Laracy and Laracy

[2013] FamCA 61

FAMILY COURT OF AUSTRALIA

LARACY & LARACY [2013] FamCA 61

FAMILY LAW – CHILDREN – where the father seeks equal time – where the mother seeks the child live with her and spend substantial and significant time with the father – where the parties have communication difficulties – where it was held equal time is not reasonably practicable or in the child’s best interests

Family Law Act 1975 (Cth)

APPLICANT: Mr Laracy

RESPONDENT: Ms Laracy

FILE NUMBER: SYC 855 of 2011

DATE DELIVERED: 28 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 19 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Somerville Legal

Orders

1. The parties have equal shared parental responsibility for the child S, born … January 2007 (“the child”).

2. Each party have the sole day to day responsibility for the care and welfare of the child while she is in their care.

3. The child live with the Father as follows, or as agreed in writing between the parties:

   3.1.From the date of these Orders;

   3.1.1.During the school term:

   3.1.1.1.From the conclusion of school on the first Thursday of a two week period to the commencement of school on the following Monday, or 5pm in the event that Monday is a Public Holiday, and each alternate week thereafter.

   3.1.1.2.From the conclusion of school on the second Thursday of a two week period to the commencement of school on the next day, Friday, or 5pm in the event that Friday is a Public Holiday, and each alternate week thereafter.

   3.1.1.3.The alternate weekend cycle will continue from one school term to the next as if the school holidays had not intervened.

   3.1.2.Subject to order 3.1.2.2.2, for one half of the school holiday periods by agreement and in the absence of agreement as follows:

   3.1.2.1.For one half of all midterm school holiday periods, being the first half in even numbered year thereafter and the second half in 2013 and each odd numbered year thereafter.

   3.1.2.2.Subject to order 3.3 for the Christmas school holiday period as follows:

   3.1.2.2.1.Each alternate week, commencing from the conclusion of the school year in each even numbered year; and

   3.1.2.2.2.Each alternate week commencing the second week of the final school holidays and each odd numbered year thereafter.

   3.2.For the purpose of order 3.1.2 the school holidays shall commence at the conclusion of school on the last day of school term and concludes at 7pm on the Sunday before the commencement of the next school term.

   3.3.In the event that either parent wishes to take the child on an extended holiday during the Christmas school holiday period (“an extended holiday”) , the following shall occur;

   3.3.1.An extended holiday may not be for a period greater than 14 days;

   3.3.2.The travelling parent shall provide to the other parent not less than 3 months’ notice of their intention to take the child on an extended holiday;

   3.3.3.The father or the mother shall not take the child on an extended holiday until after the child turns 9 years old.

   3.4.For the purpose of Order 3, Order 3.1.2.2. shall be suspended during an extended holiday but the child shall continue to spend one half of the school holidays with each parent;

   3.5.On the child’s birthday, in the event that the child is not already in the father’s care, from 9:00am to 4:00pm in even numbered years and each alternate year thereafter;

   3.6.From 6pm on the Saturday immediately preceding Father’s Day to 9.00am on the following Monday;

   3.7.Such further times as the parties may agree, from time to time.

4. The child live with the mother at all other times including:

   4.1.On the child’s birthday, in the event that the child is not already in the mother’s care, from 9:00am to 4:00pm in odd numbered years and each alternate year thereafter

   4.2.From 6pm on the Saturday immediately preceding Mother’s Day to 9.00am on the following Monday;

   4.3.Such further times as the parties may agree, from time to time.

5. In the event that either of the parties travel interstate with the child, the travelling party is to provide the other party with a copy of the itinerary or in the alternative, particulars of travel and accommodation not less than 48 hours prior to the intended travel date.

6. Each party facilitate the child communicating with the other parent by telephone as follows:

   6.1.At reasonable times on at least two occasions when the child is spending time with either parent during the school holiday periods or the extended holiday period pursuant to these orders; and

   6.2.Whilst the child is in the care of the other parent, or at such other reasonable times as the child may request with the party seeking such communication and that the other party shall facilitate such communication.

7. Unless otherwise provided for in these orders, that the father be restrained by injunction from entering or remaining in the former matrimonial home situated at B Street, Suburb C, New South Wales.

8. The parties be restrained by injunction from denigrating the other party or members of the other party’s family to the child or in the presence of the child.

9. Both parties inform the other party within 24 hours or as soon as practical of any emergency relating to the child and provide all necessary authority for that party to attend on the emergency.

10. Both parties are to ensure the other party is informed of:

    10.1.All medical issues or illnesses suffered by the child while she is in their respective care, including:

    10.1.1.Any visits to doctors or hospital;

    10.1.2.Any medication that has been prescribed to the child and/or treatment regime;

    10.1.3.Any school or religious functions the child is to attend other than the normal routine;

    10.1.4.Any change of residency greater than a radius of 20 kilometres; and

    10.1.5.Any other matters relevant to the child’s care.

11. Both parties will be entitled to attend all events involving the child including but not limited to:

    11.1.sporting fixtures;

    11.2.Extra-curricular activities that allow for parental attendance; and

    11.3.School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent/teacher interviews, canteen duties and social functions and the parent who has the child in their care on the day of such an activity will be responsible for their day to day care at such an event and the child’s transportation to and from that event unless otherwise agreed between the parties.

12. Both parties are to keep the other party advised of the current residential address and current contact telephone number (including both land line and mobile telephone numbers as applicable) and advise the other party within 24 hours of such change.

13. If changeover does not happen at school, the parent with the care of the child is to deliver the child to the other party’s usual residence or as agreed between the parties.

14. The child not be removed from attending her current school unless by mutual agreement.

15. The father be restrained from recording or photographing the child with or without clothes in inappropriate positions.

16. Within 24 hours the father destroy all electronic or paper copies of the photographs of the child being exhibit 8 or any other photographs of their type.

17. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Laracy & Laracy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 855 of 2011

Mr Laracy

Applicant

And

Ms Laracy

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This case has a long and hard fought history. The concerns in this case that arose from the Family Consultant’s notification to the Department of Family and Community Services have been resolved. In the end the parties were also able to resolve most other outstanding issues.  There is one remaining issue upon which the parents have not been able to agree. The child S (“the child”) is spending five nights a fortnight with her father. The mother and the Family Consultant say that that is the limit of the time the child should spend with her father in her best interests at the current time. The father says that she should have what he calls the advantage of spending equal time with both her parents.

2. The focus of the evidence in this hearing has been around the current and future capacity of the parents to communicate with each other and resolve difficulties that might arise in implementing an arrangement of the kind suggested by the father.

3. The father fundamentally argues that the mother’s position is illogical in that she asserts that it is in the child’s best interests for him to have five nights a fortnight and it is reasonably practicable for that to happen, but she simultaneously asserts that seven nights a fortnight are not reasonably practicable and not in the child’s best interests.  On the face of it there is some force in that argument.

4. The dynamics between the parties are entrenched and complex. The history of their inability to agree has longevity and will not easily be changed.

APPLICATIONS

1. Both parties seek equal shared parental responsibility.

2. The father seeks equal time. He seeks the child live week about with the parties during school term. In his further amended initiating application filed 18 July 2011, the father sought that the child live with each parent for half the Christmas school holidays. He did not maintain that position during the hearing, and sought for the child to spend all school holidays with each parent in a week about arrangement (see exhibit 2). The mother seeks to maintain the current arrangement that the child spend 5 nights a fortnight with her father; four nights on one week, one night on the other week. At the end of the hearing, it was this issue which required determination.

3. Exhibit 1 contains other orders sought by the mother. The father agrees to orders being made in the terms of paragraphs 1, 2, 3.1.2, 3.5, 3.6, 3.7, 4, 5, 6, 7, 8, 9, 10 as amended, 11, 12, 13 as amended and 14.  In addition, Exhibit 10 contains two orders sought by the mother which the father did not oppose.

4. At the commencement of the hearing, there was a discussion about how school holidays would be defined and how they would be integrated with the normal pattern of weekend time that the child has with her parents during school term. It was agreed that if the mother’s proposal was successful, the weekends at the commencement of school holidays and at the end of school holidays would form part of the school holidays which were divided between the parties. It was further agreed that any alternate weekend cycle for the father’s time with the child on weekends would continue as if the school holidays had not interrupted that cycle. On the father’s proposal, the week about arrangement during school term would continue during school holidays. The one exception was contained in order 3.3, where once the child is 9, during Christmas school holidays, both parties agree that a parent can give notice that the child would be with that parent for 14 days and it was also agreed in discussions that there would have to be a compensatory order so that the other parent would have 14 days in that same Christmas holiday to maintain equality in the time the child spends with both parents during those holidays.

DOCUMENTS RELIED UPON

1. On 19 October 2012 I made an order that the parties file an affidavit setting out all the evidence they wished to rely upon in relation to the following issues:

   9.1.What post separation parenting programs they have attended and the benefit, if any, they believe they have received from those programs;

   9.2.The history of communication between the parties since separation, including evidence about the current state of that communication;

   9.3.Evidence about any other event or matter which is relevant to the ability of the parties to communicate with one another.

2. The applicant mother relied on:

   10.1.Mother’s affidavit sworn 7 December 2012

3. The respondent father relied on:

   11.1.Father’s affidavit sworn 7 December 2012

4. Other materials relied upon:

   12.1.Family Report written by Ms K dated 3 September 2012

SHORT HISTORY

1. The father was born in 1962. He is currently aged 50 years.

2. The mother was born in 1969. She is currently aged 43 years.

3. The parties married in August 2000.

4. The parties’ child S was born in January 2007. She is currently aged 6.

5. The parties separated 15 August 2009.

CREDIT

1. Both parties attempted to give their honest recollections as to what had happened in the past. Both parties on occasions were directed to specific words in their written evidence which the other asserted were not accurate. On most occasions when this happened, the parent who had been challenged about specific words in their affidavit was prepared to accept that specific words were an inaccurate representation of what had happened.  

2. So far as it is necessary, any decision about whose version of events I should believe will be determined on the basis of concessions made by one or the other of the parents and other objective evidence or upon the basis of which version is more inherently likely.

DETAILED CHRONOLOGY

1. The father was born in 1962. He is currently aged 50 years.

2. The mother was born in 1969. She is currently aged 43 years.

3. The parties married in August 2000.

4. The parties’ child S was born in January 2007. She is currently aged 6.

5. The parties separated 15 August 2009.

6. On 9 August 2011, the father returned the child to the mother. The child had a balloon on which the father had drawn a picture of a clown and written the words “His will not mine, reaping and sowing”. As a result of this, the mother suspended overnight time between the father and the child.

7. On 16 August 2011, the mother applied for an Apprehended Domestic Violence Order against the father. The order was not made. 

8. On 26 September 2011, Fowler J made orders by consent that the parties have equal shared parental responsibility and that the child live with the mother. His Honour ordered that the child spend time with the father on a graduated basis. The child currently spends 5 nights per fortnight with her father. Although his Honour made what appear to be final parenting orders, they were intended by the parties to be interim orders (as I noted on 17 February 2012).

9. In October 2011, the mother alleges that during a changeover at the father’s home, the father grabbed her and twisted her arm. The mother says the father raised his other hand with a clenched fist as if to punch her. The child was present. I discuss this incident below.

10. In October and November 2011, the parties both attended Triple P parenting program.

11. On 26 March 2012, I made consent orders finalising the parties’ property dispute.

12. In October 2012, the child attended upon a Paediatric Occupational Therapist. The mother annexes to her affidavit a report dated 9 October 2012 from Occupational Therapist, Ms W. Ms W opined the child has “poor upper limb mechanics, including low muscle tone and limited finger isolation.” She recommended the child attend weekly occupational therapy sessions, and swimming and jazz ballet classes.

13. In October 2012, the child also attended upon an optometrist, Mr F. He opined that the child had difficulty with “tracking and… spatial organisation – visual manipulation, spatial integration and laterality.” He recommended the child commence a “limited vision therapy programme”.

PARTICULAR ISSUES

The Family Consultant’s 67ZA notification

1. The child responsive program memorandum dated 1 August 2011 had the following information:

   [The mother] is adamant that she has information which supports her concerns that [the father] has acted inappropriately with [the child]. She further asserts that she told him his actions were not appropriate, via email, and that he responded that “[The child] asked me to do it”, while also apparently stating that if [the mother] did not want him to do this he would not do so.

2. The section 67ZA notification completed by the Family Consultant on 1 August 2011 set out the following:

   Circumstances giving rise to this notification:

   On 1 August during a Meeting Intake and Assessment for the Family Court of Australia Child Responsive program the mother advised that “several months ago” the child had told her that her father had inserted his fingers in her vagina.  The mother said that for some time the child has been suffering from either thrush or genital herpes (tests, it seems have not clearly identified which).  The mother said that after this disclosure she had emailed the father informing him that this was not appropriate.  The mother asserts that the father had responded by email that the child had asked him to do this, but said he would not do it again.

3. In the family report dated 3 September 2012 at paragraph 15 the Family Consultant says the following:

   15. [The mother] (aged 43 years) presents as a caring and protective parent. Despite the Department of Family [and] Community Services (hereinafter referred to as “the Department”) not having taken any action as a result of the writer’s report made at the time of the CPIA [Children and Parents Issues Assessment], [the mother] clearly continues to have concerns about [the father’s] parenting of [the child]. Unfortunately, [the mother] was not prepared to articulate her concerns as, according to her, she had been cautioned not to by her lawyer. She also said that she felt that the Court perceived that she ought not to have voiced her concerns in the past. [The mother] said that it would be best if [the child] was the one to tell the writer about those issues about which [the mother] has concerns. (Nothing [the child] told the writer provided any such information).

4. The father agreed that the mother had contacted him raising her concerns about what the child said to her and that he had indicated to the mother that what the child had said may have arisen out of his normal practice by which he put prescribed medication on areas of the child’s body that are affected by eczema. It was not controversial that the child has, over a number of years, had a significant difficulty with eczema and has been prescribed a number of ointments and creams to deal with the problem. The Department of Family and Community Services (“DoCS”) records were not tendered before the court. DoCS did not contact the father about the allegation. I was informed that DoCS had contacted the child’s general practitioner and had also taken a statement from the mother. The mother made it clear that she did not wish to press any assertion that she might have previously made to the Family Consultant that the father had acted inappropriately with the child and I accept that that shows good judgment. 

Eczema and the naked photos of the child (Exhibit 8)

1. The mother says the father has not been diligent in tending to the child’s medical needs, particularly her eczema.

2. During the father’s cross examination of the mother, the father tendered two pages which contained images of the child which the father had taken on 17 February 2013 (two days prior to the hearing). The father indicated that the child had just showered and was lying on her bed. He said that he told the child that he wanted to take photographs of her so that he could show mummy that she did not have eczema. The father then proceeded to take a number of photos of the child in various poses. In the photographs displaying her inner thighs and genital area, the child was wearing underpants. In some of the other photographs (not showing her genital area) she is totally nude.

1. The father said that he had taken these photographs in the context of the pressure of the upcoming case and in a desire to present to the court information which contradicted the mother’s assertion that he had not properly attended to the child’s eczema. The father however lacked any insight into the inappropriate nature of what he had done and the reaction that the mother might have when these photographs were produced. The father has agreed to delete the digital images from his mobile phone and his home computer and has agreed to an order to that effect. The father has also agreed to an order not to carry out such an exercise again in circumstances where in oral evidence he had first indicated that he may well do that again if the mother persists with her accusations. The father said he would hope now that he has done this that the mother would not persist with her allegations. The father seemed to feel it was justifiable to do what he did given that it is his case that the mother had manufactured evidence against him for this case. What the father did showed an unfortunate lack of judgment.

Communication between the parties

1. One of the main issues in this case is the parties’ ability to communicate effectively.

2. The parties are now up to their fifth communication book. The mother asserted that the father retained one of the communication books. The father denied that he did so. He said he misplaced it. It turned out however that having misplaced it he found it again and then retained it.

3. The mother annexes to her affidavit photocopies of the pages of one of the parties’ communication book. Two of the parties’ communication books became exhibit 9. The parties generally use the books to communicate regarding the child’s various medical issues, and to request the other party return various items of clothing.

4. It appears the book is used to keep account of what the child has taken or worn to each house. Both parties are territorial and accusatory regarding items that are not returned, or returned late.

5. The mother writes “I am not prepared to loan you the one [a raincoat] I purchased as it may not be returned. I will not waste my time following you up for it.”

6. I note one entry from the father says “PLEASE RETURN [some clothing items] ON NEXT ROUND, OTHERWISE IT WILL BE MADE CLEAR TO [MS K] & THE COURT SYSTEM THAT YOU ARE PURPOSELY TRYING TO BE DIFFICULT.”

7. A further entry from the father seems to be intended to make a point. He writes “I was rushing [the child] to get to bed tonight & mentioned that you were concerned that she was tired after returning from here. She replied, ‘No I am not. I’m never tired after being with you Dad. Mum’s just trying to trick you.’” I discuss this issue in further detail below.

8. Despite the parties’ use of communication books, the father complains the mother does not consult with him about important decisions for the child, for example in relation to the child commencing jazz ballet and swimming classes. The mother says that that assertion by the father is demonstrative of him not engaging with her in the decision making process. There is in evidence a group of emails in relation to the mother’s desire to involve the child in jazz ballet (exhibit 4). On 19 July 2012, the mother emailed the father saying:

   After speaking to a friend who is an Occupational Therapist about [the child’s] low muscle tone, she suggested that things that would help [the child’s] core strength and muscle tone would be Jazz Ballet or Hip Hop. We were offered a free lesson this week of Jazz Ballet and [the child] loved it. Are you willing to support [the child] going to Jazz Ballet?

   It is on a Monday at [Suburb C] Primary School 315pm – 4pm.

   The cost is $115 for 10 lessons.

   The uniform consists of:

   Ballet shoes $32.95

   Shorts and top $51

   Stockings ?

9. On 14 August 2012, the father replied via email saying, inter alia:

   … You asked me to contribute half of the costs for [the child’s] Jazz/Ballet classes, however [the child] tells me that she has already commenced. She was doing moves and “kicking her bottom” on her first visit after you asked me about it. If you want me to contribute in future I would appreciate forewarning and possibly discussion.

10. These emails generally do not support the father’s assertion that the mother had not included him in the decision about jazz ballet. The father having looked at the emails conceded that as early as July 2012 the mother had asked him about the child’s involvement in jazz ballet. The father conceded that although he promised to pay half the fees, he had not nor had he paid for any of the other costs associated with this activity such as costumes.  

The inability of the parents to organise a school uniform

1. The child did not go to school on Friday 17 August 2012. On the father’s version she did not go to school on that day because he did not have a school uniform for her. On the mother’s version, the father told the mother that “the principal sent her home because she did not have a uniform”. An email the father sent to the mother on Saturday 18 August 2012 said “I took [the child] to school in house-clothes with the intention of her changing into her school clothes before school, however, when we arrived there was nothing in her chair bag, nor did the teacher know anything. I went to the principals [sic] office and it was agreed that [the child] shouldn’t be at school without uniform.”

2. The circumstances leading up to the Friday morning where the child did not have a school uniform to go to school was that on the previous Thursday the mother had left a school uniform for the child at her school for collection by the father. The uniform had been put in the child’s “chair bag” by the mother. The father asserted this was an unusual practice for the parties.

3. As part of annexure I to the mother’s affidavit, there is a copy of an email that the mother sent to the father on Monday 13 August 2012. The text of that email is:

   Hi [the father’s first name], I just dropped [the child] off to school this morning and found her school clothes I left for you on Thursday still there. They were in a white plastic bag with “[The father’s first name]” on it. Why didn’t you pick them up? Is this the reason that you didn’t reply to my text message and email asking you to return [the child’s] good clothes she wore on Thursday for [the school’s] 50^th Birthday Celebration? If so please pick up [the child’s] school clothes (they are in her chair bag) and return what she wore last Thursday to her school bag today or tomorrow.

4. That email was sent at 10.02am. The father works from home and I infer this email was his work email. It is unlikely in my view that he would not have seen that email from the mother. It was not suggested to the mother that she has fabricated the email.

5. The father’s evidence is that he expected the school uniform to be in [the child’s] bag when he picked [the child] up on Thursday after school. When there was no school uniform in the bag he said he phoned the mother and left a message on her mobile phone but never got a return call. That evening at 8:20pm, the mother emailed the father and said “[The father’s first name], Re emailed for your reference” and attached the email she had sent to the father on Monday 13 August 2012.  The mother conceded that on the morning of Thursday 16 August 2012 when she dropped the child off to school, she took the clothes from the child’s chair bag that had been there for a week because she did “not [want] them left at school for another weekend.”

6. The father originally asserted that there were texts between the parties on that Thursday afternoon and the mother promised to bring a school uniform over but she breached that promise. It turned out however that the text messages the father was referring to were texts that took place between the parties on the next Sunday afternoon. Notwithstanding the father’s assertion that he did not look at his emails on weekends, there is annexed to the mother’s affidavit copies of emails between the parties on the Saturday and Sunday.

7. Annexure I to the mother’s affidavit also includes an email from the mother to the father at 3:23pm on Sunday 19 August 2012. That email says, inter alia:

   I will bring clothes to [Suburb D] now and will exchange the above items for your one set of school clothes and one set of sports clothes… I am happy to meet you at 345pm. Waiting for your prompt reply…

   Although the mother gave oral evidence that she would not have made such an agreement, when presented with Annexure I she conceded that she must have made this agreement. She could not recall why she did not drop off the child’s school clothes to the father on the Sunday afternoon. The mother thought there may have been further communication but neither party had properly pleaded the full set of communication around this incident.

8. The father explicitly asserted that he thought that this was all a setup by the mother so that she could say to the Family Consultant at the interviews that were shortly to happen that there was a breakdown of communication. Indeed, the family report writer made such a comment. At paragraph 34 of her report the Family Consultant under the heading “Evaluations” says:

   It is concerning that the parents, at this stage, still have not developed an ability to co-operate around issues which are of particular importance to a child, for example, ensuring that [the child] attends school in her appropriate uniform. For [the child], what would have mattered was knowing that her parents could not sort out what should have been a minor problem.

9. The child had to endure the embarrassment of not being able to attend school on Friday and going to school on the Monday in mufti clothes rather than her school uniform.

10. I am unable to make a final determination as to which parent was more at fault. I do not however accept the father’s assertion that this was a deliberate setup by the mother. It was in fact a demonstration of the total inability of the parties to organise basic logistics in a way so as not to embarrass the child. 

THE APPROACH IN CHILDREN’S CASES

1. The objects of Part VII Family Law Act 1975 (Cth) (“FLA”) are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and  

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children

2. The principles underlying those objects (unless contrary to a child’s best interests) are:

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA FLA provides that when 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.

4. The parties invite me, by consent, to make an order for equal shared parental responsibility. Given that they have both asked me to do so I will. The fact that I propose to make that order enlivens s 65DAA(1) FLA. That section provides that the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or include a provision in the order) for the child to spend equal time with each of the parents.

5. I pause to note that s 65DAA(2) FLA provides a similar provision in the event that an equal time order is not made, which provision applies to the child spending substantial and significant time with each parent. The mother’s proposal provides for substantial and significant time and consequently the only matters to consider are those referred to in s 65DAA(1).

6. When considering what is in the child’s best interests, the paramountcy principle applies and the matters referred to in s 60CC FLA need to be taken into consideration.

7. When considering what is reasonably practicable, s 65DAA(5) FLA provides that the court must have regard to:

   (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.

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)

1. The father accepts that the child has a meaningful relationship with her mother and in fact says at the commencement of his affidavit:

   Her mother, [Ms Laracy] is an excellent mother. She cannot be faulted in her contribution to raising [the child] since birth.

2. The child enjoys a meaningful relationship with her father.

3. Even on the mother’s proposal, the child will have sufficient time to maintain a meaningful relationship with her father.

The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

1. There was only one significant incident of family violence reported and in the end the parties were not all that far apart about what had happened on that day.

2. There was an argument over a washing basket which the mother sought to remove from the father’s residence (saying that it was her washing basket). The incident took place within the child’s observation.     

3. The mother’s evidence initially was:

   28.In or about October 2011, I attended [the father’s] home at [Suburb D] to collect [the child]. I placed [the child] in the car and observed that [the father] had some of my possessions he had removed from my home without my knowledge or consent. One was my washing basket which was easily accessible in his garage. I picked up my washing basket and moved with it towards my car. [The father] approached me, grabbed my arm and twisted it behind my back. In doing so he hurt my arm. He then raised his other hand and with a clenched fist he motioned to punch me. I was frozen and stood still. This took place in [the child’s] presence. [The child] mentioned this incident to [Ms K] and it is reported at paragraph 24 of the Family Report.

4. In answering questions, the mother agreed that the words “grabbed my arm” were inaccurate. She said that what had actually happened was the father approached her and attempted to take the basket from her. They both held on to either end of the basket with tenacity. In the process of them trying to wrestle the basket from the other, the mother’s hand and arm which was holding the basket, was twisted up behind her back. At the same time, the father raised his free arm, swinging it backwards and threatening to hit the mother. The father agrees that he did this. The father agrees that the mother would have been fearful that he was about to strike her. The parties disagree as to whether or not he had an open hand or a closed fist when he did this. It matters little. I find that the father threatened to hit the mother on this occasion and that she was fearful as a result. The father says that this matter was raised in the Magistrates Court in the context of an AVO proceeding brought on behalf of the mother and that she was unsuccessful in obtaining an AVO based on this incident. I do not have a copy of the transcript of the evidence or the Magistrate’s reasons. The concessions made by the father however in evidence before me make it clear that this was an incident where the father did threaten the mother physically. The father submitted that the incident had to be looked at in the overall context of the mother coming upon his property and attempting to take an item from his property. It was an incident however that does the father no credit. The child saw this incident between her parents (and in fact commented on it to the Family Consultant) and I infer it was not a positive experience for her.

5. I am prepared to accept that this incident is not typical of any pattern of physical family violence between the parties.

The additional considerations

The child’s views (s60CC(3)(a))

1. The child is 6 years old.

2. The father conceded that he has canvassed the child’s views in conversations with the child. An example of that is contained in paragraph 29 of the father’s affidavit which is in the following terms:

   Monday morning, 3^rd September 2012, I was driving [the child] to school in the [sic] after our 4 nights together. She was playing with her soft toy, “[E]” ….Out of the blue she says, “[E] says he wants to stays [sic] with Daddy more”. The statement caught me by surprise! I replied, “Oh, why didn’t you tell [Ms K] that?” I didn’t have to explain who [Ms K] was because she responded straight away with, “I didn’t want to tell her that”.

   I reported this to [Ms K’s] office (see annexure E), however, was advised by her office that it was too late, as the report had already been completed.”

3. The father’s suggestion to the child as to what she should say to the Family Consultant was inappropriate. The father was unable to explain why he would have said to the child “Oh, why didn’t you tell [Ms K] that” when he had not yet received Ms K’s report to see what the child had said to Ms K.  

4. The Family Consultant gave evidence that the views of a child of this child’s age should not be given a great deal of weight and I accept that opinion of the Family Consultant. I have no clear cut evidence that the child has any view one way or the other about what she wants to have happen.

Relationships of the children with the parents and other persons (s60CC(3)(b))

1. The Family Consultant observed the child to be “relaxed” around both her parents. She interacted with them both in a “playful and affectionate manner”.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))

1. Except for those matters discussed above, the parties have generally demonstrated a willingness and ability to encourage the child’s relationship with the other parent.

Likely effect of any change in the children’s circumstances (s60CC(3)(d))

1. The father’s proposal does have the advantage of the child only moving between her parents on two occasions a fortnight (she is currently moving between her parents on 4 occasions a fortnight during school term). That however is not a weighty matter. The bigger change for the child would be that she would be away from her mother a lot longer during school term than she currently is or has ever been and would not see her mother at all for seven days during school term. The child has only experienced that arrangement in school holidays.

Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))

1. The parties live in close proximity.

The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))

1. The mother says the father does not follow the child’s treatment plan for her eczema. She deposes that “[The child’s] eczema flares up when she spends time with [the father]”.

2. The mother generally asserts that the father does not properly look after the child’s eczema. The parties’ communication books (exhibit 9) contain numerous entries written by the mother regarding the child’s eczema and insisting the father adhere to the treatment plan.

3. I accept the mother’s evidence that on occasions during the winter of 2012, the child has returned after time with her father with eczema in her hair and I am less than confident the father was diligently treating the child with the appropriate remedial washes, ointments and shampoos. That may have improved in recent times given the focus that has come upon this issue as a result of the mother’s complaint in her December affidavit. It did unfortunately lead to the father doing what he did in relation to photographing the child’s body on 17 February 2012.

4. The mother also complains that he does not return items of the child’s clothing, and does not adhere to a bedtime schedule similar to the one that exists in her household.

The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))

1. Not relevant.

If the children are Aboriginal or Torres Strait Islander (s60CC(3)(h))

1. Not applicable.

The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))

1. Pursuant to interim orders, both parties have participated in the Triple P Positive Parenting Program. The father has also attended Keeping Kids in Mind. He deposes that post separation he attended joint sessions with the mother at Relationships Australia for approximately 7 months and has undertaken numerous courses conducted through his church.

The child’s appointment with the occupational therapist

1. The mother at paragraph 45 of her affidavit says as follows:

   45.I made an appointment for [the child] to attend [Ms W] of [a paediatric occupational therapy practice] at [Suburb G] on 9 October 2012. On the recommendation of [Ms K] to involve [the father] in this process, I informed him by email of this appointment and he attended with me on 9 October 2012. At the appointment [the father] said, in my presence to [Ms W] words to the effect: “This is a load of rubbish. [The child] needs to get outside and play like boys. This is how you generate money for your business. She did have a problem previously but that is all sorted now”.

2. The father in cross examination commenced to challenge the mother in relation to the words that she ascribed to him, however, when tested the father seemed to concede that he did say that the child needed to get outside and play more and that he did say that this occupational therapy did not exist in his day and it seemed to him to be an industry which is now there to generate money and he was sceptical (ie it was a load of rubbish) as to the efficacy of process. I am therefore prepared to accept, based on the father’s concessions, that the mother has accurately recorded the words that the father used. The parties agreed the father made these comments in the presence of the child, but they disagreed as to whether the father ’s comments were in front of Ms W, the occupational therapist. The father asserted the comments were made while the parties were in the waiting room. On this point, given the father’s initial challenge to the overall evidence, I comfortably accept the mother’s version of the father doing this in front of the occupational therapist. The father tendered a document which he printed out from his mobile phone which became Exhibit 6. This document contained notes the father took at the occupational therapy session. The father asserted that that document was evidence that he had taken this appointment seriously. The mother’s evidence was that the comments made by the father were at the start of the session and the session went on for about one hour. There is nothing inconsistent with the mother’s evidence and Exhibit 6. I accept the mother’s evidence about what happened at the occupational therapist on that day.

3. What happened at the occupational therapist does demonstrate the different attitudes that the two parents had towards the therapy that the child was to receive. The other point that the mother made in relation to the father’s engagement with the child’s occupational therapy was that the father knew that occupational therapy was due to recommence in the 2013 school year. At the time of the hearing we were four weeks into the first school term. The father was surprised to hear that he had already missed one appointment with the occupational therapist to which he was supposed to have taken the child. The father was unaware of any arrangements that had been put in place this year for her course of occupational therapy to continue.

4. There was a general concession by the father that in relation to matters of medicine (the mother is a healthcare worker) and in relation to education, that the mother communicated everything to him, that she was the driver of decisions in relation to these major long term issues, that she organised all the reports and that he simply cooperated.

Sunday nights with the father   

1. The mother raised the issue of the child being tired when she returns from her father’s home after being with him for four nights in a row. The father is heavily involved in his religious activities with his church. He takes the child to church with him once on Saturdays and twice on Sundays (once in the morning and once in the evening). The evening church service commences at 6pm and finishes at 7.30pm. The father asserts that he is able to leave the church service, get the child home, give her dessert (having had dinner before they go to the service) and get her into bed by 8pm. The father showed no willingness to discuss some change to this arrangement, notwithstanding the mother’s concern as to the weariness that the child was exhibiting. The father did, from the bar table, indicate that he had new information that the mother put the child in after-school care on the Monday afternoon and that is his explanation as to why she is tired when the mother collects her on Monday evening. The parents are unable to effectively communicate and reach agreement about whether there should be any change to the child’s Sunday/Monday routine to help her level of weariness on Mondays.

Child Support

1. The issue was raised as to the father’s payment of child support generally. It was an agreed fact that a number of assessments have been made against the father and the father had reviewed them by way of a departure application on a number of occasions. It is an agreed fact that the most recent assessment the mother had received showed an arrears of $3,261.37 for child support. The father asserted that when he completes his tax returns for the previous few years it would demonstrate that his level of income was not in the order of $60,000 as asserted by the Child Support Agency. Given that the Child Support Agency would have reviewed the father’s overall financial position when determining an application for departure from the assessment, on the information I have, I would infer that the Child Support Agency assessed the father’s earning capacity, but the father has refused to accept the Agency’s decision. The father has not been paying a level of child support that has been independently assessed as appropriate and that reflects poorly on his attitude towards his parental responsibility and to the mother.

2. During final submissions, the father asserted that the mother was making her application for parenting orders in order to maximise her child support (although he did not put that proposition to her when asking questions of her in the witness box). The mother could make exactly the same allegation against the father (but did not). I do not accept the father’s submission about this matter.

Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))

1. The only reported incident of family violence has been discussed above.

Likelihood of order leading to further proceedings (s60CC(3)(l))

1. It could be argued that making the order sought by the father would draw a line in the sand and would mean that it would be unlikely that he would come back again in a number of years time to attempt to rerun an application in similar terms to the one I am considering. At paragraph 37 of the Family Consultant’s report she says:

   Whether or not it might be possible and appropriate for [the child] to live in an equal time arrangement in the future is difficult to predict. However, it is noted that [the mother] is now supportive of a parenting arrangement which provides for [the child] to spend significantly more time with her father than she proposed in September 2011. If over, say the next 12 to 18 months, the parents are able to develop better communication and a more co-operative parenting alliance, then it might be appropriate to again consider whether or not an equal time arrangement would be in [the child’s] best interests. The parents will be able to explore any future changes with the assistance of a community based agency.

2. The father submits that to make the order sought by the mother creates a motivation for the mother moving forward not to improve her performance in communicating with the father and creates a circumstance where the mother has a vested interest in the communication between the parents not improving. That in fact is a fairly cynical view. It is my observation of the parents that they both love the child and have her interests very much at heart. Their attitude to parenting however is from very different perspectives. The mother comes from the position of being the child’s sole primary caregiver throughout her life.

3. The father’s perception is that he has done everything to encourage the mother to move on and to be flexible and he has “set the example” for the tone of their communication. He is of the view that it is the mother who is the problem and he is doubtful that the mother will change her attitudes towards him. On the evidence that I have, his view is not sustainable. There are problems with the communication between the parties, on both sides.

4. The fact is that both parties have attended courses to attempt to improve the skills so that they would be better able to deal with one another as parents. Whilst the knowledge the parties have gained from these courses may have improved the position in respect of communication between the parents to some degree, their ability to cooperate around issues relating to the child remains limited.

5. It is difficult to predict at this point whether or not there will be any future litigation, although it needs to be conceded that if the father is unsuccessful he is not necessarily likely to give up on the idea that it would be “fair” for the child to be with him half the time.

6. If the parties’ level of communication does dramatically improve over the next 12 to 18 months, they themselves, because of that improved communication, will probably be able to make a decision themselves as the child’s parents as to what is best for her rather than having a court impose a decision.

7. Given the above discussion, I do not take into account the prospect of future litigation as a weighty matter when deciding this case.

EQUAL SHARED PARENTAL RESPONSIBILITY

1. The mother has been the primary caregiver throughout the child’s life. She has also been the parent who has been primarily responsible for making the major decisions for the child whilst the parties were together and that has continued after the separation. The father has confidence in the mother’s ability to make detailed inquiry about problems that the child might be having and to explore the remedial options and action them. Whilst the father makes some criticism of the mother’s ability to keep him in the loop, overall she cannot be criticised for the way in which she has provided information to the father.

2. The parties agree to an order for equal shared parental responsibility.

3. The father clearly is heavily involved in the child’s religious activities.

4. Both parties to some degree show a tolerance to the other, on occasions, making what appear to be somewhat unilateral decisions. I would emphasise that an order for equal shared parental responsibility has implicit in it the requirement to make decisions jointly about major long term issues (see s 65DAC(2) FLA). Major long term issues are as defined in s 4 FLA as follows:

   "major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)  the child's education (both current and future); and

   (b)  the child's religious and cultural upbringing; and

   (c)  the child's health; and

   (d)  the child's name; and

   (e)  changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

   To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

5. Also, such an order for equal shared parental responsibility contains a requirement for the parties to consult and attempt to make a genuine effort to make a decision in relation to any particular major long term issue (see s 65DAC(3) FLA).

CONCLUSION ABOUT BEST INTERESTS AND THE REASONABLE PRACTICABILITY OF EQUAL TIME

1. I have no doubt that the father has the child’s best interests at heart. I have no doubt that the father presents his case genuinely from his point of view.

2. The parties live sufficiently close for an equal time arrangement to be reasonably practicable. When considering the parent’s current and future capacity to implement an arrangement for equal time, the father would argue that there is little difference between doing what they are doing at the moment and extending it by two nights a fortnight. That underplays the difficulties that have existed to date in implementing an arrangement for substantial and significant time. There is no indication that those difficulties in implementation will improve in the future.

3. I have referred above to some of the content of the five communication books. The fact that the parties still have to use a communication book evidences the continuing difficulty in not being able to talk to one another about the child’s basic daily requirements at handover.

4. The problems with the school uniform to which I have earlier referred is a clear example of what I find to be a level of dysfunctionability in the communication and cooperation between the parents which contraindicates an equal time order being reasonably practicable.  

5. The family report writer is of the view that the parent’s ability to cooperate with each other is at this stage extremely limited (paragraph 18). She also comments upon the impact such an arrangement will have upon the child. At paragraph 34 she says:

   It is concerning that the parents, at this stage, still have not developed an ability to cooperate about issues which are of particular importance to a child…Thus at this stage, it would be unlikely that they could move to an equal time parenting arrangement.

   She goes on to say:

   35. For [the child] to be able live [sic] in an equal time parenting arrangements [sic] her parents will need to develop a much more co-operative and flexible approach to items moving between their homes. Failure to do so will, no matter what parenting arrangement [the child] lives in, impact negatively on her emotional development and also her future relationship with each parent.

   36. [The father’s] wish for [the child] to live in an equal time arrangement is, it seems, based more on what he believes might be fair from his perspective rather than his having explored the issues for [the child] of living in an equal time arrangement when her parents have not yet formed an appropriate parenting alliance.

6. The Family Consultant has made recommendations which the mother has adopted as her proposals.

7. I place some weight on the opinion of the Family Consultant as it is consistent with all the other evidence that I have heard and the matters that I need to take into account as set out in Part VII Family Law Act when making the decision I am asked to make. 

8. The level of trust between both the parents is still poor. This situation exists notwithstanding both parties’ participation in post separation parenting programs.

9. I find that a week about arrangement is neither reasonably practicable nor in the child’s best interests and I will make the orders sought by the mother. 

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 March 2013.

Associate:   

Date:  28.3.2013