LEISA & TAIT - [2014] FamCA 152

FAMILY COURT OF AUSTRALIA

LEISA & TAIT

[2014] FamCA 152

FAMILY LAW – CHILDREN – Best Interests – Where the mother sought orders that the child live with her and spend substantial and significant time with the father – Where the child is currently in the primary care of the father – Where the father sought orders that the child continue to live with him and also sought a reduction in time the child currently spends with the mother – Where the mother contended that little weight should be given to the reports of the single expert – Where the court determined that the single expert’s evidence was complete and well considered and is accepted – Where the single expert opined that preserving the stability in the child’s routine is in the child’s best interests – Where the court determined that any significant change in the child’s parenting arrangements at present carries with it the unacceptable risk of disrupting the child’s emotional wellbeing – Where an order is made that the child live with the father and spend substantial and significant time with the mother.

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

Gaffney & Gaffney [2012] FamCAFC 140
McGregor and McGregor [2012] FamCAFC 69

APPLICANT:

Ms Leisa

RESPONDENT:

Mr Tait

FILE NUMBER:

SYC

7091

2010

DATE DELIVERED:

18 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

28-31 January 2014 and
3 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Sydney Family Law

Orders

That the mother and father shall have equal shared parental responsibility for the child of the marriage J born … 2008, (“the child”).
That the child shall spend time with the mother as follows:
(a)From the date of these orders until the commencement of school in 2016:
During School Terms
i.In week one from the conclusion of school on Friday to 3pm the following Sunday.
ii.In week two from 3pm on Sunday until the commencement of school the following Tuesday.
(b)From the commencement of school in 2016 the child shall spend time with the mother:
During School Terms
i.In week one from the conclusion of school on Friday to the commencement of school on the following Monday; and
ii.In week two from 3pm Sunday to the commencement of school on the following Tuesday
(c)       During the short school holidays in 2014
i.In the weeks the child would normally spend time with the mother from Friday to Sunday the child spend time with the mother from after school Friday until 3pm Tuesday; and
ii.In the alternate weeks from 3pm Sunday until 3pm on Tuesday.
(d)       In the long school holidays in 2014:
i.In the weeks the child would normally spend time with the mother from Friday to Sunday the child spend time with the mother from after school Friday until 3pm Tuesday; and
ii.In the alternate weeks from 3pm Sunday until 3pm on Tuesday.
(e)       In the short school holidays in 2015:
i.In the weeks the child would normally spend time with the mother from Friday to Sunday the child spend time with the mother from after school Friday until 3pm Tuesday; and
ii.In the alternate weeks from 3pm Sunday until 3pm the following Wednesday.
(f)        In the long school holidays in 2015:
i.In the weeks the child would normally spend with the mother from Friday to Sunday the child spend time with the mother from 3pm Friday until 3pm the following Wednesday.
ii.        In the alternate weeks from 3pm Sunday until 3pm on Tuesday.
(g)In the short school holidays in 2016 and every year thereafter the child will spend time with the mother in the first week of each school holiday period.
(h)In the long school holidays in 2016 and every subsequent even numbered year from after school on the last day of term until 3pm seven (7) days later and every second week thereafter with changeover at 3pm, noting that the last week for one of the parents may be a period of less than seven (7) days and that the parent with whom the child is staying at the time deliver the child to school on the first day of the term for the new school year.
(i) In the long school holidays in 2017 and every subsequent odd numbered year from 3pm on the seventh day after the last day of school until 3pm seven (7) days later and every second week thereafter noting that the last week for one of the parents may not be a full week and that the parent with whom the child is staying at the time deliver the child to school on the first day of the term for the new school year.
That the child shall live with the father at all other times.
That notwithstanding the above:
(a)The child shall spend time with the father:
i.From 6pm on Christmas Eve until 12 noon on Christmas Day in odd numbered years and from 12 noon Christmas Day until 6pm on Boxing Day in even numbered years;
ii.From 6pm on the Saturday immediately preceding Father’s Day until the commencement of school immediately following Father’s Day.
(b) The child shall spend time with the mother:
i.From 6pm on Christmas Eve until 12 noon on Christmas Day in even numbered years and from 12 noon Christmas Day until 6pm on Boxing Day in odd numbered years.
ii.From 6pm on the Saturday immediately preceding Mother’s Day until the commencement of school immediately following Mother’s Day.
That on the child’s birthday, the parent with whom the child is not residing or spending time with on that day, shall spend time with the child from after school until 6pm if it is a school day or from 10am until 1pm if it is a non-school day.
That changeover shall take place at the child’s school and in the event changeover is to take place on a non-school day, the parent with whom the child is not living, shall collect him from the residence of the parent at the time the child is to commence living with that parent.
That each party shall be entitled to telephone the child at 6pm every second day that the child is not living with that parent. The parent with whom the child is living at that time shall ensure that the child is available to receive that call and shall give the child privacy during the call which shall not exceed fifteen (15) minutes.
That each party shall notify the other of any emergencies, serious medical injury or illness relating to the child whilst the child is in that party’s care including providing the other party’s sufficient details to enable both parties to be consulted and advised with respect to such orders and/or conditions and/or any treatments recommended or provided.
That the parties shall keep each other advised of their contact telephone numbers.
That the parties shall keep each other advised of their residential address and provide each other with no less than twenty-one (21) days’ notice in writing of any intention to change address.
That the father and mother do all things necessary to authorise the child’s school to provide the other parent on a regular basis of copies of all school reports, school newsletters and other information regarding the child’s school activities.
That the father and the mother be entitled to attend all school functions, sports carnivals and other school events to which parents are invited.
That the parties shall each be entitled to take from any school attended to by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant, oral or written advice, affecting the education, health and welfare of the child and for this purpose the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
That the parties are hereby restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child’s presence or hearing.
That each of the parties is to enrol in and complete a parenting after separation course within three (3) months of these orders.
The parties shall take all necessary steps to agree upon a family counsellor and to attend upon that counsellor themselves and with the child as directed by the counsellor for such time and periods as the counsellor thinks desirable. In the event that the parties are unable to agree the counsellor shall be a counsellor nominated by Dr A.
That the child shall attend B School in Suburb D unless both parents agree to a change of school.
That the mother shall, within three (3) months of the making of these orders, move to a residence within twenty (20) kilometres of the father’s home.
That within seven (7) days from the date of these orders the parties are at liberty to relist the matter to seek an order that the child be placed on the Airport Watch list, also known as the PACE Alert system, and prevent the child’s removal from Australia.
That 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.
That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leisa & Tait has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC7091 of 2010

Ms Leisa

Applicant

And

Mr Tait

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings between Ms Leisa, (“the mother”) and Mr Tait, (“the father”) concerning their son J, (“the child”) who was born in 2008.
Pursuant to interim orders made by this Court on 1 March 2013 the child lives with the father and spends time with the mother from 10 am Sunday to 5 pm Tuesday every second week and in the other week from 3 pm Sunday to 5 pm Tuesday.
The mother’s application is that the child live with her and spend time with the father every second week from the conclusion of school on Friday until the commencement of school on the following Monday and in the alternate week from the conclusion of school Wednesday until the commencement of school on Friday.
The mother proposes that the child spend one half of the school holidays with each parent.
The father proposes that the child should live with him and spend time with the mother each alternate weekend from after school Friday until 3 pm on Sunday. This is a reduction in the time the child spends with the mother by two nights per fortnight.
The father also proposes that when the child commences Year 2 at school, that is in 2016, that he commence to spend time with the mother during school holidays for a block of four consecutive days during the short school holidays and three blocks of four consecutive holidays during the long school holidays. Until then the child would not spend any time with the mother during school holidays.
The parties were also in dispute as to which school the child should attend. The father proposed that the child should attend B School in Suburb D which is near where the father lives in Suburb E. The mother proposes that the child should attend G School which is close to where she lives in Suburb F. As will be seen this issue was overtaken by events which occurred during the trial. In short, the father had the child commence school on Thursday 30 January 2014, the third day of the hearing.

Background

The father was born in 1974 in Vietnam. The mother was born in Hong Kong in 1984. The parties met in 2004 or 2005 and commenced living together in July 2007. They were married in September 2007. From the time that they started living together the parties lived with the father’s parents in their home.
The child was born in 2008.
It is clear that difficulties arose in the marriage shortly after the birth of the child. The mother and the father’s parents did not get on. The mother said that they regarded her as lazy.
The issue of the parties acquiring their own premises was discussed between them. The father clearly had the means to acquire premises for the parties and the child. In addition, at some stage at around the time of the child’s birth, the mother’s parents gave her $180 000 for the purpose of buying a house.
The mother asserts that the father continually promised to acquire premises for them but never did so. The father denies that and says that he had no intention of doing so because he had formed the view that the mother was a poor housekeeper who could not look after a house.
In May 2009 the mother travelled to Hong Kong with the child. The mother says this was because she could no longer live in the paternal grandparents’ house. The father asserts that she returned to Hong Kong to study a course in the beauty industry.
Whichever be the case the mother remained in Hong Kong with the child living with her parents. The mother commenced a course in the beauty industry which had a duration of about three months. When it concluded she then commenced another course, or series of courses (it was not clear which) which, when completed, would entitle her to an international diploma. She also carried out some part time work with a friend.
Whilst it was the father’ s view that the parties separated when the mother moved to Hong Kong with the child, the mother was not of that view. She regarded the marriage as continuing and that she was in Hong Kong waiting for the father to organise independent accommodation. She had the view that they separated on 25 May 2010.
In June 2009 the father travelled to Hong Kong and spent time with the child and the mother. The three of them travelled to Japan for a three day holiday. The father returned to Australia. The mother and the child remained in Hong Kong.
In September 2009 the father travelled to Hong Kong. He was there for one week and, by agreement, the child returned to Australia with him. The mother remained in Hong Kong.
In October 2009, during a study break in her course, the mother travelled to Australia and stayed at the father’s parents’ home at Suburb E. She spent time with the father and the child.
In December 2009 the father travelled to Hong Kong with the child so the child could spend time with the mother. They stayed at the mother’s parents’ home for ten days. During that time there was another family trip to Japan. The father returned to Australia with the child and the mother remained in Hong Kong.
In March 2010 the mother returned to Australia and stayed with the father and the child at his parents’ home in Suburb E. She was there for one week before she returned to Hong Kong.
In May 2010 the mother again returned to Australia and spent one week with the father and the child. According to her, at this visit the father informed her that he was not willing to move out of his parents’ home. As a result she formed the view that the marriage was over.
On 5 July 2010, having finished her course in Hong Kong, the mother returned to Sydney. Initially, she stayed in a serviced apartment in Suburb H and later one in Suburb K.
On her return it was agreed between the parties that the child would live with the mother for four days each week and for three days with the father. The father asserts that he agreed to this proposition only because the mother had informed him that she was proposing to return permanently to Hong Kong in approximately two months’ time. She remained in Australia.
On 11 November 2010 the mother commenced these proceedings. In the orders sought at that time the mother proposed that she return to Hong Kong with the child where they would live permanently.
On 7 July 2011 Dr A, a single expert appointed by the court, provided a report to the court. She recommended that the child reside with the father for five days and nights per week and the balance with the mother.
On 6 October 2011 Principal Registrar Filippello made an interim order that the child live with the father and spend time with the mother two days each week from Sunday at 3 pm to Tuesday 3 pm. The Principal Registrar also ordered that the child forthwith commence therapy with a therapist nominated by the father in consultation with Dr A.
In November 2011 the parties were divorced.
On 23 February 2012 the mother commenced weekly therapy sessions with Ms L a clinical psychologist.
In August 2012 the mother moved to her current address in Suburb F.
On 1 March 2013 the orders of Principal Registrar Filippello were varied so that the child spent time with the mother from 10 am Sunday to 5 pm Tuesday in one week and from 3 pm Sunday to 5 pm Tuesday in the following week. This adjustment was made so as to maintain the time the child spent with the mother each fortnight and to permit him to attend his child care centre on four days a week.

Dr A’s Reports

Dr A prepared three reports for the court. This has involved her interviewing the parties on a number of occasions. In particular, Dr A saw the child on thirteen occasions. This is considerably more occasions than is usual. This, and the time over which the reports were prepared, puts Dr A in a position to form a detailed view as to how the child has developed over that time.
The mother mounted a considerable attack on the conclusions in Dr A’s third report which will be dealt with in due course.

Dr A’s First Report

Dr A’s first report was prepared on 7 July 2011. At that time the parenting arrangement was that the child spend four nights with the mother and three nights with the father each week. Dr A said of the child:
53.In my opinion, [the child] presented as a very insecure young child who easily became anxiously aroused and emotionally dysregulated. On interview, [the child] showed signs of disorganised and aggressive behaviour with both parents, for example, play sequences were soon intruded upon by anger leading to the disruption of his play and aggressive behaviour (e.g hitting his parents). Both his Chinese and English language development appears poorly or under-developed for his age. He demonstrated a tendency for non-compliance, for example, interview 6, when his mother asked him a question he refused to respond. He found it difficult to establish any contact with the interviewer (as well as with the interpreters) and he is reported by his father to have become increasingly resistant about attending the consultations. This suggested that [the child] found increased familiarity anxiety-provoking rather than the more usual response of feeling reassured by increasing familiarity (with a non-threatening person). This reaction, characterised by distrust of others, is indicative of a child with serious attachment difficulties.
54.[The child’s] aggressive behaviour has been reported across a number of different settings and contexts, for example, at pre-school, in shopping malls and in his family homes. In my opinion, [the child’s] aggressive behaviour is non-normative and along with his non-compliance suggests he may be at risk of developing a behavioural disorder if he does not receive appropriate psychological help.
55.[The child’s] difficulties are occurring on a background of multiple care-givers and significant long-term separations from his primary carers. From the history that I obtained from his carers I found it difficult to determine [the child’s] primary attachment relationship.

On this occasion Dr A noted the mother as presenting as an emotionally attached and emotionally immature young woman who appeared to be unable to anticipate the consequences of her actions. She said ‘she appeared to hold unrealistic expectations of the child’s developmental capacities and to be mis-attuned to his emotional states’. Dr A described the mother as placing great importance on a strict routine for the child as she believed this was what was required to deal with the child’s often disruptive and aimless behaviour. She appeared to believe that attending appointments for the report preparation and the court’s Child Responsive Program were problematic as they disturbed her and the child’s routine.
Dr A continued:
56.[The child’s] parents held different perspectives on his development and emotional functioning. His father was very concerned that [the child] suffered psychological difficulties and needed professional help. It appeared that [the father] was also troubled that he had let [the child] down by complying with his wife’s wishes in order to avoid conflict with her. [The mother], on the other hand, appeared to believe that [the child] was functioning well, for example his eating and sleeping and that any signs of distress exhibited by [the child] were transitory and connected to the different approaches to his care in her and his father’s home. Whilst it was reported that [the child] behaved in an aggressive and non-compliant ways in his mother’s care as well as observed in the interview context with his mother, [the mother] appeared to deny or failed to understand that this behaviour might carry some significance in terms of [the child’s] mental functioning and his relationship with her.
Dr A opined that a shared care arrangement was not suitable for the child as he needed ‘a simplified stable arrangement with minimal transitions between his parents so as to support the development of a secure sense of self and secure attachment relationships’.
Accordingly, she made the recommendation that the child live with the father for five nights a week and the mother for two nights.

Dr A’s Second Report

Dr A’s second report was prepared on 20 August 2012. One of the issues concerning Dr A was whether or not the child should commence school in 2013.
Dr A noted that there had been some progress with the child especially in relation to his non-normative aggressive behaviour as well as an improvement to the ease in which he transitioned into the mother’s care. She said:
52.…Nevertheless, there remains serious issues concerning his delayed social and language development, along with concerns regarding his fragile and easily dysregulated emotional functioning. While in the clinical setting, he no longer showed signs of non-normative aggressive behaviour (and this is reported in his home environments and in his early childhood centre as well), he does show a tendency for non-compliance and refusal.
Dr A expressed the view that the child was not ready for school in 2013. She recommended that it would be in the child’s interest to attend a preschool with a readiness for school program and attend four days per week.
In summary Dr A said:
58.I continue to be of the opinion that a shared care arrangement is not suitable for [the child], as he needs a simplified stable arrangement with minimal transitions between his parents to support the development of a secure sense of self and secure attachment relationships.
59.On balance, I suggest that another change to [the child’s] parenting arrangements at this time is not in his interests, assuming the father is able to care personally for [the child] and especially to support [the child’s] transition out of his care, for example to his mother and to pre-school. The father may need help from [Dr C] to learn to cope with [the child’s] anxiety in leaving his care …

Dr A’s Third Report

Dr A’s third report was prepared on 16 July 2013.
Dr A noted at page 5 of her report:
[The child] presents as a fragile, insecure child but is beginning to make progress with his emotional difficulties. He presents, in contrast to previous occasions, as a happier child with a capacity for play, albeit, at times, regressed play.
Dr A said:
46.[The child] continues to present as a vulnerable and insecure child. On interview, he was unable to separate and exhibited negativity, at times, although non-normative aggressive behaviour was not observed. He is reported to be selective with whom he speaks and to be delayed in expressive English language. In my opinion, the absence of non-normative aggression represents a significant positive change and suggests, if [the child] feels well supported and secure, a better prognostic outcome than indicated in 2011.
Dr A suggested that the child’s delays in language expression and interaction were likely to be responses to the psychological issue of his shutting out or down his awareness of conflict or distress.
Although Dr A found that the child’s primary attachment relationship continues to be with the father, it appeared that his relationship with the mother was being repaired and that they appeared to enjoy each other.
By the time this report was prepared the mother had abandoned her proposals to relocate to Hong Kong with the child. Instead she was proposing that the child attend G School.
Of this Dr A said:
52.I am concerned that [the mother], by prioritising [the child’s] need for education and social advancement which she believes can be offered in a suburb distant from [the father’s] home, has constructed an either/or choice – [the child] can live primarily with her or with his father. Notwithstanding there may be some cultural factors driving [the mother’s] decision making…, this construction cuts across the possibility of co-parenting and real co-operation.
Dr A opined:
53.I recommend that, due to [the child’s] special emotional needs related to early significant disruptions in his care, his need to attend school in 2014 and the attendant emotional adjustments that will be required of [the child], and the geographical distance between the parents’ home, the current 10/4 arrangement may need to stay in place. If the mother were to relocate, and when [the child] is well settled in school (perhaps Year 2), an additional night with his mother may be of benefit. I do suggest that a shared care arrangement would be too stressful for [the child], given his fragility and the parental difference and conflicts.

The Mother’s criticisms of Dr A’s Reports

It was contended by the mother that limited weight should be given to the reports of Dr A because she was not a psychiatrist or psychologist but was rather a social worker and psychoanalyst. This submission was not directed to any particular passages in the reports and consequently it is of no assistance.
In McGregor and McGregor [2012] FamCAFC 69 and Gaffney & Gaffney [2012] FamCAFC 140 the court reiterated that is was necessary for an expert to expose the reasoning process so as to demonstrate that the opinion was based on particular specialised knowledge. It was submitted:
33.It will be contended that there are significant difficulties in relation to the evidence of Dr [A], both as to her three (3) reports and the oral evidence that she gave, with such difficulties meaning that little weight can be placed upon that evidence for the reasons eluded to by the Full Court as set out above – see later.
Subsequently, many ‘deficiencies in and problems with’ Dr A’s reports were identified. None were specifically identified as coming within the criticism noted in paragraph 51 above.
The first and second reports were not, contrary to the earlier submission, the subject of any criticism.
The major criticism was that Dr A had used an inappropriate diagnostic tool in relation to the child to determine that ‘on interview he presented as being more secure in the father’s care, for example, with the father present as a safe base, he was able to explore relating to the interviewer’. This was because, it was submitted, the child was by now well familiar with Dr A so that he would interact well with the interviewer in any event.
This submission ignores the evidence by Dr A that she noted that there was a difference in the way that the child interacted with her when the father was present as opposed to when the mother was present (triadic interaction as opposed to dyadic). It was this distinction which led to her view that the child was more secure in the father’s care.
This passage also demonstrates how Dr A applied her specialised knowledge to reach her opinion.
It was then complained of Dr A that she had not addressed, or addressed adequately, the section 60CC factors.
It is not surprising that she did not mention the child’s views.
It was said that Dr A’s report contained ‘no true observations or discussion as to the nature of the relationship of the child with each of the parents’.
Firstly, Dr A’s report must be read with the two earlier reports.
Secondly, she clearly discussed in those reports the relationship of the child with his parents.
The issue of the willingness and ability of the parents to facilitate and foster a relationship with the other parent was explored in cross-examination. Dr A maintained her view that, even if the father was somewhat deficient in that regard, the need for stability was a more important factor.
It was submitted that Dr A did not consider the likely effect of any change in the child’s circumstances.
In her report she said: ‘On balance, I suggest that another change to [the child’s] parenting arrangements at this time is not in his interests’. This followed from a discussion of the child’s relationships with his parents and whether or not a shared care arrangement was desirable.
This criticism is not accepted.
The final major criticism of the report was that it did not address parental capacity.
Although the phrase was not used, Dr A was critical of the mother moving to Suburb F and prioritising the child’s need for education and social advancement. She said that this had created an either / or choice so that the child had to live primarily with one parent. She noted that Ms L (the mother’s clinical psychologist) was of the view that the mother was ‘well placed to take on extra parental responsibilities’.
She said that both parents were aware of the child’s vulnerabilities.
I do not accept that Dr A did not consider parental responsibility.
In any event, Dr A referred and discussed the matters that were of the greatest concern and importance to her. The mother took the opportunity to raise the matters that she considered not to be properly addressed or given proper weight in the reports.
Dr A considered those matters and adhered to her opinion.
I have only discussed what I consider to be the major criticisms of Dr A’s report but all have been taken into account. I do not accept them.
I found Dr A’s evidence to be complete and well considered. It is accepted.

Dr C

Pursuant to the recommendation of Dr A the parties and the child commenced to see Dr C in October 2011. Dr C is a clinical psychologist. She was to provide therapeutic counselling for the child, in particular, and the family.
On 6 February 2013 Dr C advised the father that as the child was improving there was no need for continuing regular appointments. She advised the parties to contact her again in six months.
The parties resumed consultations with Dr C in August 2013.
In September 2013 the solicitors for the mother served a subpoena upon Dr C for the production of the notes that she had kept during sessions. This caused Dr C some difficulties as she had agreed to provide therapy on the basis that the sessions would be kept entirely confidential. It seems that Dr C also became aware of the property proceedings.
There have been no counselling consultations with Dr C since that date. It is not entirely clear whether Dr C would have, in the light of the continuing court case, continued. Nevertheless, the difficulty was precipitated by the mother’s serving of the subpoena and her refusal to withdraw it.

The Parenting of the Parties until October 2011

The parties were each very critical of the other’s parenting abilities during the early years of the child’s life.
The father asserted that the mother could not cope with the care of the child and was forced to rely on her mother for assistance. On the other hand the mother asserted that the father basically delegated the care of the child to the mother and to the carer/housekeeper employed by his parents. Thus it was that each blamed the other’s parenting abilities for the child’s behaviour.
At the time that Dr A saw him she thought he had quite disturbed behaviour and was at risk of developing behavioural disorders. At the time of Dr A’s first report the child had spent time variously with his parents living together, with the mother in Hong Kong, with the father in Sydney and then with both parents in a shared care arrangement.
It is clearly Dr A’s view that the early disruption in the child’s behaviour was caused by significant separation from each of his parents at significant times in such a way that denied the child the opportunity to form a primary attachment to one or both of his parents.
At least with the benefit of hindsight, the decisions of the parents to effect those separations were not optimal. In that circumstance it is not useful to traverse and to attempt to determine the differences in the evidence of the other party’s parenting abilities during those periods. Rather it is more useful to accept that the difficulties arose significantly from the separations and to consider the parties present parenting abilities in the context of the other matters that require consideration and having regards to present matters and the needs of the child in the future.

The principles to be applied

I must apply the relevant principles of the Act having regard to the objects of the part of the Act dealing with children as set out in s 60B. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration. I am obliged to consider the matters set out in s 60CC of the Act.
S 61DA(1) provides:
When making a parenting order in relation to a child, 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 for the child.
Subsection s 61DA(4) provides:
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Section 60cc factors

Both parties proposed orders that gave the parents equal shared parental responsibility for the child. Notwithstanding, it is useful to consider the factors under s 60CC before returning to this issue.
The two primary considerations arose by s 60CC are the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse and neglect or family violence.
There was no suggestion by either party that there was any relevant abuse, neglect or family violence.
Following Dr A’s first report the court made the orders already referred to pursuant to which the child lived with the father five days a week and with the mother two days per week. That recommendation, and those orders, recognised that the child needed stability and security in his life and the opportunity to develop an attachment to at least one of his parents. Dr A formed the view that the child was, at that time, more attached to the father than the mother.
The parties then, and now, have a different approach to parenting of the child. The father is more aware of the emotional needs of the child and adopts a less disciplined approach to the child than the mother. As the mother revealed to Dr A, she felt that the way to deal with the child’s difficulties was to provide him with a disciplined environment and to ensure that he received a good education. Thus, at the time of Dr A’s first report she said of the mother:
24.She appeared to place great importance of instructing [the child] on ‘right’ and ‘wrong’ behaviour. Her father, Mr [Leisa] reported that his daughter spent time each night with [the child] reviewing with him his behaviour.
At that time it would be difficult to have found that the child had a meaningful relationship with either of his parents. The recommendation made by Dr A for the child to spend most of his time living with the father was based upon her opinion that the father appeared better placed psychologically to provide the primary caregiving relationship for the child. Nonetheless, she considered that the child needed to spend time regularly with the mother.
At that time the father had a greater insight into the child’s behaviour than the mother. He was concerned that the child had suffered psychological difficulties and needed help. On the other hand the mother, according to Dr A, ‘appeared to deny or failed to understand that this behaviour [the child’s aggressive and non-compliant behaviour] might carry some significance in terms of the child’s mental functioning and his relationship with her’.
Some three years and three months have passed since the interim orders were put in place. The parties have complied with the interim orders so that the child has spent ten days a fortnight living with the father and four days a fortnight living with the mother.
It is abundantly clear from the evidence that the child has a close, loving and meaningful relationship with the father. The relationship with the mother has taken somewhat longer to develop.
As reported by Dr A the mother’s early experience of caring for the child was ‘not relaxed’ and that she found it exhausting. She appeared not to be conscious of the child’s emotional needs. In many ways the mother was described as an immature person.
In February 2012 the mother commenced weekly therapy sessions with Ms L. She continues to have that therapy. In preparing her third report Dr A consulted with Ms L. In her second report she recorded:
50.Ms [L] reported that [the mother] had ‘grown up a lot’ in the last months and was beginning to be ‘more realistic’ regarding the ‘challenges of parenting’. She further reported that [the mother] was learning to stand on her ‘own two feet’ and develop her own parenting style, for example she was learning to set limits and be more responsive to her son. In addition, she reported that [the mother] was beginning to identify and articulate her own need to develop a sense of maturity and independence. Ms [L] reported that [the mother] continues to receive support from her own mother.
The position remains however that the mother still gives a priority to the educational needs of the child and what she perceives to be his social advantage over his emotional wellbeing.
This is particularly evidenced by the mother’s move to Suburb F. She did so because she regards Suburb F as a safe area (not in the sense of physical safety but in terms of emotional safety) and because it is in an area that will enable the child to mix with people who will give him a social advantage. She also believes that G School will give the child the education she believes is appropriate for him, and better than that he would receive elsewhere.
This seems consistent with a family view that the mother’s family seems to prioritise education over other family issues. The mother herself was sent from Hong Kong at the age of twelve to attend school in the United Kingdom. Whilst her mother accompanied her for the first year thereafter she had an education alone in the United Kingdom.

The mother continues to work on her parenting skills. Ms L’s conclusion in a letter dated 15 January 2014 addressed to the mother’s solicitor and annexed to her affidavit of 22 January 2014 was:
It is my opinion that via the process of psychotherapy with me [the mother] has matured and developed the capacity to be attuned within. “Maturity includes a capacity to manage one’s emotional states”. (Milton, Polmear & Fabricius, 2004). It is likely that [the mother] has internal capacities to be attuned to her child and to manage his emotional states, via the process of containment. It is likely that [the mother] has the internal capacity to be a “good enough mother” and provide the internal support necessary for a “facilitating environment” (Winnicot, 1995) of a child in her care.
Whilst Ms L did note that those suggestions require a further validation through a thorough family assessment they would seem to be validated by the third family report of Dr A.
Since the interim orders were made in October 2011 the child has improved considerably. This is clear from Dr A’s third report. The child’s yearly report from his preschool at the end of 2013 shows that the child has made considerable advancement in his language skills and his social skills.
Whilst, according to the father, the changeovers between the father and the mother shortly after the orders were made were upsetting and traumatic with the child forcefully expressing a desire not to go with a very negative view of the mother this has not been the case for some time.
Both parents report the child to be a happy bright child whose educational and social skills are improving all of the time. This has occurred for a significant period where the child has had significant and close contact with both parents.
The only conclusion that can be drawn from this is that the child has developed a relationship with the mother which is of value to him. Dr A opines that the child needs a deep relationship with both parents. The opinion of Dr A on this, as indeed on other matters, is accepted.
The orders that need to be made in this case are orders that will enable the child to spend significant time with the mother so as to foster and improve and maintain a meaningful relationship with the mother but recognising that the father will remain his primary caregiver.
Section 60CC(3) raises a number of additional considerations that are to be taken into account.

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child is still a young and relatively immature child. His views carry little, if any, weight.

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

The child has a close and loving relationship with the father. He also has a close relationship with the other persons with whom he lives being the paternal grandparents and his carer. He also has a close relationship with his cousins who live in close proximity.
The father did not call the carer or the paternal grandmother to give evidence. Whilst criticism can be made from the father for not doing so it was not suggested by the mother that the child did not have a good relationship with them. It is thus difficult to make anything of the fact that they were not called to give evidence.
The child has a developing relationship with the mother. The unchallenged evidence that the child is happy to see his maternal grandmother and spend time with her. The maternal grandmother has spent most of the last few years living with the mother assisting her and supporting her care of the child.
These factors support the child spending significant time with both parents but support the father remaining the primary care giver.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

Since the making of the interim orders each of the child’s parents has ensured that they have spent the time with the child as provided by the orders.
Each of the parties has formed views as to the major long term issues presently facing the child care. Unfortunately, they have not been able to agree.
The primary area of disagreement is schools. The father proposes that the child attend B School in Suburb E. It is close to where the father lives. There will be many children at that school from the Vietnamese and Chinese background which, as Dr A said, reinforce the child’s sense of identity and ability to play with other children. Ninety-five per cent of students at that school have English as a second language and the school has courses and procedures to assist children developing English skills.
The mother proposes that the child attend G School. It is close to where she lives. G School has a lesser proportion of students who have English as a second language (about fifty per cent) so the mother feels that at G School the child will be exposed to more people speaking English as a first language which will enhance his learning and development of that language. She feels that G School will provide the child with a greater educational opportunities and, importantly, greater social advantage.
Having formed these conflicting views as to which school the child attend and being unable to resolve their differences the parties determined that the court should decide that issue for them. To that end, and to prepare the child for school he was introduced to both schools and attended the orientation courses at both schools. Each parent attended the orientation at both schools.
Thus whilst attending orientation at two schools may well have been confusing for the child it demonstrates that the parents were working well in doing what they could to participate in making decisions about the long term issues in relation to the child.
Unfortunately, such cooperation was overtaken by events.
In November 2013 the father purchased for the child the B School uniform, hat and school bag. It emerged in his cross examination that at the same time he did so he presented them to the child saying this is the uniform of the school you will be attending next year.
The mother had taken no such steps in relation to G School.
It emerged during the cross examination of the mother that the child had, in fact, commenced school at B School that very day. The mother was entirely unaware of that until that moment.
The father’s explanation was that he believed from settlement discussions, and from something his solicitor had told him, that he had the mother’s permission to commence the child at school. This is so he said, notwithstanding he understood that the issue of schooling remained a live issue in the proceedings.
Be that as it may, the father did not inform the mother of his intention to commence the child at school on the Thursday, during the proceedings, or inform her of the time the child would be attending school so that she could be there as well. He had the opportunity to do so at changeover on the Wednesday afternoon before but he did not do so. That morning, whilst in the care of the mother, the child had attended the final orientation at B School. It was on the way home in the car from collecting the child from the mother, that the father informed the child he would be starting at school on the following day.
The father’s explanation for not telling the mother was that he assumed because he had permission he assumed the mother would attend. The explanation was unsatisfactory and given grudgingly. The decision of the father deliberately not to ensure the mother was present at the child’s first day of school deprived the mother and, more importantly, the child of the opportunity to have both parents present at an important day in his life.
This casts some doubt upon the ability of the father to permit the mother to participate in making decisions about long term issues in relation to the child. It supports the view of the mother that the father does not respect her or her role in the child’s life.
In a similar vein, the father, whilst opposing the orders sought by the mother on the ground that any change would not be beneficial, himself proposed orders making a change to the present arrangements. He sought a reduction in the time the child spent with the mother. He saw no contradiction in this.
This again suggests that the father does not recognise or respect the role and importance that the mother plays in the life of the child.
It was suggested that the failure of the father to agree to a developmental or speech pathology assessment fell into the same category. They do not. Apart from the mother, no one has suggested a need for such assessments.
Whilst this aspect of the matter causes some concern, it does not require a change to the orders to be made, Indeed, those orders attempt to preserve and enhance the mothers relationship with the child, which I have found to clearly to be in his best interests.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

Each of the parents adequately maintains the child when he is in their respective care.

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

It is apparent from the perusal of the orders sought by each of the parents that they each propose a change in the child’s circumstances though neither proposes a separation from either of his parents. The mother seeks substantially to increase the time the child lives with her and the father seeks to decrease it.
I have already referred to Dr A’s clear opinion set out in her reports. She repeated this view forcefully in cross examination.
Dr A said that the way to ameliorate the disruption caused by the child’s separations from his parents early in life is to have a simple consistent routine to provide safety for him. She said that the commencement of school will be stressful and tiring for him because of his age. That of itself was a significant change. She was wary of adding to that change.
Dr A said that she would be very conservative of change, especially this year because of his early childhood he is still a fragile little boy and that a lot of work has been done to improve him which she did not wish to disrupt. She thought it was an unacceptable risk to change residence this year as there was already a big change in the child going to school.
Each of the parents’ position was that the child should live near them and go to the school near where that parent resided. This is because each of the parents recognised that there was a significant distance between their homes and that it would be impractical for the child to live with one parent as their primary care giver and to attend the school chosen by the other parent. It would involve the child travelling across Sydney in peak hour traffic twice a day which would be tiring and stressful for him and clearly undesirable.
To ameliorate that each parent said that, if contrary to their wishes, the court found that the child should live with the other parent and attend the school in that area they would move their residence closer so as to facilitate time with the child.
The mother has already lived in the Suburb K area when the parties were sharing care with the child. She has enquired into and looked at housing in that area. She has indicated that she would submit to an order that she reside within fifteen to twenty kilometres of the father’s residence if he remained the primary care giver. There is no difficulty in accepting that evidence.
The father said that he would move closer to Suburb F if that were the choice of the court. Apart from asserting that he has done some cursory investigation of property in that area on the internet the father has not made any enquiries as to which suburb he would move, the type of accommodation or the cost. Although he may have discussed the move some time ago he has not discussed it with the mother. I formed a clear impression that the father did not regard it as a realistic possibility and whilst he had said he was prepared to move had not thought it through more thoroughly than that. I am not satisfied that the proposal was considered by him to be at all likely.
A number of questions were put to Dr A about the conduct of the parties some of which have been referred to above including the mother moving to Suburb F and the father’s conduct in relation to the school. In noting that some of the conduct of both parents was less than desirable Dr A did not regard that conduct as terribly significant saying there were bigger questions for what was in the child’s interests.
The bigger question is the avoidance of a return to the aggressive uncontrolled boy who is at risk of developing a severe behavioural disorder. The efforts of the parties and the stability of routine that has been achieved pursuant to the interim orders have resulted in a great improvement to the child.
Whilst acknowledging that she may be conservative in expressing the view, Dr A opines that preserving that stability is in the child’s best interests. The court accepts the opinions of Dr A and finds that the most important factor to take into account is the maintenance of the position that has put the child into a position of developing into a happy, normal child no longer at risk of behavioural disorders. That is best done by making no significant change in his parenting arrangements at present. Any change carries with it the unacceptable risk of disturbing the child’s emotional wellbeing.
This consideration strongly favours maintaining the father as the primary care giver.
If the father remains the primary care giver then G School is not a desirable school for the child to attend because the travelling from Suburb E to Suburb F, for a boy of his age and circumstances, is, quite simply, unacceptable. This view is arrived at independently of the fact that the child has already started at B School. The circumstances in which attendance commenced are undesirable but it is the school which the child would have been attending even if the father had not acted unilaterally.
In those circumstances it is not necessary to deal with the difficult issue of what would have occurred had the court favoured G School but the child had already started at B School.
Maintaining the father as the primary care giver will also have the benefit of the child not having to lose the regular contact he has and enjoys with his paternal grandparents, carer and cousin to whom he is attached.
The father’s proposal was to reduce the amount of time that the child saw the mother.
His seeking of such an order indicates again that he views the child’s time with the mother as little benefit. It supports the submission that he does not respect her as a person who should be significantly involved in the child’s life. There is considerable force in that submission. The father’s denials are not accepted.
The child has developed well under the present regime. That involves him spending significant time with the mother. Thus the mother has assisted in playing her role in that development. A change in circumstances is undesirable. This includes a change to reduce the time that the child spends with the mother. There is no benefit to it and it affects the stability and routine which is important for the child. Such reduction in time was not supported by Dr A.
The father’s attitude to the mother is of concern. Ultimately, however, it must yield to the need for there to be considerable stability in the child’s life.

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

The parties have managed for a considerable time to cope with the practical difficulty of the distance between their residences. The distance will become more of a problem as the child attends school. This is particularly so as under the present arrangement where in one week out of each fortnight the child lives with the mother from Sunday evening until Tuesday evening. That would involve her taking the child to and from school on Mondays and to school on Tuesday mornings.
The trip from Suburb F to B School in peak hour traffic is too long and too tiring for the child. It is not practicable. If the child continues to reside primarily with the father it will be necessary for the mother to move closer to that area. She has indicated that she would do so and an order will be made to that effect.

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

As discussed earlier the father is critical of the capacity of the mother to deal appropriately with the child’s emotional needs. A large part of this stems from the difference in parenting approach and importance on various matters. It is important to recall the efforts the mother has made to improve her parenting abilities. It is true that she has made some poor decisions in relation to the child, such as the issuing of a subpoena to Dr C and moving to Suburb F.
The father, however, has made similarly poor decisions (such as unilaterally sending the child to school). The father’s lack of respect for the mother as a person with an important role in the child’s life has already been found to be a concern.
Each of the parents appropriately provides for the physical and intellectual needs of the child. Their approach towards his emotional needs is different, at times less than desirable, but this issue is not one which is determinative of this application because this factor does not point in any particular direction and would not, in this case, in any event, outweigh the need for stability.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

There was some passing reference to cultural issues in this case but no evidence was led that would enable the court to take into account any specific cultural needs of the child or his parents. There is no reason to think that the child would not fit in well at either B School or G School. He seems settled and happy in his community. This is not an issue that directs itself towards any particular outcome.

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

Each of the parents clearly loves the child and wants the best for him. They each have different views as to how that is best achieved. That does not mean the views of the other parent indicate that they are not properly or fully carry the responsibilities of parenthood.

Any other fact or circumstance that the court thinks is relevant

There are no other matters raised by s 60CC that are relevant to the present issues.

Discussion

Pursuant to s 65DAA(1) if a parenting order provides that a child’s parents are to have equal shared parental responsibility for a child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and consider whether the child spending equal time with each of the parents is equally practicable and if it is, consider making an order to provide for the child to spend equal time with each of the parents.

It was not suggested that there should not be an order for equal shared parental responsibility. It is in the child’s best interests for both parents to participate in the major long term decisions concerning him.
It is not in the best interests of the child to spend equal time with each of his parents at this stage. This is because the primary consideration is to continue to maintain a stable routine for the child to enable him to continue the development that he has achieved over the last three years. Changes to that routine should be made conservatively. He has already undertaken a significant change to his routine by commencing school this year. Changing to an equal shared time arrangement between the parents is a very significant change for a child of this age and most certainly not warranted with the child. Such a change would be contrary to the opinion of Dr A. Neither party sought such an order.
If made, however, such an order would be practicable provided the mother moves closer to father’s residence and the child’s school as she has indicated that she will.
Pursuant to s 65DAA(2) if the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child, consider whether that time with each of the parents is reasonably practicable and if it is consider making such an order.
For the purpose of that section time will be substantial and significant time only if that time includes days that fall on weekends and holidays as well as week days. It must be time that enables the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and to the parent.
The present orders provide that the child spends time with each of the parents at weekends and on weekdays. There will be orders to provide that the child spends time with his parents on days that are significant to him and to them. The orders to be made mean the child will spend substantial and significant time with both parents.
Whilst the parties have coped with the distance presently between them that distance will become more of a burden and have a negative effect upon the child because he has just commenced school. However, the mother has indicated that in the event that the child is to attend B School, and reside with the father, which I have found he should, she would move closer to the area. The orders that will be made are thus reasonably practicable for the parties to comply with.
Whilst the parties have difficulties in agreeing about the major long term issues facing the child they have demonstrated a capacity to deal well with the practical issues that arise when children are living in two different households. Although they do so by text, which is far from ideal, they manage the practicalities of such arrangements quite well.
Accordingly, the orders that will be made will enable the child to spend significant and substantial time with both parents within the meaning of s 65DAA and are also reasonably practicable.

Form of orders

I have already found that it is in the child’s best interests that there should be little change to the present arrangements. I have also found that it is desirable that in that circumstance the child attend B School.
There are two issues that require consideration. The first is whether and in what circumstances time the child spends with the mother should be increased. The second issue is what should be done about school holidays.
It is important to recognise that Dr A’s recommendation in her first report that the father become the primary care giver was based on what she regarded as a slightly greater attachment of the child to the father and the need to provide a stable environment. Each party had at that time spent considerable time with the child in their care. There was no real issue about the care that each of the parties provided to the child during those times. What seems to have put real pressure upon the child was the shared care arrangement (four days a week with the father and three days a week with the mother) and the parental conflict that developed at that time. The parenting style of the father was somewhat less severe than the mother’s at that time. None of this was to suggest that the mother was not an appropriate carer for the child or that he would not benefit from a meaningful relationship with her. Indeed the contrary is the case and the child has spent four days a fortnight with the mother.
In order to further his meaningful relationship with the mother Dr A has recommended that, at an appropriate time, there be a gentle increase in time that the child spends with the mother. She recommended that when the child commences in Year 2 he live an extra day a fortnight with the mother. This would have the effect of there being a gentle change and having the child well established at school before there is any such change. That opinion is accepted and the appropriate order will be made.
The father proposes that the child have no time with the mother for the school holidays for the next three years. The fact that such an order is proposed suggests that the father thinks that the mother is an unsuitable mother and that the child should be protected from her. That is contrary to the findings of the court. The father needs to accept that the child’s mother is and will remain a significant part of his life. Such a reduction in time would be inappropriate and clearly not in the child’s best interests.
The mother on the other hand seeks that the school holidays be divided equally.
Dr A is of the view that is too much and too soon although she is clearly of the view that school holidays offer an appropriate time for the child to spend extended time with the mother.
It was her opinion that it would be appropriate that commencing the next school holidays the child spend four nights in the first week with the mother and then the usual two nights in the following week. She was also of the view that that time should be increased over the next few years to fifty per cent of the school holidays. Dr A did, however, say that such time should not be in two blocks in the long school holidays but rather alternate weeks. This is to avoid unnecessarily stressing the child with too long a separation from either of his parents. Dr A’s opinion is accepted.
These orders will give time with the child with the mother during the school holidays which will meet the requirement of s 65DAA for there to be substantial and significant time in holidays as well as during school time.
Such orders are in the child’s interests because they will enable him to foster and maintain and further develop his relationship with the mother which is clearly in his best interests. The child’s interests are best served by him developing a deep relationship with both parents and these orders will facilitate that. It is most important that the child not form the view that the mother is somehow or in some way an inappropriate person for him to spend significant time with.
As consented to by the mother, there will be an order that she reside within twenty kilometres of the father’s residence.
There will be orders making provision for time on Christmas Day, Boxing Day, Mother’s and Father’s Day so that it is shared between the parties. Each of the parties agreed to attend a parenting after separation course and such an order will be made.
It is also desirable that there be family counselling between the parties and an order will be made to that effect. If the parties cannot agree on such a therapist the therapist will be nominated by Dr A.
Neither party sought an order that the child not be removed from Australia and be placed on the airport watch list. That may well have been a deliberate course. If it was not, in order to avoid unnecessary proceedings in the future, both parties will have the liberty to seek such an order within seven (7) days from the date of the making of the orders.
The orders will be as set out at the beginning of this Judgment.

I certify that the preceding one-hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 18 March 2014.

Associate:

Date: 18 March 2014