LANCASTER & SAGE - [2012] FMCAfam 223

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANCASTER & SAGE

[2012] FMCAfam 223

FAMILY LAW – Whether should be order for equal shared parental responsibility when lack of communication between parties – whether should be order for nearly equal time when lack of communication and cooperation between parties.

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61D, 61DA, 65DA, 65DAA

Starr & Duggan [2009] FMAC 115
Mallahan & Mallahan [2010] FamCA 631
AIF v AMS [1999] HCA 26
U v U [2002] HCA 36
Chappell & Chappell [2008] FamCAFC 143

Applicant:

MR LANCASTER

Respondent:

MS SAGE

File Number:

DGC 4165 of 2010

Judgment of:

Phipps FM

Hearing dates:

1 & 2 February 2012

Date of Last Submission:

2 February 2012

Delivered at:

Dandenong

Delivered on:

13 March 2012

REPRESENTATION

Solicitor for the Applicant:

Mr Weerappah

Solicitors for the Applicant:

Bayside Solicitors

Counsel for the Respondent:

Ms Gordon

Solicitors for the Respondent:

Vivien Mavropoulos & Associates

ORDERS

That the father and the mother have equal shared parental responsibility for the child X born (omitted) 2007.
That the child live with the mother.
That the child spend time with the father as follows:
(a)Each alternate weekend from after school Friday until before school Monday, commencing 30 March 2012;
(b)Each alternate week from after school Monday to before school Tuesday, commencing 9 April 2012;
(c)Half school term holidays as agreed and if not agreed the first half;
(d)Half summer school holidays as agreed and if not agreed the first half in 2012/2013 and each alternate year thereafter and the second half in 2013/2014 and each alternate year thereafter;
(e)On the child’s and the father’s birthday, unless otherwise agreed, from after school until 5.30pm on school days and from 10.00am to 2.00pm on non school days;
(f)On Father's Day from 10.00am to 6.00pm;
(g)Otherwise as agreed.
Notwithstanding any other order the child will spend time at Christmas as follows:
(a)From 4.00pm 24 December 2012 until 12.00noon 25 December 2012 and each alternate year thereafter and from 12.00noon 25 December 2013 until 4.00pm 26 December 2013 each alternate year thereafter with the father;
(b)From 12.00noon 25 December 2012 until 4.00pm 26 December 2012 and each alternate year thereafter and from 4.00pm 24 December 2013 until 12.00noon 25 December 2013 and each alternate year thereafter with the mother.
In the event that the child is spending time with the father time is suspended:
(a)From 10.00am on Mother's Day;
(b)On the mother’s and the child's birthday, unless otherwise agreed, from after school until 5.30pmon school days and from 10.00am to 2.00pm on non school days.
The child's time with the father pursuant to paragraph 3 (a) and (b) is suspended during all school term and summer holidays.
Changeover for the purpose of the child spending time with the father, when not at the child's school, will take place outside the Mordialloc Police Station.
Each party will keep the other informed of any serious injury or illness to the child while the child is in that party’s care and the name of any treating medical practitioner or hospital.
Each party, at that party’s expense, is entitled to receive school circulars and reports and the like and to attend information nights, parent-teacher interviews, school plays and sporting events and similar occasions at the child's school.
Each party is restrained by injunction from denigrating the other party to or in the presence of the child.
Each party is entitled to communicate with and obtain reports from any of the child's treating medical practitioners.
Otherwise all extant applications and dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 4165 of 2010

MR LANCASTER

Applicant

And

MS SAGE

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Lancaster, the father, and Ms Sage, the mother, have one child, X born (omitted) 2007. He lives with the mother and spends alternate weekends from 5.00pm Friday to 5.00pm Sunday and 1.30pm to 5.00pm on alternate Tuesdays with the father. The parents disagree about parental responsibility, an increase in the child’s time with the father and the school the child should attend.

Proposals

The father proposes that the parties have equal shared parental responsibility for the child. The father proposes that the child live with his father, from 5.00pm on Friday until the commencement of school the following Tuesday in one week and from 5.00pm on Monday until commencement of school on the following Wednesday in the other week and otherwise he live with the mother. The father proposes that the child spend half of each school holidays with each parent.
At the commencement of the hearing the mother proposed that she have sole parental responsibility for the child. She proposed that the child live with her and spend time with the father:
a)From 5.00pm Friday to 4.00pm Sunday each alternate weekend;
b)During school vacations including the summer Christmas holiday, in each week, three consecutive days (not to follow on weekend times);
c)Day times on special days, such as child's and parents’ birthdays, Christmas Day and Fathers Day.
At the close of the evidence and before Counsels’ final addresses I suggested that an alternative to the proposals put by each party might be for the child to spend time with the father from after school Friday to before school Monday alternate weekends and one overnight in the intermediate week.
The mother then put a different proposal. She proposes that she have sole parental responsibility for the child, the child live with her and spend time with the father:
a)Until the end of school term 2 2012 as at present that is from 5.00pm Friday until 5.00pm Sunday alternate weekends;
b)From the commencement of school term 3 2012, from 5.00pm Friday until of the commencement of school Monday alternate weekends;
c)In addition, at the commencement of school term 4, one overnight time in the alternate week to weekend time;
d)In school holidays;
i)Term 1 2012 three days in each week;
ii)Term 2 2012 four days in each week;
iii)Term 3 2012 and term holidays thereafter half school holidays;
iv)Christmas holidays three weeks week about with each parent;
v)Christmas alternating Christmas Eve and Christmas Day;
vi)10.00am to 5.00pm on Father's Day;
vii)Time on the child’s birthdays and the father's birthday;
viii)The father’s time be suspended for a time on the mother's birthday and the child's birthday.

History and preliminary

The father was born on (omitted) 1976. The mother was born on (omitted) 1975. Both are aged 36 years.
They commenced a relationship in 2006. According to the mother they commenced living together, separated for a short time and resumed living together in November 2006. They lived in the father's house in (omitted). The father is employed as a (omitted). The mother works part time as a (omitted).
After the child was born the mother alleges that she was the main carer for the child and that the father had little to do with the child's care. The father disputes the mother's description. He says that he was much involved with the child's day to day care.
The mother alleges that the father consumed alcohol to excess and used non prescription drugs during the relationship, both of which the father denies. She says the father was verbally abusive, again something the father denies.
The relationship deteriorated in early 2010. In August 2010 the parties, the child and the mother’s parents went on a five day skiing trip to (omitted). The deterioration in the relationship can be illustrated by each party’s version of the trip.
The father says that he had little interest in skiing and that the mother spent her time in skiing lessons and skiing and he cared for the child. The mother says the father spent most of his time on his laptop computer and gave the child little attention.
The mother alleges that on one occasion during the skiing trip the father was having difficulty attempting to help the child get dressed. She says that he struck the child, squeezed his cheeks, pulled him along and shoved him into the ground. The father denies striking or ill treating the child.
Separation occurred on the 20 September 2010 when the mother left with the child and went to live in her parent’s house nearby in (omitted). She and the child have lived there since.
From separation until early October the child spent agreed times, including overnight time with the father. On 19 October when the child was spending time with the father he became very distressed at bed time. The father says that the child told him that the mother had said it was scary at daddy’s house and that things were not safe for him. The father recorded the child and gave the mother a copy he says to show her, he said, how her behaviour was affecting the child.
The mother stopped overnight time. The father went to the mother's parents’ house on the 22 October 2010 wanting to collect the child. He says it was an agreed time for the child to be with him. The mother did not open the door. She claims that for about four and a half hours the father intermittently rang the door bell and rang the home telephone. The father acknowledges that he rang the bell and telephoned on a number of occasions.
The mother says a similar event happened on 8 November 2010 and her mother telephoned the police. The child spent time with his father on 9 November and there was a dispute about his return. The mother applied for an intervention order on 11 November 2010. On 10 December 2010 the father, without admission, consented to a final intervention order.
The father commenced this proceeding on 6 December 2010. He did not see the child again until after orders were made on 31 January 2011. Those orders provided for the child to spend time with the father each Saturday and Tuesday from 2.00pm to 5.00pm commencing 1 February 2011.
Further orders made on 4 April 2011 provided for the child to spend time with the father each week from 5.00pm on Friday until 5.00pm on Sunday commencing 8 April 2011, and each week from 5.00pm until 7.00pm Tuesday.
The parties and the child met with a family consultant, Mr M. on 18 May 2011. The father was accompanied by his new partner. Mr M. gave an oral report on that day. Mr M.’s observations provide a useful insight into the dispute as it exists now. The mother proposed to Mr M. that she have sole parental responsibility and said her preference was that the child spend no time with the father but she recognized that there would be some form of contact. She proposed no overnight time but Saturdays from 10.00am to 5.00pm, 4.00pm in winter months, and Tuesdays from 4.00pm to 6.00pm.
Mr M. said that when he told the child that he intended bringing his father into the childcare room the child seemed concerned, if not alarmed, that his mother might discover what happened. When Mr M. explained to him that he had already talked to his mother about bringing his father into the playroom the child accepted it. When his father came in the child asked if his mother knew he was there. Mr M. described the child's interaction with the father as very relaxed, natural and comfortable.
Mr M. said that it was clear from his observations of the child and of his father that the child enjoys spending time with his father. Mr M. said he believed there is a possibility that contact may not be encouraged in the mother’s home and there may be a degree of overprotection.
On the 20 May 2011 I ordered that the child spend time with the father from 5.00pm Friday to 5.00pm Sunday each alternate weekend commencing 20 May 2011 and from 1.30pm to 5.00pm each alternate Tuesday commencing 21 May 2011.
On 20 May 2011 I ordered the preparation of a family report which was done by Dr H. and is dated 31 July 2011. On 18 August 2011 the application was fixed for filing final hearing on 1 February 2012 with directions for the filing of affidavits.
Affidavits filed for the final hearing showed a new issue, which school the child should commence in preparatory in 2012. The mother had enrolled the child first in (omitted) Primary School then cancelled that enrolment and enrolled him in the (omitted) Primary School, in (omitted). The mother had not consulted the father and the father first knew of the enrolment through an exchange of correspondence between the solicitors in December.
The father then met with the Principal of (omitted) Primary School and learnt of the earlier enrolment and enrolled, or re enrolled the child at (omitted) Primary School.
This meant that on the morning of 1 February 2012 less than 48 hours before the child was to commence school for the first time he did not know which school he would be attending. Apparently each parent told him he would be attending that parent’s school and each parent had purchased uniforms for the chosen school.
Evidence and submissions for the final hearing were estimated to take two days which meant that if the school question was dealt with as an issue in the final hearing, judgment would not be delivered and orders made prior to the time the child was to commence school. Consequently, I held an interim hearing on the question of schooling prior to the commencement of the final hearing. This included hearing some oral evidence.
I determined on an interim basis that the child should attend (omitted) Primary School. I gave reasons at the time but principally I decided on that school because I considered that the child would most likely be anticipating attendance at that school. He had not completed the induction sessions at (omitted) Primary School and subsequently had attended orientation at (omitted) Primary School. He spends the majority of his time with his mother who must have talked to him about the (omitted) Primary School.
The question of final orders on schooling remains. After discussion with counsel for the parties I directed that the evidence in the interim hearing be included as evidence in the final hearing.

Children's provisions

Provisions concerning children are contained in Part VII of the Family Law Act 1975 (Cth). The objects of Part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.
Section 60CA provides that the child’s best interests is the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC.
Section 61DA requires the court to apply a presumption that it is in the best interests of the children for parents to have equal shared parental responsibility. The presumption is rebutted if there are reasonable grounds to believe there has been abuse of the child or another child a member of the family, family violence, or if it is not in the best interests of the child.
If the court makes or intends to make an order for equal shared parental responsibility, s.65DAA provides that the court must consider whether equal time with each parent would be in the child's best interests and reasonably practicable, and if equal time is not appropriate, the court must consider whether substantial and significant time would be in the child's best interests and reasonably practical. Considerations for determining what is reasonably practical are in s.65DAA(5).
By s.65DAA(3):
a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays;
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The Full Court of the Family Court said in Starr & Duggan [2009] FMAC 115 at [38] and [39]:
38.…a logical approach is to:
first make findings concerning the relevant s 60CC factors;
then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests,…

The evidence

The parties have not spoken for eighteen months. All communications have been in writing. The mother does not attend changeovers. The child is taken to changeovers by the maternal grandmother.
The father is irritated by the mother’s communications. He regards them as constantly blaming him for the child’s illnesses and injuries and giving unreasonable directions to him about the child’s care. He says his irritation is the explanation for his behaviour when he collected the child from the grandmother outside a supermarket on 17 June 2011.
Film from a security camera captured the incident. The maternal grandmother, using a walking stick walks up the ramp holding the child's hand. She has a piece of paper in one hand and as she and the child reach the father she holds the paper out towards the father. He does not take the paper and manoeuvres his way around the grandmother as she keeps holding the paper out towards him. The father picks up the child and walks away. The grandmother then talks to the father’s partner who takes the paper and both walk away.
The paper, or rather two pieces of paper, is a note from the child's doctor saying the child was suffering from bronchitis, that he needs to stay inside, adequate fluid intake and antibiotics as prescribed. The larger piece of paper is a note from the mother which says that the child has infectious bronchitis and "He has been sick since he returned from your care on Sunday 5th June” and detailed instructions for the child's care.
The grandmother, as she held out the note, was saying that the father had to take the note and read it before he took the child.
The father's explanation for refusing to take the note was that he was sick and tired of constantly receiving such notes. He may well have been justified in being irritated at the constant accusations of not properly caring for the child, but he did not seem to appreciate that it would be better to take the note and not expose the child to an unpleasant experience. He appeared to think his behaviour was justified because of what he saw as the mother’s constant and unreasonable accusations and demands.
The poor relationship between the parties and the poor opinion of each other is illustrated by what happened later in the weekend. The child developed a rash and the father took him on Saturday evening to a hospital emergency department. He said a nurse looked at the rash and told him it was an allergic reaction to the antibiotic the child had been prescribed. The nurse told him to stop giving the child antibiotics and that there was no need to wait to see a doctor.

The mother was critical of the father for not having the child see a doctor and she doubted that he had been taken to the hospital. She said she had made inquiries at the hospital and there was no record of the child being admitted. On the father's account there probably was not any record, certainly of admission. The mother considered there had not been an allergic reaction because when the child went to the father he had a viral rash and she had referred to that in her note which indeed she had.
The child had a normal childhood illness, serious enough in that it was bronchitis which required antibiotic treatment, but which required no more than an awareness of the illness and proper care of the child. Separated parents with a reasonable relationship would have coped with the illness without difficulty. Instead it produced an unpleasant changeover incident and distrust and suspicion between the parents.
Other incidents described by the mother and then answered by the father show a similar lack of trust between the parties. In one of her affidavits the mother describes a dozen or more incidents, many with photos annexed, when she alleges the child suffered injuries or was not cared for properly in the care of the father. The mother relies on what she says she was told by the child.
The father responds describing how the child received the cuts, scrapes or bruises shown in the photographs and otherwise describing the incidents in terms in which he says he was not showing a lack of care.
A decision about how each of the incidents occurred is not necessary. The photographs appear to show cuts scrapes and bruises that an active three or four-year-old child might suffer in the ordinary course of active play. The mother does not say any of the injuries required medical treatment, and so there is no medical opinion about whether the injuries are normal for a three or four-year-old child.
A simple example of the lack of trust and cooperation between the parents is the child’s haircut. The mother had allowed his hair to grow long. The father did not like it long and without consulting the mother had his hair cut very short. The father complains that the mother had allowed the child's hair to grow very long. The mother complains that the father both had the child's hair cut short and did not consult her.
The mother and the grandmother make complaints of intimidating behaviour by the father at changeovers. Given the father’s attitude to the incident at changeover on 17 June 2011 this is possible. Messages from the mother may have annoyed him on other occasions and he may have shown that annoyance. While incidents at changeovers might illustrate something about the parents’ attitude towards the child, they are not a reason for limiting the child’s time with the father. There are means of reducing the risk of conflict, or even eliminating the risk of conflict, at changeovers.
Another of the mother's concerns is the amount of time she alleges that the child spends with the fathers’ extended family, who she claims are drug users or alcoholics. The evidence does not permit a testing of the mother's claim about members of the father’s extended family. There is nothing to suggest that the child is harmed by contact with the father’s extended family.
The fathers partner Ms S gave evidence. They met in December 2010. She described a good relationship between her and the child and she described a good relationship between the child and his father. She was present throughout weekends when a number of the incidents of injury and a lack of care alleged by the mother occurred. She supports the father’s evidence that nothing untoward has happened while the child is in his care. She says that the child does not call her Mum as apparently alleged by the mother. She impressed as sensible and calm and relaxed in her relationship with the child in her role as the father’s partner. She appears in the video of the incident on 17 June 2011. She stands back from the father and the grandmother while the changeover takes place. After the father walks away with the child Ms S. talks briefly to the grandmother and takes the pieces of paper that the grandmother has in her hand. As far as is possible to tell from the recording the father’s partner remains calm throughout.
Dr H. prepared the family report. Each party's description of the other illustrates the conflicted parental relationship. The father told Dr H. that he believed the mother was keeping him out of the child's life as much as she could and that she fabricated allegations of assault. He claimed the mother excessively micromanaged all situations where she is leaving him completely out of the child's life whenever she could.
The mother told Dr H. that there had been no domestic violence involving her within the relationship but claimed the father had been physically abusive towards the child. She said that having allowed contact between the father and the child she was worried about the child's reactions to being with his father without her being there. She claimed there were tears every time the child had to go with his father without her. She said she feels that the child thinks he is being abandoned, is probably a bit scared and is generally very confused.
Dr H. was impressed with the child, describing him as polite cheerful and friendly. He said that having spent a few minutes with him before his father’s arrival the child was able to involve Dr H. in what he was doing when he found something interesting amongst the toys not only showing it to his father but also bringing it over for him to look at. Dr H. says he has not often seen such behaviour among children in a situation that the child is presently in.
Dr H. says that the child was able to convey that he likes seeing his father but gave no indication that he wanted in any sense not to be with his mother. Dr H. said the child was willing to talk a little but not as much as he did when he was with his father. One notable feature was that the child showed a greater level of individualised activity with his father than with his mother. One thing Dr H. noted was that when talking to him the child referred to his father as Mr Lancaster, not Dad.
Dr H. noted the differences of opinion between the parents. The father considers the mother has irrational beliefs about his intentions towards the child, that he has been unjustly accused of assaulting his son and the grandmother and that the mother wishes to keep him out of the child’s life. The mother said to Dr H. that she did not want the child to spend any more time with his father and conveyed the impression that she would be pleased if the time was cut down. She feared the father does not take enough care of the child.
Dr H. assesses the relationship between the father and the child as loving, welcomed and appreciated by the child. Dr H. said that in his father's care the child has the freedom of the experiment and exploration that is essential to the development of self-confidence in any four year old child.
Dr H. describes the relationship between the mother and child as loving and welcomed by the child although Dr H. says it is doubtful if the child has the freedom of movement and experiment that is associated with his father. The mother is able to provide an environment that is predictable and child centred that is to the child's advantage.
Dr H. recommended that the child live with the mother and spend time with the father from 5.00pm Friday until commencement of kindergarten/school Tuesday in alternate weeks and in the intervening week from 5.00pm Monday until the start of kindergarten/school on Wednesday, that is six nights each fortnight.
In his discussion Dr H. said that he had a strong view that the child needs to spend more time with his father and that both parents need to recognize they have a responsibility to allow him the psychological freedom to enjoy whatever time he spends in either of his two homes. He said a possible solution was for the child to reside on a full-time shared care basis or a compromise of longer times with his father.
Dr H. said in his report a possible impediment to changing dramatically the present arrangement is that much of the published research on shared care highlights an apparent need for good communication between the parents. He says this is lacking in this case but said that neither parent had attended a Parenting After Separation Course. He said both parents asserted they wanted to see communication about the child improved.
Whether or not either parent has attended the type of course Dr H. has in mind there is little prospect of their communication improving. They asserted to Dr H. that they wanted to see improved communication but it has not happened. They did not communicate on the important question of which school the child should attend. The mother says that she believed she could choose the school. The father says he assumed that the child would attend (omitted) Primary School. His assumption was correct until in November the mother changed the enrolment to the (omitted) Primary School.. The father does not seem to have enquired which school the child was enrolled in until an exchange of correspondence between solicitors in December. The explanation is probably not disinterest on his part but rather the lack of communication between the parties.
The parties do not meet and discuss and they are unlikely to do so in the future. The mother continues to believe that the father does not care for the child properly and she will continue to send detailed notes with the child when he is spending time with his father. The father will continue to see this as an attempt by the mother to micromanage every part of the child's life and he will continue to resent it.

Best Interest Considerations

The s.60CC(2) and (3) consideration for which there is relevant evidence are the following. There is no evidence relevant to the other considerations

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child's parent

The child has a meaningful relationship with each parent. The issue under this consideration is how best to maintain and promote that meaningful relationship particularly with the father. The evidence shows a meaningful relationship with the father, but it also shows the parent’s lack of communication and distrust. The time the child spends with the father needs to promote a meaningful relationship without compromising it because of the parents’ lack of communication and distrust of each other.

The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.

The mother claims that the child has suffered injuries while in the care of the father, that he becomes ill while with the father and generally is not properly cared for by the father. These claims are dealt with earlier in these reasons. There is no need for any concern about the father's care for the child. The assessment by the Family Consultant, Mr M., after the s.11F consultation, that the mother is overprotective and that the child shows no fear of the father, is an accurate assessment. The excellent relationship between father and son observed by Dr H., and the child's clear enjoyment of his father's company shows that the child has no fear of suffering any harm, physical or psychological, while with his father.

Additional Considerations

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

Dr H. says that the child was able to convey that he liked seeing his father but that he gave no indication that he wanted in any sense not to be with his mother. Bearing in mind the child was four years and three months when Dr H. saw him this evidence can be interpreted as showing that the child would enjoy additional time with his father but not such that it interfered with his relationship with his mother.

The nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child)

The child's relationship with each parent, his maternal grandmother and the father's partner are good and appropriate relationships. His mother is his primary carer, particularly since separation in August 2010. He has a strong relationship with his father, a relationship that he enjoys and one which Dr H. observed allows him to explore and develop in a way appropriate to his age.
He lives with his mother and maternal grandmother and has a good relationship with his maternal grandmother. I have already stated my conclusion that the father's partner understands her role and that her relationship with the child is appropriate to that role.
The child sees his father's family, a source of complaint by the mother. She says they are drug users or alcoholics. The father disputes this allegation. The child sees the father's family when he is staying with the father. Nothing in the evidence suggests the child is suffering any harm through seeing members of the father's family even if the mother's allegations are correct, there is no need to consider any restrictions on the child's time with the father for this reason.

The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

The mother’s poor opinion of the father, and in particular of his capacity to provide for the needs of the child is clear. She told Mr M. her preference was that the child did not see the father. She told Dr H. that having allowed contact between the father and child she was worried about the child's reactions to being with his father without her being there. She considered the current time more than enough. She wants to have sole responsibility for decision making concerning the child. She considered that she alone should make the decision about which school the child should attend. Dr H. noted that the child called his father Mr Lancaster not Dad, probably reflecting that the mother referred to the father as Mr Lancaster and not Dad when talking to the child.
The father has a poor opinion of the mother, but since he is not the principal carer this is less likely to affect the relationship between the child and the mother.
While the mother has the attitudes described she has always complied with orders.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The child presented to Dr H. as cheerful and friendly and interested in things around him. He has secure and appropriate attachments with both parents. He will adjust to some change but too much may be undesirable.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

The parents live only a few minutes from each other and so there is no practical difficulty or expense involved in the child spending time and communicating with each parent.

The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

The wife claims that the father does not care for the child, not supervising nor feeding him properly. I am satisfied this is not the case. Each parent can and does care for the child properly.

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

The child is nearly 5 and is happy and developing well. This suggests that he is secure in the company and care of each parent.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Both parents love the child. Each takes their responsibilities seriously. The mother's criticisms of the father's attitude to the child have not been established. The father's criticisms of the mother’s micromanaging the child's life are a criticism of her attitude to the child and the responsibilities of parenthood.

Any family violence involving the child or a member of the child's family

The mother claims that in August 2010 during the holiday at (omitted) the father mistreated the child and she claims that on another occasion the child told her that the father had struck him. The father denies both the events. As the mother sees the worst in any event involving the child of the father. It is quite possible that at (omitted) the child, while being dressed, was engaging in some normal oppositional or uncooperative behaviour and the father displayed some frustration. Given the mother’s attitude to the father’s relationship with the child, even prior to separation, she might subconsciously exaggerate a description of what she had seen. To some extent this is speculation, but the child made no complaint to Dr H. about the father's behaviour and the child's happy and relaxed relationship with the father suggests no ill-treatment. I do not find there was any family violence committed by the father or any abuse of the child.
There were two occasions after separation when the father continually rang the front doorbell at the paternal grandmother's home and rang the telephone. The extent to which he did this is disputed. His actions were disturbing for the mother, the maternal grandmother and probably the child but I am not satisfied that the circumstances meet the definition of family violence in s.4 of the Family Law Act 1975 (Cth) that is that the behaviour of the father caused any of those inside the house to fear for, or reasonably to be apprehensive about, his or her personal well being or safety.

Any family violence order that applies to the child or a member of the child's family, if the order is a final order or the making of the order was contested by a person

There is no relevant family violence order.

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 lack of communication and conflict between the parents is relevant to the issue of an order for parental responsibility. That is discussed later in these reasons.
Section 60CC(4) contains considerations which are the extent to which each parent has taken the opportunity to participate in decision making about the child and spend time and communicate with the child, and has facilitated the other parent doing the same. The evidence relevant to this consideration has already been dealt with.

Parental responsibility

The presumption of equal shared parental responsibility contained in s.65DA has not been rebutted by reasonable grounds to believe there has been family violence or abuse of the child. There remains the consideration of whether it would not be in the child's best interests to make an order for equal shared parental responsibility.
In Mallahan & Mallahan [2010] FamCA 631 Murphy J discusses the provisions of the Family Law Act concerning parental responsibility [41]-[57]. Parents of children have parental responsibility for each of their children (s.61C). Section 61B provides that “Parental responsibility in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

Parental responsibility can be altered by order of the court but it does not remove or diminish any aspect of the responsibility unless it does so expressly. (s.61D(1) and (2)).
Murphy J refers to the sections of the act which describe the effect of sharing parental responsibility. He says at [46] and [47]:
46. The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
47. Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order (s 65DAE(2)).
His Honour refers to the perhaps drastic consequences of making an order for sole parental responsibility, that is the exclusion of one parent from any decision-making and responsibility role for major long-term issues. He says at [52]-[54]:
52. A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
53. The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the “duties, powers, responsibilities and authority over their child otherwise conferred by law”.
54. If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS [1999] HCA 26; (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).
Given that parental responsibility requires the parties to engage actively with each other in consulting and making decisions about major long-term matters the inability of parents to communicate and discuss is relevant in determining whether an order for equal shared parental responsibility is in the child's best interests. In Chappell & Chappell [2008] FamCAFC 143 [2008] FLC 93-382 the Full Court said at [75]:
In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
The present case is one where the Full Court's remarks could be applied. Countervailing considerations arise out of the mother’s attitude to be father’s participation in the child's life. She has said in the past that she would prefer the child spent no time with the father. She considers that the father should have no role in selecting the child's school. An order for equal shared parental responsibility is likely to reinforce the mother's attitude that the father should have a limited role in the child's life. The best interest considerations of the child's relationship with the father and the willingness and ability of the mother to promote the child's relationship with the father are relevant.
An order for equal shared parental responsibility carries with it the risk of further proceedings, but the greater risk is that the mother might use the absence of such an order, and particularly an order that she have sole parental responsibility, to undermine the relationship between the child and the father. For these reasons the presumption of equal shared parental responsibility is not rebutted because it would not be in the child's best interest to make such an order. The balance of best interest considerations means that there should be an order for equal shared parental responsibility.

Reasonable practicability

Section 65DAA(5) describes these considerations for determining what is reasonably practicable.
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live close to each other so the first consideration is satisfied. The next two considerations are not. The lack of communication between the parties and their distrust of each other has been described earlier in his reasons. The parents have little capacity to cooperate about and communicate on the numerous day to day incidents and arrangements involved in the life of a school age child, particularly one who has just commenced school. There is very little chance that their capacity to cooperate and communicate will improve. Dr H. referred to the need for communication, and he obviously hoped that the parents could improve their communication. The ability to communicate is not there.
Should the child be living in an equal or close to equal time arrangement the parents’ inability to communicate and implement the arrangement and resolve difficulties would have an adverse impact on the child. It would be an instability in the child’s living arrangements which could adversely affect his current secure attachment with each parent.

Conclusion on time

Equal time or close to it is not reasonably practicable and not in the child's best interests. It would not be workable. The child's relationship with his father and his views, and the need to promote the child's relationship with the father in the face of the mother’s negative attitude to the father means that the child should be spending more time with the father. This can be achieved by having the child spend alternate weekends with the father from Friday night to Monday morning, one overnight in the intermediate week and half school holidays.
The conflict which has occurred at changeovers should be avoided as much as possible. This can be done by having changeovers as much as possible at school. The mother proposes that time should commence at 5.00pm on Fridays. She says this is needed to enable the child to get ready for his time with his father. This is not necessary. In addition, having the father collect the child from school and then deliver him to school gives the father the opportunity to be involved in the child's life at school, and so better meets the requirements of substantial and significant time.
The mother proposes a gradual increase. There is no need. The increase is two nights which are not together. The child's good relationship with his father shows that he will be able to cope with a week in school term holidays and half the summer school holidays. The parties agree that the child spend alternate Christmas Eves and Christmas Days with each parent and otherwise the orders will contain provision for the usual special days.

School

On the first day of the hearing I made an interim order that the child should attend (omitted) Primary School. The child was to commence school less than 48 hours after the decision was made. I gave reasons at the time for the interim decision. A significant factor in the reasons was that I considered that the child would be expecting to attend (omitted) Primary School. He was spending the majority of time with his mother and he had attended the orientation day at (omitted) Primary School well after he had attended two of the induction days at (omitted) Primary School.
The fact that the child is now attending (omitted) Primary School is the deciding factor in determining a final order. It would be disruptive for the child and unrealistic to consider a change of school now. The decision might have been different if the question of schooling was decided some months prior to the commencement of school, but the decision must be made in light of the circumstances which exist now.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Phipps FM

Date: 13 March 2012