LAVERICK & HARWOOD (No.2)

[2020] FCCA 1005

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAVERICK & HARWOOD (No.2) [2020] FCCA 1005

Catchwords:
FAMILY LAW – Parenting – parental responsibility – competing live with applications – inability for parents to communicate – mother to have sole parental responsibility – child to live with mother and spend time with father – best interests of child.

Legislation:

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

Cases cited:

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant: MR LAVERICK

Respondent: MS HARWOOD

File Number: PAC 5103 of 2016

Judgment of: Judge Obradovic

Hearing dates: 9, 10 and 11 December 2019

Date of Last Submission: 11 December 2019

Delivered at: Parramatta

Delivered on: 1 May 2020

REPRESENTATION

Counsel for the Applicant: Ms Friedlander

Solicitors for the Applicant: Derham Houston Lawyers

Counsel for the Respondent: Ms Goodchild

Solicitors for the Respondent: Ark Law Lawyers

ORDERS

1. That all previous parenting orders are discharged.

2. That the mother shall have sole parental responsibility for the child X born in 2012 (“the child”). 

3. The child live with the mother. 

4. The child spend time with the father as follows: 

   (a)During school terms, from 6:00pm Friday to 9:00am Monday on each alternate weekend, with the mother to deliver the child to the father’s home at the commencement of the child’s time with the father and the father to deliver the child to the mother’s home or school at the conclusion the child’s time with the father.

   (b)For half of the April, July and September/October school term holidays as agreed between the parents, or failing agreement, the first half in 2020 and each even numbered year thereafter and the second half in 2021 and each odd numbered year thereafter. 

   (c)During the Christmas school holidays, unless otherwise agreed, the child spend time with each parent for one full week on a week about basis (that is, one week with the Mother, and the following week with the Father, and alternating thereafter), with:

   (i)the child spending time with the Mother in the first week of the school holidays in each even numbered year and 

   (ii)the child spending time with the Father in the first week of each odd numbered year. 

   (d)Unless the child is already spending time with the father on Father’s Day, the child is to spend time with the father from 6.00pm on the Friday before Father’s Day to 9.00am on the Monday following Father’s Day.

   (e)The child’s time with the father is suspended on the Mother’s Day weekend each year and the child is to spend the whole weekend with the mother.  

5. When the child is living with the mother, the child shall communicate with the father via video conference (such as FaceTime or Skype or otherwise as appropriate) or telephone on each Tuesday and Thursday between the hours of 5.30pm to 6pm and the mother shall afford the child privacy to speak to the father.

6. When the child is spending time with the father, the child shall communicate with the mother via video conference (such as FaceTime or Skype or otherwise as appropriate) or telephone on each Tuesday and Thursday between the hours of 5.30pm to 6pm and the father shall afford the child privacy to speak to the mother.

7. On X’s birthday, and each of the parents’ birthdays, the child shall spend time with the parent she is not otherwise with for one (1) hour between 6.00pm and 7.00pm by Skype. 

8. That in the event the father is unable to deliver the child to any of her sporting or extra-curricular activities, then the father shall advise the mother within a 24 hour notice for the mother, or her nominee, to arrange to take the child to the particular activity. 

9. The father is hereby restrained from taking the child to any medical practitioner for the purpose of medical review or examination without the knowledge or consent of the mother in writing. 

10. For the purposes of order 4, the first half of school term holidays shall commence at 3:00pm on the last day of school and shall end at 6:00pm seven days thereafter. The second half of the school term holidays shall commence at 6:00pm seven days after the last day of school and end at 6.00pm on the day before school resumes. 

11. The respondent mother authorises the child school to provide the father: 

    (a)a copy of all school reports for the child;

    (b)notification of school activities for the child;

    (c)parent/teacher nights for the child;

    (d)information concerning the said child being taken from the school for an emergency, remedial or correctional treatment. 

12. Unless otherwise provided in these orders, for purposes of changeover, the mother is to deliver the child to the father’s home at the commencement of the child’s time with the father and the father is to deliver the child to the mother’s home or school at the conclusion of the child’s time with the father.

13. In the event that either parent is unable to personally attend at changeover that parent is to notify the other as soon as reasonably practicable of his/her nominee.

14. The parents shall each keep the other informed in relation to their current residential address, email address and contact telephone numbers and shall provide updating information within 48 hours of any change to these details. 

15. The parents are restrained from denigrating each other or members of the other’s extended family in the presence or hearing of the child or permitting or allowing any third party from doing so.

16. The parents are restrained from discussing the proceedings or the Orders made in the presence or hearing of the child or permitting or allowing any third party from doing so.

IT IS NOTED that publication of this judgment under the pseudonym Laverick & Harwood (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5103 of 2016

MR LAVERICK

Applicant

And

MS HARWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings relating to the only child of the parties, X born in 2012 (“X”).

2. The parties to the proceedings are the applicant father, Mr Laverick and the respondent mother, Ms Harwood.

3. The primary issues in dispute between the parents are:

   a)Parental responsibility; and

   b)The living arrangements for the child with each of the parents.

Relevant Legal Principles

1. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1 at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with both of their parents.

6. A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]

   [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]

   [6] MRR v GR [2010] HCA 4 at [15]

Findings of Fact

1. The father was born in 1974 and is currently 45 years of age. The father was previously married and has two children from that relationship, namely A who was 17 years of age at time of final hearing and B who was 16 years of age at time of final hearing. The father was divorced in 2007. He is currently in a relationship with Ms C (“Ms C”).

2. The father currently resides in the Sydney Metropolitan Area in the suburb of Suburb D with his partner Ms C and his two children from his previous marriage, A and B. 

3. The mother was born in 1978 and is currently 41 years of age. The mother has a child from a previous relationship, E, who was 15 years old at time of final hearing. E currently lives with her father in Queensland and spends time with the mother. She had been living with the mother until approximately the end of 2017, including when the parties were together.

4. The parties met online in 2007, and started a relationship soon thereafter. The only child of that relationship X was born in 2012.

5. The parties separated on 30 June 2014. X was 2 years and 2 months old when this occurred. She has remained living with the mother since the date of the parties’ separation.

6. It is the father’s evidence that, whilst the parties were together, the mother was often abusive and would “attack those in the house”. The father says that on 20 November 2011 the mother physically assaulted the father whilst she was pregnant with X. The following day the father sought help for their relationship from a counsellor, Ms F.

7. The father says that the mother would belittle and degrade many aspects of the father’s life with his other children including questioning why he was part of the coaching staff for his son’s football team and would belittle his son’s choice of sport in front of his son.

8. The father states that he was concerned for his safety on many occasions when arguments would erupt between he and the mother and that he left the home on three occasions due to his fears. He states that there were many other times that he did not leave.

9. The mother was not asked about these matters in cross-examination.

10. The father asserts that his child A was spending time with him each week to then only once every second weekend due to the mother’s behaviour and “dislike” of A. These assertions were not put to the mother in cross-examination.

11. The father recalls an incident in 2014 when the mother struck her daughter E with an open hand across her face. When the father confronted the mother her response was “Don’t tell me what to do, she’s my daughter. I can do what I want”. The mother conceded in cross-examination that she did slap E across the face on that occasion.

12. On another occasion in 2014, the father asserts, the mother became angry whilst doing E’s hair, proceeded to the bathroom, smashed the hairbrush on the sink and slammed her fist into the basin so hard that it smashed. The father replaced the basin. The mother denies that the incident occurred in the manner described by the father. She says that she was brushing E’s hair, that she became frustrated and that she threw the brush at the sink, thus breaking the bathroom sink.

13. The father alleges that in about May or June 2014 the mother physically attacked the father following an argument over ironing a pair of school shorts. The mother, during the argument snatched the shorts from the father and threw them in the bin. The father retrieved the shorts and a “tug of war” erupted between the parties which resulted in the mother losing her balance and then running at the father and “clawing” at his chest. This was an event that occurred in the presence of the father’s son B. Upon leaving the house with B the mother again scratched the father’s back. These matters were not put to the mother in cross-examination. The father separated from the mother following the above incident.

14. Following separation the father says that the mother would often send him photos and videos of X and would keep him informed of X’s progress but that the mother remained angry and abusive towards him.

15. It was after the parties settled their financial matters that the father says their relationship further deteriorated. He says that the mother would “dictate” when he was allowed to see X.

16. The father says that he made numerous attempts to arrange for him to spend time with X during 2015 and 2016 however the mother was either not responsive to his requests or refused for the father to see X. Indeed, the father did not spend any time with X between 26 July 2015 and 25 December 2016. While there were attempts at family dispute resolution they were not successful.

17. The mother says that the father’s time with X began to reduce when the mother become concerned for the safety of X in the father’s care saying that “he was very depressed and feeling down so I had concerns for X’s safety”.

18. Further, the mother says that once the father’s work commitments changed his time with X became less frequent.

19. On 24 June 2015 the mother received a number of angry text messages from the father saying that he was outside the paternal grandparent’s home and was demanding to see X. The mother called the police and later received a text message from the father stating “Nothing to live for now, Fucking AVO. Bloods on your hands. Bye!!”.

20. On 6 July 2015 the father was taken to G Hospital by Police following an incident at the maternal grandparent’s home, where the mother was residing. The father says he was “extremely upset” about not seeing X and after consuming alcohol attended the residence and jumped on the mother’s car. The father’s current partner Ms C called the police upon the father’s return home whereby he was then escorted to G Hospital.

21. The mother says that she would often receive concerning text messages from the father and this again gave her great concern for the safety of X whilst she was spending time with the father. For example, on 26 July 2015 X was spending time with the father and the paternal family when the mother received a text from the father saying “Fuck you slut” which the mother says was unjustified.

22. On the same day the mother attended changeover she says the father:

    again threatened me by making a horizontal cutting motion across his own neck with his right index finger. He also walked up to my car, while I was sitting in the driver’s seat, with X in the car. I said to him “what’s your problem?” he replied with the following effect “I am going to kill you and I’m going to kill him. That’s my fucking car”.

23. The mother says that the father proceeded to punch the driver’s side window, “held the glass with both hands and shook it”.

24. The mother says it was following this incident that she stopped time occurring between the father and X and that any time the father was to spend with X was to be in the presence of the paternal grandmother.

25. On 28 July 2015 the mother asserts that the father again threatened to kill her partner, continued to call the mother and sent her a text message saying that he would attend X’s school. The mother contacted the police and was issued with an Apprehended Domestic Violence Order (“ADVO”). This being the ADVO which was made final on 18 August 2015. This ADVO expired on 18 August 2016.

26. The father says that on 31 August 2016 he learned that the mother was intending to move to the New South Wales Region H with X.

27. Between 1 September 2016 and sometime in mid-October 2016 the father attempted to correspond with the mother via his legal representatives to address the issue of relocation.

28. The father received a text message from the mother on 26 September 2016 advising of the relocation to Town J. The father says however that this was sent one month after the mother had already secured rental accommodation in Town J for herself and X. The mother moved to the Region H on 26 September 2016 with X and continues to reside there in rental accommodation. 

29. The father commenced proceedings in the Family Court of Australia on 26 October 2016.

30. On 20 December 2016 consent orders were made for X to live with her mother and to spend time with her father at a supervised contact centre. The matter was also transferred to the Federal Circuit Court on this date.

31. The father commenced spending time with X on a supervised basis at Suburb K Children’s Contact Centre on 4 February 2017 following the making of consent orders on 20 December 2016.

32. On 1 June 2017 the Court heard the father’s interim application.

33. On 23 June 2017 the Court delivered its Reasons for Judgment with respect to the interim hearing which occurred on 1 June 2017 and made orders inter alia that:

    a)The parents have equal shared parental responsibility for X;

    b)X live with the mother;

    c)X spend time with the father each Saturday for periods of gradually increasing day time.

34. On 13 July 2017 the father arranged for police to attend the mother’s home to undertake a welfare check on X. The father’s evidence is that he received concerning messages from X, messages that he could not recall with great detail, and rather than telephoning the mother to make sure the child was okay the father instead requested the presence of police to the mother’s home. The father argued that the reason he did not contact the mother after receiving that message from X was because he did not want to “set the mother off”.   After the police assured the father that she was safe with the mother and to leave the matter alone the father further failed to contact the mother because “it was not necessary to communicate”.

35. On 31 October 2017 the Court made orders for the preparation of a Family Report and made orders by consent for X to spend time with the father each alternate weekend from Friday to Monday.

36. The Family Report of Mr L was released to the parties on 14 August 2018.

37. Following the release of the Family Report on 14 August 2018 the father and Ms C completed the following  parenting courses/seminars:

    a)Triple P, Level 4 Positive Parenting Program;

    b)1-2-3 Magic;

    c)Emotion Coaching; and

    d)How to Raise an Emotionally Intelligent Child;

38. The father also completed ‘Mental Health First Aid’ and ‘Tuning into Kids’ program.

1. The mother explains in her affidavit that she is very concerned with the father’s “over-parenting of X’s health” and the number of medical appointments and specialists the father has engaged for X. The mother details the voluminous medical concerns and appointments the father has made for X.

2. The mother believes that the father “is trying to find anything wrong with X so he can accuse me of neglecting her”. The mother says that all but one of the doctor or specialist appointments that the father has taken X to there were no concerns found. These included:

   ·    Asthma

   ·    Head lice

   ·    Tiny wart on her hand

   ·    Mental health check

   ·    Psychologist referral letter

   ·    Bladder/kidney ultra-sound

   ·    X’s on the waiting list at the M Hospital Bladder Department

   ·    Speech Pathologist

   ·    Full blood tests, allergy test and kidney test because she had a stomach ache.

3. The father conceded in cross examination that in respect to medical appointments he has taken X to the doctors for asthma, an itchy scalp, warts on X’s hand, mental health check, a psychologist referral letter, speech pathologist, bladder and kidney ultra-sounds, blood and allergy tests, requested a spirometry test and facilitated putting X on the waiting list for the M Hospital Bladder Department. The father further accepted that in relation to the majority of these medical or specialist appointments the mother was not notified prior to those appointments.

4. The mother says that the father does not consult her about many of the issues or concerns he has for X’s health. For example, the mother was only made aware of an appointment for X at the M Hospital Bladder Department because she received a letter in the mail from the hospital.

5. As well, the father has insisted for X to see a child psychologist on at least more than one occasion because he believed and continues to believe that there was evidence that she “needed to talk to someone that wasn’t related to either party”.  The father said under cross examination that X had asked to see Dr N, the doctor who was treating X for the warts on her hand and had treated her since birth. The father did not enquire with X as to the reasons why she wanted to speak with Dr N nor did he enquire with Dr N as to what X had said during that appointment, an appointment in which the father took her to but did not physically sit in on. The father is of the view that X being a seven year old child has the capacity to have a confidential doctor-patient relationship.

6. In addition the mother says that X has told her that the father takes photos of “any bruises” that she may have.

7. The mother is critical of the father being inflexible with the time that he spends with X as well as being inflexible in relation to Skype calls the father has with X. For example, the father will wait in his car outside the mother’s home until the exact time that X is due to spend with him despite X watching him from the window. Similarly, on 2 October 2019 the mother offered the father a longer Skype call with X due to a missing his Skype call on 30 September however the father hung up on X on the thirty minute mark.

8. The mother says that the father is incapable of meaningfully communicating with her about any issues relating to X and that he prefers the “convenient way” of communicating via text message. She says that using this mode of communication is yet another way of the father having control over the situation and so that he “has evidential proof for court of what has been said”.

9. The mother gave evidence in her trial affidavit about two sports presentations whereby X was scheduled to receive a trophy. The events fell on weekends that X was to spend time with the father. X did not attend either presentation. Instead the father took X to dance notwithstanding that X was looking forward to attending. The father’s evidence is that it was more important for X to attend dance than the sports presentations.

10. The mother is concerned with some of the behaviours of Ms C which the mother says is overstepping the line of a step mother. For example, on 26 May 2019 Ms C posted a photo on Facebook of presents purchased for Ms C by the father on behalf of X for Mother’s Day which included a t-shirt saying “My stepmum and I are like this” with a picture of two fingers crossed resembling a close bond and in the background a message written on a blackboard saying “I wish you were my mummy”. X told the mother that she was told to write that message by the father.

11. The mother says her current circumstances are that she and X live together on the Region H, the mother works during the hours that X attends school and that X is progressing very well at school, is settled and has lots of friends there.

12. A significant point of conflict between the parties is the father’s insistence that X wear pull-up nappies during the night when she spends time with him. X is 7, nearly 8 years old. She has had some incontinence issues at night, but these have by and large been resolved at the mother’s home. The father says that this is not the case when she stays with him, and he has obtained advice (from the general practitioner who told the child she can get cancer from warts[7], and from the Incontinence Foundation websites) that wearing pull-up nappies would not affect (or cause) bedwetting. Despite the mother asking the father to help X be dry at night, the father has insisted that X wear pull-up nappies at night. This had continued up until the time of hearing, something which the mother was not aware of until she heard it during the father’s oral evidence.

    [7] This is what the child reportedly understood. The doctor apparently said that warts can be caused by the same virus which causes cervical cancer

Family Report Writer – Mr L

1. Mr L reports that when X was observed with the father that he was “warm and involved and focused on his daughter continually”. X was “excitedly engaged with her father”.

2. Similarly, Mr L reports that “the interaction between mother and daughter was like the interaction between father and daughter…nothing emerged to discriminate between the parents regarding their relationships with X”.

3. In addition to the parents, X was observed with her maternal grandmother and was observed to have a “completely comfortable” relationship with her maternal grandmother.

4. Mr L reports that X presented as an “intelligent child who appeared to be more advanced than average”.

5. X told Mr L that she would like to spend more time with her father.

6. Mr L believed that the father was sincere in his belief that X’s best interests would be served in his care and that the father acknowledges that X has a close relationship with her mother and that he would ensure that, if X was to live with him, that the mother maintains substantial involvement with X.

7. Mr L’s observations indicated that X has a close relationship with both of her parents and opines that:

   X appears to have benefited from her parenting arrangements so far. Accordingly, unless Mr Laverick can establish that X is at risk with her mother, then her parenting arrangements might not change.

8. Mr L continues by reporting that “… nothing emerged in this assessment to suggest that X is at risk of abuse in her mother’s care.”

9. Mr L recommended that X continue to live with her mother and spend alternate weekends with her father from after school on Friday to before school on Monday, plus half of the school holidays.

Parental Responsibility

1. The parties agree that there is no utility in the Court making an order for equal shared parental responsibility. Rather, they each submit that the parent with whom the child lives should have sole parental responsibility for the child.

Court’s Determination

1. X has a close and loving relationship with both of her parents. There is a real benefit to the child if she is able to maintain those close and loving relationships. X has benefited from the relationships so far.

2. X was only 2 years and 2 months old when the parties separated, and has lived with the mother since that time. The mother is the child’s primary attachment figure, and the expert evidence is that separation of a child from her primary attachment figure would be emotionally damaging. Mr L also gave evidence that unless the child was at significant risk in the mother’s care, then that attachment or relationship should not be broken and the child should remain living with the mother.

3. A risk to the child is that she may suffer psychological harm in the future if the conflict between the parents does not abate. While to date there is no evidence that she has been permanently psychologically harmed by the conflict, both parents have observed that the child has been caused pain and confusion by the conflict.  Mr L also found X to be a perceptive, intelligent child who would be aware of the parents’ conflict.

4. At the time of the family report interviews, X was 6 years and 4 months old. Although she appeared to Mr L to be an intelligent child who was more advanced than her age, the weight which is afforded by the Court to her views will nonetheless be limited. She expressed that she wanted to spend more time with the father.[8] This does not mean that she expressed a view that she would prefer to live with the father rather than the mother. It is an expression of a wish to spend more time with her father in circumstances where the practicalities of this child’s living arrangements have meant that she has limited opportunities to spend with the parent with whom she does not live.

   [8] This being on a Friday.

5. The father has a rather inflexible approach to parenting or at least he has an inflexible approach in respect of co-parenting with the mother. He has shown rigidity in respect of the application of interim orders. The examples are numerous:

   a)Insisting on speaking to X over Skype in accordance with the orders, including at the specified time, in circumstances where X had spent the day with him pursuant to the orders and was on the way home to her mother’s place at the time that the Skype call was to occur;

   b)Rejecting the mother’s request two years in a row to swap weekends so that the child could spend the Mother’s Day weekend with the mother in circumstances where the child was due to spend time with the father on that weekend pursuant to the orders and where the orders were otherwise silent in respect of Mother’s Day;

   c)Insisting on the mother being present when he is handing the child over in circumstances where the mother had requested that the child be dropped off at the maternal grandparent’s home rather than the mother’s home as the mother was not immediately available; and

   d)Waiting in his car until the exact time specified in the orders before knocking on the mother’s door in circumstances where the child had seen the father from the home window.

6. The father’s rigid and at times unreasonable approach does not encourage the mother’s relationship with the child. Rather it creates an environment of hostility, distrust and instability between the parents. The father is critical of the mother, and has continued to undermine her in respect of medical decisions and by refusing reasonable communication with her. The father does not have the capacity to foster and encourage a close and continuing relationship between X and the mother. If the child was to live with him, the loss of that relationship would be severely damaging to X.

7. The mother has at times acted in a hostile manner towards the father and Ms C. Some of the messages which she sent to the father were certainly rude and problematic and at times the manner in which she has addressed him and Ms C has also been rude. The mother has some difficulties in accepting Ms C’s involvement in parenting X. The mother is of the strong view that when X is spending time with the father it should be the father and not Ms C who is her go to person. The mother is of the view that it should be the father and not Ms C who should provide X with advice and that he should provide comfort to X when she needs it. The mother appears to be frustrated that the father does not do more with X. At the conclusion of the mother’s evidence the mother apologised. She said that upon reflection she had realised that she was inappropriately and overly concerned with Ms C’s involvement with X.

8. The father seeks orders for the child to live with him and spend alternate weekends and half school holidays with the mother. This would see a significant change to the child’s circumstances. It would see X separated from her primary care giver, it would see her having to change schools and her friendship groups, it would see her living with half-siblings with whom she has only spent limited time to date, and it would see her move from an area where she has lived since August 2016. The father does not provide any insight of how X might be affected by all of these changes nor does he provide any evidence as to how he would assist her with such a significant change.

9. While the parents do live some distance apart, there is no evidence of any particular practical difficulty or expense which would prevent the child from spending time with the parent with whom she did not live.

10. The mother has demonstrated a loving, supporting and child focused attitude towards X. She has facilitated the relationship between X and the father, and the strength of that relationship also reflects on the mother’s capacity to foster it. The mother is in employment which allows her to provide for the care of the child. Whilst she moved to the Region H at a time when she was in a relationship, after that relationship ended she has remained living there in stable circumstances. The mother’s extended family lives in Sydney, however, the mother says that she intends to remain living on the Region H where it is more affordable.

11. The mother has demonstrated a capacity to meet the child’s needs, including her emotional and intellectual needs. The father has at times not done so, for example because of the unnecessary medical interventions he has exposed X to. This has brought the child worry and unease. In circumstances where X is overall a healthy and happy child, the father should not be looking for signs of illness. As Mr L remarked, unnecessary medical presentations may reinforce in X that something is not up to par or that the mother is not up to par in looking after her needs. This is particularly so in circumstances where there is no objective evidence that the child is at risk of harm or neglect or physical abuse in the mother’s household.

12. Unfortunately for X, the father has not at all times demonstrated a mature and child focused approach to parenting. These missteps lead to a finding that there would be a risk to the child of her needs not being met if she was to live with the father.

13. There is no doubt that the father loves and cares for X very much. He is a concerned individual who is diligent, at times overly so, in ensuring the safety of his daughter. However, in circumstances where the objective evidence simply does not point to any risk of harm of physical abuse or neglect, the father’s assertions if erroneous or unsubstantiated can only serve to underscore the conflict between the parents. This is even more so in circumstances where the father refuses to communicate with the mother about concerns he may have.

Conclusion

1. The evidence is strongly in favour of an order that the child live with the mother and spend time with the father. It is not in the child’s best interest that she reside with the father and spend time with the mother. Objectively, the evidence does not show on the balance of probabilities that the child is at risk of harm (moreover an unacceptable risk of harm) in the mother’s household. The Court has found that there would be significant risks to the child if the bond with her primary attachment figure was broken, and that the father does not have the capacity and insight to meet the child’s needs on a full-time basis.

2. For all of those reasons orders are made as set out at the forefront of these Reasons for Judgment.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 1 May 2020