They have already agreed on a high school and this is 8 years away!
I agree with the submission made on behalf of the father. The mother has unreasonably refused to increase X’s time with the father – especially following the receipt of the family report. It was not until 18 September 2019 (the last day of the hearing) that the mother amended her position and agreed to adopt the recommendation of the report writer that X spend five nights per fortnight with the father. My conclusion that the mother acted unreasonably is supported by the findings that I have made earlier in these reasons for judgment. The mother is not in fact "frightened" or "scared" of the father. The mother does not in fact believe that the father poses a risk to the child. And yet, notwithstanding those facts – the mother continued to refuse to agree to an increase in the child’s time with the father. I agree with the opinion of Ms D stated at page 12 of the transcript on 18 September 2019 (from line 25) – that the conduct by the mother demonstrates the mother’s lack of insight into X’s needs. Ms D states:-
“I would be concerned about that attitude and about the fostering of that relationship for X with his father”.
My view that the mother has acted unreasonably and has demonstrated a lack of insight is further strengthened by the evidence of Ms D to the effect that, during the interview process with Ms D, the mother acknowledged that she was motivated to resolve the parenting dispute – I infer, by reference to the recommendations of the family report writer. And yet nothing happened. The mother would not agree to any increase in the child’s time with the father following the family report.
Ms D noted that it has been “quite a slow process in being able to achieve any substantial time for X with both parents” (Note page 13 of the transcript, line 1).
In the father’s case outline I note, initially, paragraph 5, where the following proposed orders are set out:-
“5. Unless agreed otherwise, the child spend time with the Father, as follows:
(a) For the first four weeks from the date of these Orders:
(i) in weeks one and three, from Thursday 3 :00pm to Saturday 4:00pm;
(ii) in weeks two and four, from Thursday 3:00pm to Friday 3:00pm;
(b) For the second four weeks from the date of these Orders:
(i) in weeks one and three, from Thursday 3:00pm to Sunday 4:00pm;
(ii) in weeks two and four, from Thursday 3:00pm to Friday 3:00pm;
(c) For the third four weeks from the date of these Orders:
(i) in weeks one and three, from Thursday 3:00pm to Monday 8.15am;
(ii) in weeks two and four, from Thursday 3:00pm to Friday 3:00pm;
(d) commencing 2 January 2020, as follows:
(i) in week one, from Thursday 3 :00pm to Monday 8:00am;
(ii) in week two, from Wednesday 3 :00pm to Friday 3 :00pm.”
This proposal was put to Ms D during the course of her oral testimony. Ms D considered that a progression in line with the proposal contained in paragraph 5 of the father’s case outline would be in keeping with X's projected developmental needs.
It is to be noted that paragraph 5(d) of the father’s proposal would see an increase in the time that X spends with his father to 6 nights per fortnight.
Paragraph 6 of the father’s proposal relates to living arrangements after 5 January 2021. Paragraph 6 states:-
Living Arrangements After 5 January 2021
6. That unless agreed otherwise, commencing 6 January 2021, the child shall live with each parent, on a fortnightly basis, as follows:
(a) With the Father from Wednesday 3:00pm (or from school after school) to Monday9:00am (or to school before school), for a period of five nights;
(b) With the Mother from Monday 3:00pm (or from school after school) to Wednesday 9:00am (or to school before school), for a period of two nights;
(c) With the Father from Wednesday 3:00pm (or from school after school) to Friday 9:00am (or to school before school), for a period of two nights;
(d) With the Mother from Friday 3:00pm ( or from school after school) to Wednesday 9:00am (or to school before school), for a period of five nights.
This would see an increase in the time that X spends with his father to 7 nights a fortnight, but split in an arrangement of 5 nights in one block followed by a separate block of 2 nights each fortnight. When asked about that proposal Ms D stated at page 16 of the transcript from line 16:-
“MS MCDIARMID: Would you agree with me that there is no reason why that couldn't be successfully implemented at that time, in accordance with his projected developmental needs?
MS D: Yes, I would agree with that. In terms of a developmental perspective, that – that would be well within his capacity at that time."
Paragraph 7 of the father’s outline of case states:-
“7. Thereafter, commencing on the first Sunday at 5.00pm after commencement of school term 1 in 2022, the child shall live with each parent on a week-about basis for a period of seven (7) nights, from 5.00pm on Sunday to the following Sunday at 5.00pm with the parent who does not have the child in their care on the first Saturday night after commencement of school term 1 in 2022 to have the child for the first week.”
Paragraph 7 of the father’s outline of case relates to that period of time from the commencement of school term 1 in 2022.
Ms D gave the following evidence in relation to the proposal of the father that X’s time be extended to a week about shared care arrangement from the commencement of term 1 in 2022. From page 16 line 19 of the transcript on 18 September 2019 I note the following evidence states:-
“MS MCDIARMID:… And then would you say that it would be appropriate that by the time another year passes, he would be at an age and stage of development where the family could easily manage the equal time alternate weeks as in paragraph 7?
MS D: Yes. And, certainly, the professional literature highlights that once children are of that school age, there are no significant detrimental impacts on their development or emotional wellbeing to extend that time away from a previous primary caregiver.”
The mother’s view of the father is (somewhat) negative. At the time of the final hearing the child was aged 3 years and seven months. The evidence revealed that when he returns from time with his father the mother breastfeeds him “to comfort him”. There is also evidence from the mother that when asked why X could not eventually – on a very graduated basis – live with each parent on an equal time basis – the mother said that the father had not shown that he is a responsible parent regarding the school routine. X, of course, hasn't started school but I infer that the mother was referring to day care. There is no evidence (which I am prepared to accept) that the father has not acted responsibly regarding day care.
The mother stated at page 97 of the transcript on 5 September 2019 (from line 26) as follows:-
“Ms McDiarmid:…did you ever think for a moment, instead of looking to criticise the father, that it might be good for X to spend some more time with his father?
MS LAMONT: yes, when it is safe for X.”
There is no evidence that X has not been safe in the care of the father. The mother does not believe that X is unsafe in the care of the father. Indeed, the mother now asks the Court for an order that X live 5 nights per fortnight with the father.
The evidence of the maternal grandfather also indicates to the Court that within the maternal household (noting that the mother, at the time of trial, had returned to live with the maternal grandparents) there is a negative view of the father.
In light of these findings, I note the following evidence of Ms D from page 18 of the transcript on 18 September 2019 line 26:-
“MS MCDIARMID:…X is likely to become aware of the mother’s attitudes towards the father as he gets older; is that right? For instance, she doesn’t want him to go and that she’s supported in her views in that household by her parents?
MS D:… if he’s exposed to that attitude, or to a passive resistance or over-mollycoddling when he returned home to suggest to him that that experience wasn’t safe or wasn’t positive for him, then – then that would directly have a transference of him around some anxiety or uncertainty about his safety and – and place a belonging with his father, yes.
MS MCDIARMID: Yes. To suggest to him, even impliedly, that there are risks if he’s with his father or that his father is seen really in a negative light, that’s going to be damaging to him, isn’t it?
MS D: Yes, and particularly because children – and particularly moving into the developmental age group of – of middle childhood which X will move into as he starts school – continue to see their parents as an extension of themselves.
MS MCDIARMID: Yes.
MS D: So where critical comments are made about the other parent, children intrinsically then reference that being a part of themselves. So it is very damaging on their own sense of identity and – and emotional health, as well.”
The inference that I draw and the conclusion that I reach from the evidence of Ms D is that it is in X's best interests to put in place orders that will see him spending as much time as possible with his father – consistent with the child’s best interests. The inference to be drawn is – the more time that X spends with his father – the less impact any negative attitudes within the maternal household will have upon the child in relation to the father. Ms D was cross-examined in relation to whether or not the best interests of the child would be served by changing the primary residence. Ms D certainly left open the possibility that X's best interests may be served by a change primary residence. I note Ms D evidence (18 September 2019) from page 19 of the transcript, line 23:-
“Ms D: …So it will be a matter for the court to weigh up around whether they hold confidence that the mother is now changing her attitude, and if they’re convinced about that, then moving into a transition of – of something similar to the current proposed orders that we just went through with the father would be child focused for X. If the court, however, found that the mother’s conceding to the five nights is occurring in the context of a trial and – and is not representative of the pattern of her behaviour to date, then the court may need to give strong consideration around, long term, whether the adjustment X will go through to change primary caregiver will outweigh those longer-term benefits of being able to have a relationship with both parents.”
Ms D was questioned further about the possibility of X transitioning to live primarily in the care of the father. I note from line 34 of the transcript dated 18 September 2019 at page 19 the following evidence:-
“MS MCDIARMID: So would you agree with me that if the mother hasn’t changed her attitudes, that even on an arrangement that eventually graduated into equal-shared time, that is, the father’s orders sought as you’ve seen them, that that wouldn’t be sufficient to guard against the negative influence on X in his mother’s household and the long-term damage that could do?
MS D: it would depend how pervasive that is. If – if the court are finding through the evidence that there is direct overt comments occurring in X’s presence, that he’s being actively discouraged from time, that critical comments are being made, then, yes, we – we would be really looking to say, well, minimising his time in an environment like that is going to be consistent with his emotional needs. If the attitude is being contained more so to the adults and it’s – it’s – it’s more subtle to the point where we’re not actually seeing any observable outcomes, what we see in young people is that ultimately X will hold his mother accountable for that in time and he will vote with his feet when he’s old enough to do that if she can’t curb her own behaviour. And in the meantime, he has been able to have a good enough relationship with both parents to ensure that that meaningfulness exists for him.
MS MCDIARMID: But what if it goes the other way and he’s eventually influenced to the point where he doesn’t want to spend time with his father because he has taken on or doesn’t have emotional freedom to not take on the negative views in his mother’s household?
MS D: That is certainly a risk and – and one that should strongly be considered. If he’s having the equal time arrangement or close thereto, substantial time arrangement, his age and capacity as that increases will allow him to be able to do some critical thinking around that. But absolutely. If the court are concerned that that’s – that is a probable and highly likely behaviour that’s going to be overt and impact him, then there will need to be a big consideration around how much time he spends in that household.”
The mother’s attitude towards the father manifested itself in the period of time following the family report in late 2018. As noted earlier, the mother, notwithstanding the recommendations of the family report writer in late 2018 – steadfastly refused to agree to an increase in the child’s time with the father. When I combine that fact with the other findings made in these reasons for judgment I come to the conclusion that it is very much open to the Court to consider that this is the kind of case where a change of primary residence may be in the child’s best interests. However, I did note in the evidence of Ms D a certain reluctance to unequivocally support a change of residence – at this point in time. Specifically, Ms D noted that she has not done an up-to-date assessment in respect of the family.
Notwithstanding the fact that there are findings made and evidence from the family report writer that could go towards supporting a conclusion that change of primary residence is warranted – I note that the father is not seeking an order for change of residence in the present proceedings. This is, in fact, a sensible and child focused approach by the father.
The evidence of Ms D supports a move to equal time – graduated as stipulated in the father’s case outline. Equal time would not commence until 5 January 2021 (5 nights one week 2 nights the next week with each parent) equal time in a 7 night block with each parent would not begin until school term 2022. I appreciate that school term 1 in 2022 is still two years into the future. There is, undoubtedly, a level of speculation involved. This is true in any parenting case. I will return to this point shortly.
The family report writer was cross-examined by Ms Pendergast, Counsel on behalf of the mother. I note from page 27 of the transcript on 18 September 2019 (from line 1) the following evidence of Ms D:-
“MS PENDERGAST: Yes. So we’re really in the realms, in terms of either moving X from his mother or going – putting in place orders that progress to a seven-day about arrangement, we’re really in the realms of speculation, aren’t we?
MS D: I think research would support that when we’re working with people we’re always within some realm of speculation. I think what we’re needing to look at is not just the short-term implications but we’re looking at a greater picture as well and we’re looking at long-term, how can these parents, which of these parents or can both of these parents foster and support X having a healthy relationship with their mum and dad in the context of my assessment, which the court may find otherwise – facts or otherwise for, that he does have two parents who can meet his daily care and protective needs. What I’m hearing today in the cross-examination by way of update is that there has been quite a long sense of restriction and incapacity for the mother to really progress supporting X’s relationship with the father, and if the court are going to foresee that that is going to continue and have a pervasive and, you know, persistent attitude around X’s capacity to enjoy those relationships, then the bigger picture is that we do have a young child who will be able to adjust to some significant changes over the – over the coming periods and that, long-term, that may otherwise serve his best interests.”
The update provided to Ms D (by Counsel for the father, Ms McDiarmid) are now, essentially, findings of the Court. It is the case that there has “been quite a long sense of restriction and incapacity for the mother to really progress supporting X's relationship with the father”. Ms D is correct when she states that “we’re always within some realm of speculation”. This is very much true in relation to Courts. I appreciate that it is not often the case that a Court will put in place orders progressing to equal time framed over a two-year period – especially when the child is, at the time of judgment, only about to turn four years old. Furthermore, I am well aware that the family report was approximately one year old at the time of the final hearing. I am also well aware that the father's time with the child has been restricted and there hasn't really been a "testing" of the father as the sole parent looking after the child over significant periods of time. However, that is because the mother would not agree to increase the child's' time with the father. The mother, on the one hand, cannot restrict the father's time and then rely upon an argument that the father is "untested" as a parent. It is not a very strong point in the mother’s favour that she has complied to date with the current orders of the Court. Those orders were extremely restrictive of X's time with the father. I have no confidence whatsoever that, in the absence of a Court order, the mother will agree in the future to progress X's time from 5 nights a fortnight to 7 nights a fortnight with the father. Indeed, I have no confidence that the mother would agree to any increase in X's time with the father beyond 5 nights a fortnight. The mother has shown a defiant unwillingness to “progress in supporting X's relationship with the father”. Given the findings made by the Court and given the evidence of Ms D (to which I have referred) it is clearly Ms D’s opinion that a progression to equal time is in X's best interests – even in the absence of an updated family report and even in the absence of any evidence to date of the father caring for the child over an extended period of time in the context of a single parent. There is evidence from the father (which I accept) that he was very much involved in X's life when the parents were together. I have no doubt that the father is well able to care for X. I note that I have accepted the father’s evidence that, post separation, on one of the occasions when the mother brought X to the former family home the father bathed X and put him into bed. The father has the necessary parenting skill to care for this child 5 nights per fortnight, progressing to 6 nights per fortnight and subsequently to 7 nights per fortnight as proposed by the father and supported by the family report writer during her oral evidence as being in accordance with the child’s projected developmental needs (note transcript 18 September 2019, page 16 from line 16). One of the specific considerations for the Court stated in section 60CC(3)(l) requires the Court to consider:-
“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."
The available evidence indicates that – in a graduated way – the implementation of equal time will be in the best interests of X. If the Court fails to put in place an order now for equal time to commence in term 1 2022 – he conclusion I have reached is that the institution of further proceedings is not only likely – it is a certainty. It is in the best interests of the child to avoid the institution of further proceedings.
I note the further evidence of Ms D in answer to a question from Ms Pendergast, Counsel for the mother (transcript page 28 from line 31):-
“MS PENDERGAST: If there’s no evidence on the material that the mother has made derogatory comments to the child about the father’s experiences or time with the child or the father’s relationship with the child. That would bode well for the mother supporting an ongoing relationship, wouldn't it?
MS D: Well, direct comments in and of itself are not the sole predictor for these attitudes and particularly for a child of X’s age, what we’re talking about is attunement, so we’re talking about non-verbal signals having a significant communication factor for children of this age group so I wouldn't agree with that statement entirely. I would say that the court would be looking at a whole range of behaviours around other non-verbal behaviours as well in terms of the change in her behaviour, the change in her nurturing of him when he comes home, a change in her sense of mood and attitude when he’s in the transition period, so there are a myriad of things that the court would look at to determine around that facilitative attitude.”
The conclusion I have reached is that the mother is indeed providing non-verbal signals to the child upon his return from the father’s care that would indicate that the mother holds a concern about the father’s ability to care for the child. Primarily, I am referring to the breastfeeding of the child upon the return of the child from time with the father. It is not relevant that the mother may breastfeed the child on other occasions. The evidence is that the mother does breastfeed the child when the child returns from the father. The overall general negative attitude towards the father held by the mother and by the maternal grandfather is sufficient evidence for this Court to conclude that, at the very least, there is and has been a lack of support within the maternal household towards the child’s relationship with the father.
It is clear enough that the mother unreasonably refused to agree to any increase in the child's time with the father following the release of the family report. I have referred to this several times in these reasons.
I note the submission made on behalf of the mother (submissions in reply paragraph 6, filed 23 October 2019) that the father’s behaviour toward the mother is disrespectful, derogatory, manipulative and on occasion coercive. I have already made findings in relation to the allegations of derogatory taunts and the allegations relating to disrespectful behaviour. I do not accept any evidence from the mother that the father has been "manipulative" or "coercive". The submission made on behalf the mother is that the father “essentially regards himself as having rights to the child and time with the child”. This is an extraordinary submission having regard to the mother’s behaviour and the determined conduct of the mother to reject any reasonable proposal for an increase in the child’s time with the father.
The photograph of the child with a beer bottle with was not particularly telling one way or the other. It could probably be said that photographing the child in those circumstances is in itself "childish". Some people might think that it is funny. The mother does not. The fact that the mother does not think it is funny is, in itself, a good reason for the father never to do such a thing again. What the parents need in this case is to continue to work cooperatively as indicated by their improvement in their communication.
I have already noted that the family report is over 12 months old at the time of the hearing. But the other factors referred to in the reasons for judgment (in particular the mother’s negative attitude towards the father and the unreasonable unwillingness by the mother to agree to an increase in time) are, it seems to me, factors which outweigh any arguments against putting in place an order that leads to equal time. I do not accept that the relationship between the parents is “mistrustful” and that “communication is not good”. I have made findings to the contrary. I have referred at some length to the important matters that the parents have agreed to in recent times. I have also referred to at some length the extent of the improvement in communication between these parents, as evidenced by their weekly half hourly chats at the swimming pool where they were able to agree in relation to important ongoing issues concerning X and his extracurricular activities – not to mention their agreement in relation to primary school, high school, general practitioner, etc.
Conclusion
It will be apparent that the Court has concluded that it is in the best interests of the child to spend substantial and significant time with the father. Further, it will be apparent that the Court has concluded that in a graduated way it is in the best interests of the child to increase the substantial and significant time (5 nights a fortnight) to 7 nights per fortnight – in accordance with the proposal of the father as put to the family report writer during the oral testimony of Ms D. I accept Ms D's opinion.
At the heart of the matter is the ability of the parents in this case to foster X's relationship with the other parent. The father clearly has the ability to foster X’s relationship with the mother and the maternal family. Despite the fact that there is evidence to support a conclusion of a possible change in primary residence – the father has not sought such an order. The father has remained child focused. On the other hand the mother’s actions to date in attempting at every turn to restrict the father’s time with the child (until the last morning of the trial) indicates to the Court a demonstrated inability by the mother to foster and support X’s relationship with the father. In those circumstances the orders proposed by the father and (as noted) supported by the family report writer, are in X’s best interests.
I have already given reasons in relation to the best interests of the child in relation to the substantial and significant time and equal time. It is indeed reasonably practicable. I note the following:-
a)Despite evidence to the contrary – I do not accept that the mother in this case is in any way scared or frightened of the father;
b)The parents both live in close proximity (Suburb B);
c)The child attends a day care facility in the Suburb B area;
d)By agreement the child will attend the Suburb B State School when he reaches school-age;
e)By agreement between the parents, the child will attend the Suburb N State High School when he reaches high school-age;
f)I have concluded that the parents do have the current and future capacity to implement an arrangement for the child to spend substantial and significant time and, eventually, equal time with each of the parents;
g)I have already concluded that the parents have the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing X's time with each parent (section 65DAA(5)(c));
h)The child’s behaviour when he returns from time with the father at the moment is telling. He does appear to throw a tantrum. Ms D’s view is that this indicates that the child is not getting enough time with the father;
i)Putting in place an order now that graduates to equal time is essential because of the mother’s demonstrated unwillingness or inability to agree to any reasonable increase in the child’s time with the father. Indeed, the trial was practically over by the time the mother, finally, changed her position and increased her proposal to a 9/5 proposal; and
j)As noted earlier, it may be unusual for a Court to put in place an order that graduates to equal time given the young age of this child – however the particular circumstances of this case demand such an approach.
Given the amount of time devoted during the final hearing to the question of the consumption of alcohol – and with a particular eye on section 60CC(3)(l) – I consider that it is in X's best interests for there to be in place an order that the parents do not consume alcohol beyond .05% blood alcohol concentration while X is in their care – unless another responsible adult has been arranged to care for X at that point in time.
In addition, given that there has been such ridiculous behaviour as the taping of the father at changeover (and apparently retaliatory taping by the father – on one occasion – of the maternal grandfather at changeover) – if changeovers can be facilitated at day care, kindergarten or school, then that should occur. Otherwise, in the absence of an agreement between the parties, changeover should take place at a McDonald’s.
The parties will be given time to submit orders to the Court reflecting the reasons for judgment.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 26 February 2020
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Family Law
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