M and H
[2008] FCWA 16
•7 FEBRUARY 2008
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: M and H [2008] FCWA 16
CORAM: THACKRAY CJ
HEARD: 17-21 DECEMBER 2007
DELIVERED : 7 FEBRUARY 2008
FILE NO/S: PTW 7265 of 2002
BETWEEN: M
Applicant/Father
AND
H
Respondent/Mother
Catchwords:
CHILDREN - With whom a child lives - 6 year old child - father sought week about shared care - father has fairly flexible work schedule - father has family support - credibility issues - single expert's report recommended shared care regime - orders for week about shared care arrangement
Legislation:
Family Court Act 1997, s 66C, s 89AA
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr Hedges
Respondent: Mr Rynne
Solicitors:
Applicant: Kim Wilson & Co
Respondent: Deborah Pearman
Case(s) referred to in judgment(s):
B & B Family Law Reform Act 1995 (1997) FLC 92-755
Goode & Goode (2006) FLC 93-286
1These proceedings arise out of a disagreement between [the father] and [the mother] concerning their daughter, [Bella]. [The father] wants [Bella] to live with him each alternate week. [The mother] would prefer that [Bella] stay with [the father] only three nights each fortnight. It is agreed [Bella] should spend half of all school holidays with each parent.
Orders sought
2The orders sought by [the father] were contained in a Minute provided at the hearing. He seeks shared parental responsibility and an equal sharing of [Bella]’s time. [The father]’s proposals take account of his [work which involves him travelling] each alternate week during [periods of the year]. There [are often unforeseeable changes to his business travel plans]. The orders proposed by [the father] involve the pattern of [Bella]’s care varying in line with such changes.
3Although not mentioned in the Minute, [the father]’s counsel suggested that orders should be made which would have the effect of each parent being able to nominate one after-school activity for [Bella] one afternoon each week (which the other parent would be required to continue during the week [Bella] is living with them). This proposal arose out of a difference of opinion concerning the number of dancing classes [Bella] should attend.
4The orders sought by [the mother] were contained in a Minute provided during the hearing. She proposed that [Bella] spend time with [the father] each alternate week from start of school on Thursday until 5.00 pm on the following Sunday, as well as half of school holidays.
5[The mother] also sought shared parental responsibility. This proposal was subject to two conditions. First, there could be only one doctor treating [Bella], and both parents would be required to act in accordance with that doctor’s recommendations. Secondly, the parents would be required to abide by any recommendation made by any “institution” that provides [Bella]’s extracurricular activities. (Thus, for example, [Bella]’s dancing school would decide how often she would go to dancing classes.)
6Both parents sought a variety of other orders in relation to special days, handover arrangements and the like. I will return to these at the conclusion of these reasons.
Brief background
7[The mother] is 28 years of age. She has occasional work as a [teacher]. [The father] is 35 years of age. He is a member of the [staff] of [a business organisation], where he has been employed for the last two years.
8[The father] and [the mother] met in 1998. They started a relationship in about 2000 and commenced living together in late 2001, shortly before [Bella] was born in January 2002.
9[The father] was a [professional sportsman] at the time the parties commenced their relationship, although he was near the end of his [sporting] career. [The mother] worked full‑time almost to the time of [Bella]’s birth. The parties contemplated marriage after [the mother] fell pregnant; however, their relationship was seriously troubled and [the father] asked [the mother] to leave, which she did in May 2002. There was no issue concerning the care of [Bella] at that time. She was only a baby and [the father] accepted that she should live with her mother.
10[The mother] and [Bella] lived with [the mother]’s parents from the time of separation until October 2002. They then moved into a unit that [the mother] purchased in [a nearby suburb]. The unit is in close proximity to the homes of [her] parents and grandparents. [The mother] moved back into her parents’ home in 2007 after leasing her unit to her sister (to raise funds to meet the costs of these proceedings).
11[Bella] has lived principally with [the mother] since the separation, but has spent increasingly longer periods with [the father]. At the time of trial, [Bella] was spending time with [the father] pursuant to a consent order made in July 2006. [The father] now has [Bella] each alternate weekend from 5.30 pm on Friday to 5.00 pm on Sunday (to coincide with [work commitments during the season]). In addition, he has her from 5.00 pm on Tuesday until the start of school on Wednesday (each alternate week) and from after school on Tuesday until 7.30 pm the same day (in the intervening week). The order also provided for [the father] to have 14 nights with [Bella] (in two blocks) during the December 2006/January 2007 school holidays.
Parties’ proposals for [Bella]’s care
12[The mother] is living in her parents’ home, where she and [Bella] stayed following the separation. It is a large four bedroom, two bathroom home. Once she has resolved her financial difficulties, [the mother] plans to move back into her home in [the nearby suburb]. It is a three bedroom, one bathroom unit in a small complex, with a remote controlled security gate. [The mother] has part-time employment as [a teacher], but spends most of her time caring for [Bella]. She hopes to continue doing this in the future.
13[The father] lives in a house [in another suburb], which he shares with his sister, [Diana]. [Bella] has her own bedroom and playroom. [The father]’s parents live in the same suburb. [The father]’s 23-year-old girlfriend, [Belinda], spends a lot of time at the home.
14[The father] proposes to continue working as a [staff] member of [the business]. There are occasions when [the father] has no alternative than to be at work but I accept that he has a fairly flexible working schedule. I also accept that his managers are prepared to assist him to tailor his hours to help maximise his time with [Bella].
15[The father] described his work arrangements in paragraphs 42 to 52 of his affidavit sworn 19 November 2007. His work schedule varies, depending upon the time of year. I am satisfied that for much of the year [the father] will be able to take [Bella] to school and will be able to collect her on two or three days each week. If he is tied up at work, [the father] will arrange for one of his parents or [Belinda] to transport [Bella]. [The father]’s mother does not work outside her home and [the father]’s father works from home. Their place is only a few minutes away from [the father]’s house and [Bella] is their only grandchild. They have been prepared to forgo attending [events] to care for [Bella] while [the father] is at [work]. [Belinda] is currently studying [a course] at University. Her course has only 12 contact hours each week and she therefore has considerable flexibility in her schedule.
16[Bella] attends a [private school] [near her home]. Both parents propose she continue at that school. ([The father] pays the fees.) The school is much closer to [the mother]’s home than [the father]’s but he will be able to ensure she gets to and from school easily as it is only about a 15 minute drive from his place.
Credibility
17The recollections of [the father] and [the mother] (and members of their families) varied significantly concerning many events described in the affidavit evidence. It is therefore important to make some observations concerning credibility.
18[The father] presented as a level-headed and intelligent person. He is articulate and gave his evidence in a calm and thoughtful fashion. He was ready to make concessions when they were warranted and was respectful in the way in which he referred to [the mother] and her counsel. On occasions during the trial, he appeared genuinely bemused by [the mother]’s assertions.
19I formed the view that [the father] has a fairly good memory and gave a reasonably accurate account of the disputed events. This is not to say I accepted his evidence in totality. I was inclined to consider he had been more impatient and hostile towards [the mother] at contact changeovers than he was prepared to admit; however, I was not satisfied his behaviour was anywhere near as inappropriate as [the mother] alleged. I also consider that [the father] had some justification for his frustration on many of those occasions.
20I did not form as favourable a view of [the mother]’s credibility. Her thought processes are not as orderly as [the father]’s, which does not necessarily mean her evidence is unreliable. However, this personal characteristic may make it more difficult for [the mother] to reconstruct events in her own mind, especially stressful ones. I gained the impression she was often telling me how she wished she had behaved at certain times, rather than how she had actually behaved.
21The content of the text messages [the mother] has sent since the time of separation indicates that she has been very angry and upset since the breakdown of her relationship with [the father]. These messages (as well as [the mother]’s demeanour in Court) satisfied me that her behaviour during the disputed incidents was more likely to have been closer to that described by [the father] than that which she recalled. [The mother] admitted having sent many of the offensive text messages that were put to her during the course of cross-examination, but denied sending some and claimed she had composed only part of others. I found her evidence on this topic to be unconvincing.
22There were a number of instances during cross-examination where [the mother] came up with versions of events that had not been put to [the father] in his cross‑examination – for example, the assertion she volunteered that [Bella] was at the front of the house on 26 September 2006 when she first arrived, when it seems fairly evident that the events that unfolded on that day arose out of the fact that she did not see [Bella] when she first came to the house.
23[The mother] also gave clear evidence that her father had never seen the report of the Single Expert and said this was a private matter between her and [the father]. [The mother]’s father directly contradicted this evidence when he indicated that he had read the report. There was no suggestion he could have obtained the report from anybody other than [the mother].
24[The father]’s mother, father, sister and girlfriend were all cross-examined. Each was articulate and presented as trying their best to tell the truth. Each appeared to be sensible and well intentioned and I was generally inclined to accept their evidence.
25It is clear [the father]’s mother has been adversely affected by events that have occurred since the separation of [the mother] and [the father]. She feels a strong sense of injury as a result of what she regards as untruthful allegations made by [the mother] concerning [the father] and other members of the family. Although such strong opinions would inevitably influence perception, I nevertheless thought [the father]’s mother gave a reasonably accurate account of what she had observed.
26I gained the impression that [the father]’s father was probably more frustrated and behaved more irritably at some of the handovers than he was prepared to concede, but I do not accept his behaviour was anywhere near as bad as [the mother] alleged. He did admit that on one occasion when he was trying to enlist the help of [the mother]’s father to arrange contact he said, “I will have your balls in court, Sunshine”. I accept, however, this was uttered in the course of a fairly lively discussion between two fathers trying to stick up for their children.
27[The mother]’s parents were not quite as assured and articulate as [the father]’s parents in the way in which they gave their evidence, which does not mean they were not telling the truth. I gained the impression they had endeavoured to be as truthful as possible, albeit their evidence was coloured by their sympathies – in much the same way I consider the evidence of [the father]’s parents was coloured.
28The main issue on which [the mother]’s parents were cross-examined related to the advice they received concerning the impact a Restraining Order obtained by [the father] had on contact over Christmas 2006. I was inclined to accept their evidence that they understood, after speaking with the Police, that contact could not occur. Apart from the fact they seemed to be credible when giving their evidence on this issue, in this court of specialist jurisdiction I cannot fail to take into account similar evidence I have received on numerous other occasions concerning the advice routinely given by Police concerning Restraining Orders. I am not prepared, as requested by [the father]’s counsel, to draw an adverse inference because [the mother] did not call as witnesses the Police Officers who allegedly provided the advice. It is doubtful whether they would remember what they said and the issue was not of such moment as to justify the added expense associated with calling them.
29It is the case, however, that [the mother]’s father was mistaken in alleging in his affidavit that he had no communication with [the father] and his family over the 2006 Christmas period. He acknowledged in his evidence-in-chief that he had spoken with [the father]’s sister who was attempting to broker an agreement to ensure that [Bella] could see [the father], notwithstanding the Restraining Order. Documentary evidence had been provided earlier in the trial proving that such a conversation had taken place, but [the mother]’s father said he was unaware of this evidence and had independently realised a few days earlier that his affidavit was incorrect. The way in which the evidence unfolded inevitably gave rise to doubt as to whether this was true, but I was prepared to give him the benefit of the doubt.
Detailed chronology
30In order to assist understanding of the views I will express later, I intend to set out my findings concerning relevant matters in some detail. These findings are obviously based on the opinions I have formed concerning the credibility of the parties and their witnesses. No doubt, in some instances, I will not portray events precisely as they occurred, but I have weighed the evidence as best I can and consider the following scenarios to be the most probable.
31In her affidavit sworn on 15 November 2007, [the mother] painted a picture of [the father] as having very little interest or involvement in the care of [Bella] up until the separation and then no contact for 16 weeks, followed by only sporadic periods of contact until Christmas 2002. [The father] had told a very different story in an affidavit sworn in June 2006, in which he claimed to have had significant involvement in the care of [Bella] prior to the separation and regular contact following separation. [The father] did not seek to rely upon the relevant portion of that affidavit at trial and nor was [the mother] cross-examined on the allegations contained in her affidavit. [The father]’s counsel indicated in his closing address that he had deliberately elected not to go into those issues on the basis he anticipated they would have little impact on the outcome.
32If I had formed a more favourable view of [the mother]’s credibility, I would have been inclined, in the absence of cross-examination, to accept her evidence on these matters concerning the early part of [Bella]’s life. However, given the view that I have formed, I am not prepared to accept her evidence at face value. In the absence of any evidence from [the father], I am unable to reach any conclusion concerning the extent of his involvement in the care of [Bella] prior to separation and the extent of his contact with her in the months leading up to Christmas 2002.
33The first court proceedings between [the mother] and [the father] were commenced in December 2002, following a disagreement about Christmas contact. As a result of those proceedings, orders were made by consent in January 2003 providing for [the father] to have contact with [Bella] each alternate week from 8.00 am Sunday to 8.00 am Monday and in the intervening week from 6.00 pm Saturday to 5.00 pm Sunday, as well as one other overnight visit each fortnight. Provision was also made for contact on special occasions.
34There have been a variety of subsequent applications to the Court concerning [Bella]. No issue was taken with [the mother]’s assertion that every one of these had been commenced by [the father]. The applications have dealt with a variety of topics including handover arrangements and permission for persons other than one of the parents to look after [Bella]. In my view, no useful purpose would be served by considering each of these many applications in an endeavour to apportion blame between the parents. Essentially [the mother] says that [the father] continually wanted to change arrangements to suit his convenience, whereas [the father] believes the proceedings were necessitated by [the mother]’s inflexibility and desire to be “difficult”. In my view there was some substance in what each of them had to say.
35There have, however, been occasions when [the father] and [the mother] have been able to reach an agreement without the necessity for litigation. For example, it seems that although [the father] provided [the mother] with very late notice of his desire to alter the schedule of weekend contact visits in June 2006 following a change in the [work] travel pattern, she agreed to the change – albeit not quite as quickly as [the father] had wanted.
36There were also times in the early years after the separation when [the father] and [the mother] got on quite well. In fact, during the latter half of 2004 they were occasionally having sexual relations. As a result of this, it seems likely that [the mother] entertained hopes that they might reconcile. It seems [the father] did not have any such expectation and in early 2005 there was a series of events that, in my view, led to the current proceedings.
37[The father] had started going out with another woman (“[Serena]”) in January 2005. He introduced [Serena] to [Bella], who promptly reported back to [the mother]. She took the news very badly. As soon as [Bella] told her, [the mother] telephoned [the father], screaming abuse and threatening self-harm. [The father] was concerned and immediately drove to [the mother]’s home. [The mother] told [the father] to take [Bella] home to his place because she was too upset to look after her. [The father] instead waited until his parents came to collect [Bella] and he then took [the mother] to hospital. After her release from hospital, [the mother] decided to take [Bella] away, saying she needed a break. [Bella] was then not made available for scheduled contact visits, including on her birthday [in] January 2005. [The mother] claims that [the father] encouraged her to go away for the break, but admits that on her birthday he demanded that she bring [Bella] home. I consider it unlikely that [the father] agreed to [the mother] taking [Bella] away and, in any event, he took prompt legal advice concerning what he alleged was a clear breach of the order.
38The evidence was unclear concerning the way in which [Bella] had been behaving at handover before her mother’s emotional collapse in January 2005. Given [Bella]’s tender age and her likely strong attachment to her mother, I would have anticipated there would have been occasions when she was reluctant to separate. It does seem, however, as [the mother]’s counsel submitted, that the real problems with [Bella] at handover commenced after witnessing her mother’s response to finding out about [Serena] in January 2005.
39[Bella] was very upset and did not want to go with [the father] on 19 January 2005, which was his first contact period after the short interruption to the contact regime. I accept the evidence of [the mother]’s mother that [the father] became very annoyed and showed his anger by raising his voice and complaining that [the mother]’s mother was not helping the situation. I am unsure whether he used the words [the mother]’s mother recalls but it seems possible that [the father] could have handled the situation a little better, albeit he was understandably frustrated that he had been denied contact. In examining events of the day in question, it needs to be recalled that [Bella] had only very recently witnessed her mother’s emotional collapse and would no doubt herself have been in quite a fragile state at the time.
40In April 2005, the parties agreed to [Ms T] being appointed as Single Expert to provide an assessment of the family. In the period the parties were awaiting her report, [Bella] often appeared to be reluctant to go with [the father] at handover, but it seems the contact visits nevertheless usually took place.
41[The mother] claims that [the father] assaulted her at a handover on 25 June 2005 by grabbing her top and pushing her against a wall, but I was not persuaded this had occurred.
42On 29 June 2005, [the father] believed (incorrectly) that the time he was meant to collect [Bella] was 5.30 pm when in fact it was 5.00 pm. [The mother] said in her affidavit that she had “an appointment” at 5.30 pm and that she waited until 5.20 pm and then left home with [Bella]. (In her oral evidence, she acknowledged she was only going to visit a friend who lived nearby.) After an exchange of text messages, it was agreed that [the father] could collect [Bella] at 7.30 pm. [The mother] claims [the father] turned up at 7.20 pm and that she opened the security gate at 7.30 pm. I was more inclined to accept the [the father]’s evidence that he pressed the button on the gate at 7.28 pm at which time [the mother] told him over the intercom that it was not yet 7.30 pm and he could wait. I also was inclined to accept his evidence that when [the mother] came outside she was abusive, saying things such as “you have no balls – be a man”. I also accept [the father]’s evidence that there was then significant delay before he was able to collect [Bella]. [The father] was then only able to leave the property with [Bella] after a neighbour opened the security gate. [The mother] says that the buzzer which operated the gate had malfunctioned. This is possible since it had happened on a few other occasions, although the circumstances gave rise to suspicion that [the mother] was being difficult.
43In July 2005, there were further occasions when [the father] was unable to have contact with [Bella]. When contact did occur, there were often disagreements and [Bella] frequently became very upset. I accept that on some occasions [the mother] said to [Bella] that she did not have to go with her father for contact. [The father]’s father was often present at the handover and [the mother] claims she felt intimidated by him and [the father] when they demanded that [Bella] be made available for contact.
44[The father] commenced two sets of contravention proceedings in July 2005, alleging that [the mother] had breached the orders by not making [Bella] available to him. His applications came on for hearing in October 2005, at which time agreement was reached for [the father] to have make-up contact. It was also agreed that in the event [Bella] was unwell and unable to attend for a contact visit in future, there would be a make-up visit.
45[Ms T] provided her report on 8 August 2005. I will refer to the report in greater detail later, but it is sufficient at this stage to say that she found that [Bella] appeared to be well cared for by both parents and was well attached to both of them. She observed that “the child deserves and has a right to the care of both her parents and grandparents; this should add to the child’s well being”. She went on to say, “a shared (not necessarily half time) parenting arrangement should be considered, e.g. Sunday to Wednesday with mother, Thursday to Saturday with father”. She also suggested that it was “important to find a way for father to comfortably collect the child at handovers”. She also said that “the parents must help the child at handovers, e.g. mother must not hold onto the child in farewell or cry as this makes separation more difficult. The father must be pleasant and not belligerent”.
46[Ms T] made a variety of other comments and recommendations including that [the mother] should “seek counselling to enable her to feel less victimised, to separate her emotions towards father from the child and to separate from the child”.
47[The mother] was not happy with [Ms T]’s report and the way she had gone about preparing it. She wrote a lengthy letter setting out her concerns, saying that she found the report to be “extremely biased”. (Part of her concerns arose out of what [Ms T] later acknowledged were typographical errors in her report which suggested she spent more time with [the father] and his family than she had, in fact, spent.)
48At some stage after [Ms T]’s report was published, [the father] telephoned [the mother] using [Serena]’s telephone. [The mother] demanded to know on whose phone [the father] was calling, but he declined to tell her. I accept that [the mother] then rang [Serena] and was abusive to her and sent her inappropriate text messages. Whatever [the mother] might have thought in January 2005 concerning her own relationship with [the father], she knew by this time that she had no ongoing relationship with him.
49In February 2006, after the parties were again unable to reach agreement, orders were made to facilitate [the father]’s contact around his new job with the [organisation]. The orders provided for [the father] to have contact each alternate weekend from Friday afternoon until Sunday afternoon, plus overnight contact on Tuesdays in the intervening week. These orders were made until further order of the Court and the matter was programmed towards trial.
50A settlement was finally reached in July 2006 in the terms set out earlier. It will be noted that [the father] accepted less time with [Bella] than had been recommended by [Ms T]. I find he made this compromise to avoid going to trial and in the expectation he would be allowed the contact with [Bella] to which he was entitled under the terms of the consent order.
51In August 2006, [the father] enrolled [Bella] in swimming classes during his Tuesday afternoon contact. [The father] informed [the mother] about the classes and requested that she not attend. [The mother] nevertheless asked [the father] one day if she could attend to watch and he repeated that he was not agreeable. [The mother]’s father was present during this conversation and knew [the father] did not want [the mother] to attend. [The mother] and her father nevertheless went to the pool and watched [Bella] during her class. I consider that [the father] was justified in asking that [the mother] not attend the class, especially given that I accept that [Bella] is sometimes apprehensive when she sees her parents in close proximity to each other.
52On 2 September 2006, [the father]’s parents went to the home of [the mother]’s parents to collect [Bella] for the commencement of the Father’s Day weekend. [The mother] came out of the house with [Bella], then aged 4½, in her arms. She said nothing to [the father]’s parents but knelt down beside their car with [Bella]. She was saying things such as “it’s alright” and “Mummy will see you again soon, don’t worry”. [The father]’s father opened the door and said to [Bella], “Come on Sweetie – hop in” and held her hand. [The mother] made no move to release [Bella] or encourage her to get into the car and told [the father]’s father, “take your hands off her!!” After [Bella] had been settled into the car, [the mother] began to berate [the father]’s mother, apparently believing she had denigrated [the mother] at a recent party she had attended with [Bella]. [The mother] told [the father]’s mother that she would “pay if you ever fucking do that again”. She used other bad language, prompting [the father]’s father to tell her “not to use that sort of language with us” – to which [the mother] responded saying, “I will use any fucking language I want”.
53[The mother] thereupon removed [Bella] from the car and walked back towards her parents’ house. Efforts to retrieve [Bella] were unsuccessful and [the father]’s parents had to leave without her. After a series of telephone calls, [the mother]’s father suggested that [the father]’s mother speak with [the mother] over the telephone. The conversation was lengthy and ended up appearing to be fairly positive. [The father]’s mother was able to convey to [the mother] that she had not denigrated [the mother] at the party and both women agreed to put the past behind them for [Bella]’s sake. [The mother]’s father then dropped [Bella] at [the father]’s home, some 3½ hours after the appointed commencement time for contact.
54Regrettably, there was another incident on 3 September 2006 when [the mother] believed [the father] was going to return [Bella] at the conclusion of the Father’s Day weekend, although it was actually her obligation to collect her. I accept [the father]’s version of events set out in paragraphs 78 to 81 of his affidavit sworn 14 May 2007. He there describes how the afternoon unfolded, including an attempt by [the mother] to hit him through the window of his car when he eventually decided he would take [Bella] back to [the mother].
55On Tuesday 5 September 2006, [the mother] sent a text message to [the father] advising that he should collect [Bella] at 3.45 pm (rather than 2.30 pm as provided for in the order). I accept [the father]’s view that [the mother] was endeavouring to get back the time she claimed to have lost at the conclusion of contact on Father’s Day. In any event, [the father] responded by saying he would attend to collect [Bella] at 2.30 pm. In paragraph 185 of her affidavit sworn 15 November 2007 [the mother] gave her version of the sequence of events when [the father] and his father came to collect [Bella]. [The father] and his father gave a different version in their affidavits (paragraph 82 et seq and paragraph 18 et seq respectively). On [the mother]’s version, [the father] arrived 15 minutes early and left after waiting only three minutes, allegedly later saying that he “couldn’t be bothered waiting”. On the version given by [the father] and his father, [the father] arrived almost precisely on time and, after repeatedly buzzing and calling [the mother] on his mobile phone, left after about 15 minutes. [The father] finally spoke with [the mother] on the telephone some minutes after he drove away. She was laughing and told him it was his fault that he had left and that he would now have to collect [Bella] from a park near her parents’ home. I have indicated previously that I found [the father] to be a more credible witness than [the mother] and, on this occasion, the mobile phone records which were put to [the mother] during cross-examination strongly corroborated his version of events.
56In any event, [the father] agreed to meet [the mother] at the park. In his affidavit he described the park as being “secluded and not easily seen from the road” and he described how he observed [the mother]’s car parked next to another vehicle with a man unknown to him sitting inside. [The father]’s father then arrived in his vehicle and ended up taking photographs of the contact handover. Although some criticism was levelled at [the father]’s father for taking these photographs, I accept that the circumstances gave rise to some suspicion that something untoward might happen. As it turned out, there was no incident and [the father] was eventually able to have contact with [Bella].
57There was a further incident on 26 September 2006, which in my view is illustrative of the petty or controlling way in which [the mother] has behaved from time to time. On this occasion, [the mother] did not provide [Bella]’s school bag on the Tuesday afternoon at the handover. She said she would drop it off at [the father]’s place later. When she called by to do so, [Bella] was in the shower. [The mother] decided she would not give the bag to [the father] as she wanted to see [Bella], notwithstanding that she had only very recently dropped her off. [The mother] locked her car and said that [the father] could collect the bag from her home the following morning. Later that evening, [the mother] telephoned and interrogated [Bella] to see whether or not she had really been in the shower when she called earlier. [The mother] continued to refuse to drop the bag off, which resulted in [Bella] becoming upset. [The mother] eventually brought the bag around that night, but still would not hand it over until [Bella] came out to see her. [The mother] then had [Bella] get into her car and remained there talking for a number of minutes before finally leaving.
58[The father] had started a new relationship with his current girlfriend, [Belinda], in 2006. They had been going out since March, but in view of what had happened with [Serena] he decided not to introduce her to [Bella] until September 2006. [Belinda] spent four nights staying with [the father] and [Bella] during the October 2006 school holidays. On 18 October 2006, [the mother] sent the following text message to [the father].
Have known 4 a while! Our daughter told me everything … She hates ur friend, explaining why she has been difficult handing over and seeing you lately. I’ve had to force her to go. Don’t dare tell her off, She tell’s me, I don’t need to get involved with yr relationship/family over yr latest issues. The reason could be in your own backyard.
59On the previous day [the mother] had sent the following message:
U pathetic little boy, its ok when u 4get to return shit! Like her Vtceh, its been 6 mths!! I don’t want her going to kindy 2moro, drop her off home at 9am, she has conjunctivitis and just told me her heads itch, so her eggs have hatched! She needs medicine 4 her eyes, cannot go the ngt without it, use ur brains! Also she sounds very tired, and unhappy, this is much 2 late 4 a 4 yrs old? If you do not return her I will just go and pick her up and let her teachers know u brought her 2 school with conjunctivitis and nites when asked not 2. Im sure they will be impressed!
60On 21 October 2006, [the mother] sent these messages to [the father]:
8.31 amThis is why she hates you so much! How dare u hang up on me! If you want 2 stop me from speaking 2 my daughter and break the court order, then go ahead! I can break the court order 2! Answer the phone or I will find you!
8.32 amAnd ur little friend will cop it 2!
8.49 amUr such a tough boy on the phone tryin 2 impress ur hoar? The big diseased cunt must be next 2 ya!
61I am satisfied that [the mother] has also made derogatory remarks to [Bella] about [Belinda] and said things such as “make sure you wash your hands after you see her”. I accept [the father]’s evidence that [Bella] became concerned about seeing [Belinda] and told [the father] that [the mother] had said not to talk to [Belinda] or she would get into trouble. I also accept that [Bella] has been at pains to insist to [the father], [Belinda] and other members of [the father]’s family that they not tell [the mother] that she had been talking to [Belinda] during contact visits. I do not accept the criticism directed at [the father] and his family for having promised [Bella] that they would not tell her mother that she was talking to [Belinda]. Regrettably, fears about [the mother]’s likely reaction have also resulted in [the father] sensibly deciding that [Belinda] should not attend functions where [the mother] was present. This means that [Belinda] has not been able to attend dance concerts or school events, which has caused [Bella] to enquire why she has not come to watch her.
62In November 2006, [the father] spoke to [the mother] about his concerns that [Bella] appeared to be quite often unwell and that, as a result of illness, he had been unable to have contact on the first weekend in November 2006 (when [Bella] was meant to be attending a birthday party for a school friend). When [the father] asked [the mother] whether he could have [Bella] on the following weekend instead, [the mother] laughed at him and said, “bad luck it doesn’t work that way mate”.
63When [the father] collected [Bella] on the following Tuesday, he asked her how she was feeling. [Bella] told him that she had been very sick and in bed all weekend and the doctor had told her to stay at home. She also said she had been at her Nana’s house when [the mother] was working on the Saturday. The following morning, when [the father] dropped [Bella] at school, he spoke to the mother of the child whose birthday party had been held on the previous weekend and apologised for [Bella]’s inability to attend. The mother informed [the father] that, in fact, [Bella] had attended the party and had a “wonderful time”. In his affidavit [the father] said:
[Bella] was standing next to me while this conversation took place and looked at me with horror on her face and was visibly upset as she knew she had lied to me about what she had done on the weekend.
64[The father] then made enquiries at the dance school and was informed that [Bella] had been taken to dancing lessons on the Saturday when she was allegedly too ill to have contact with him.
65On 8 November 2006, [the mother] sent [the father] a number of text messages one of which read:
4.58 pmU know nothing! Y think u do! Big deal she went 2 a party for an hour on Sunday? So what? Why go down to the school when I was on my way, this is my time not ur’s!
66The latter part of the message was a reference to the fact that [the father] had gone to [Bella]’s school earlier that day after the school had telephoned to advise that [the mother] had failed to collect [Bella]. Not only was [the mother] critical of [the father] in her text message, but so was [the mother]’s mother when she referred to the incident in her affidavit (albeit with the benefit of entirely hearsay evidence). It is difficult to understand how [the father] could be criticised for going to the school when telephoned to say that the other parent had failed to turn up.
67[The mother] then sent the following two messages to [the father] that evening.
5.18 pmanyway im pulling her out of that school, she going 2 [the local] primary.
7.01 pmyes I can. Also im changing her surname, wil giv u the papers on Tuesday.
68On Tuesday 5 December 2006, [the father] arranged for his mother to collect [Bella], as he was tied up at work. Ordinarily, [the father]’s father would have collected [Bella] in such circumstances but he was also busy. [The mother] kept [the father]’s mother waiting for some minutes at the security gate when she arrived. [Bella] then came out and asked where her grandfather was. When [the father]’s mother explained that he was busy, [Bella] went back inside. [The mother] then spoke to [the father]’s mother on the intercom, asking why she was collecting [Bella] when the order said that only [the father]’s father could collect [Bella]. [The father]’s mother explained that the orders made in July 2006 permitted anybody to collect [Bella]. [The mother] then demanded to know whether or not a stranger could collect [Bella], to which [the father]’s mother replied, “you know that wasn’t what I meant”. [The mother] responded by saying, “[Grandma] don’t you fucking start. Don’t you fucking talk to me. I’ll come down there and fucking hit you”. [The mother] did not make [Bella] available to [the father]’s mother, who left after waiting for 35 minutes. [The mother] later allowed [the father]’s father to collect [Bella].
69On 13 December 2006, there was another particularly unpleasant incident, which was to have unfortunate repercussions. [Bella] was in [the father]’s care on this day, as part of his school holiday contact. He was on leave from work but was required unexpectedly to attend [an important meeting] following [a major upset in the workplace]. Under the terms of the July 2006 orders, [the father] was to be “the primary person to supervise and care for [Bella] during periods of extended contact in school holidays”. [The father] arranged for his mother to take [Bella] to do some Christmas shopping while he went to work. He was away from [Bella] from about 9.00 am until about 11.30 am. It seems that during this time, [the mother] became suspicious that [the father] might be working. She telephoned repeatedly to try to find out where [Bella] was and who was looking after her. When she finally made contact with [the father]’s mother, she was informed that [Bella] and [the father] were both at home. [The mother] told [the father]’s mother she did not believe her. She also said, “fuck you”, before terminating the call.
70Immediately after termination of the call, [the mother] arrived at [the father]’s home. His mother was at the front of the house and [Bella] was inside. [The mother] approached the house, screaming at [the father] and yelling for [Bella] to come outside. Knowing that his mother and [the mother] have a poor relationship, [the father] ushered his mother inside. She took [Bella] to her room, as she had become frightened and began to cry. [The father] then told [the mother] to leave the property, probably telling her to “fuck off”. I accept [the father]’s evidence that [the mother] then attacked him physically. I also accept the evidence of [the father]’s mother about what happened when she came out to try to calm the situation. I accept that [Bella] came out of her room and saw at least the last part of this incident. Although I accept that [the mother] came away with marks and scratches on her body (as did [the father] and his mother), I am satisfied that she was the instigator of the fight and that her injuries were sustained in the process of [the father] defending himself.
71After getting himself and his mother back inside the house, [the father] called the Police. [The mother] remained outside until the Police arrived about 30 minutes later. The Police issued a 24 hour Protection Order against [the mother]. [The father] went to Court the next day and obtained an interim Restraining Order.
72On the next day, [the mother]’s father collected [Bella] at the end of the weeklong contact visit. He admits he was angry because of what [the mother] had said [the father] had done to her. He told [the father] that he would kill him if he touched [the mother] again. This comment was made whilst [Bella] was present, although [the mother]’s father believes she was oblivious to what was being said. I accept that this behaviour was out of character for [the mother]’s father and that, as he said, “it was simply [done] on the spur of the moment as a father who had been hurt and concerned about his daughter”.
73[The father] was next due to have contact with [Bella] on Tuesday, 19 December 2006. [The father]’s father went to collect [Bella], but was unable to do so as nobody was home. [The father] then surmised there were going to be difficulties in obtaining contact over Christmas and filed an urgent application on 20 December 2006. On the next day, he received the following messages from [the mother]’s brother, [Andrew]:
3.09 am U fucken weak cunt
3.52 am U fucken weak cunt. U r fucked.
3.55 am Your mum is a fucken slut
6.01 amAlso cunt, u ever raise your voice, or swear at my mum again, lookout. And tell you mum to block her hole.
6.32 amDon’t worry cunt, I will be catching with u soon. We will see how tuff u r cunt.
[The mother]’s brother also left the following voice messages that morning:
3.05 amListen here you fuckhead right you touch my sister again right I swear to god I’ll come round and I’ll smack the fuck out of you cunt - right got any problems mate you ring me on my number right or if you want I’ll come round and see you cunt you don’t even say you’ll call the cops cunt I don’t give a fuck cunt I swear to god cunt I’ll fucken make you piss cunt.
3.08 amYeah ring me back you cunt, you fucken weak cunt, your fucked cunt, I swear to god cunt, you better watch your fucken back.
74On 24 December 2006, [the father]’s sister, [Diana], telephoned [the mother]’s father in an effort to organise contact for Christmas Day. [The mother]’s father told [Diana] that because of the Restraining Order he was not even permitted to speak with her and that [the mother] could be fined or imprisoned as a consequence. [Diana] told him this was incorrect and they agreed they should again read the various orders to see if contact could be arranged. When [Diana] telephoned [the mother]’s father again, later that day, he hung up on her. Arrangements could not be agreed for [the father] or his family to see [Bella] on Christmas Day.
75On the morning of Christmas Day 2006, [the mother]’s brother sent the following text message to [the father].
10.25amDon’t worry cunt, I haven’t forgot, just waiting for the perfect time. See you soon fuckhead.
76[The father]’s father and [Diana] went to collect [Bella] from [the mother]’s home at 1.00 pm on Christmas Day, but she was not at home and was unable to be located at the home of her parents or grandparents. Efforts to telephone members of [the mother]’s family were all unsuccessful. [The father] and his family had no contact with [Bella] on Christmas Day, not even telephone contact. The orders of July 2006 clearly provided for [the father] to have contact from 1.00 pm on that day. The Restraining Order, properly interpreted, did not prevent the contact occurring.
77On 31 December 2006, [the father]’s father went to [the mother]’s home to collect [Bella] for what was meant to be [the father]’s second week of holiday contact during that school holiday period. [The mother] was again not at home and efforts to contact both her and her parents were again unsuccessful.
78On 2 January 2007, [the father]’s mother tried unsuccessfully to telephone [the mother]’s father to organise some contact with [Bella]. Having been unable to make telephone contact, she sent a text message to [the mother]’s father complaining about the lack of contact and then left a message on his telephone saying that her family wanted to see [Bella] and asked that he telephone to arrange some contact. No response was received.
79On 9 January 2007, [the mother]’s mother sent the following text message to [the father]’s father:
Pls note, [the father] and [his mother] have put an intrim vro against my daughter [the mother], which not only prevents her family and friends from having any contact or communication what so ever, the same rules apply to ur family, friends, [his mother and father] and also bound by the same laws. [The mother] as well is entitled 2 uninterrupted holiday contact with her daughter [Bella], during jan 2007, as per recent orders – again the vro prevents any form of contact and communication, therefore, she is unable 2 advise [the father] of anything without contravening the vro placed in dec and due 2 the season, [the mother] has had very little contact with her lawyer, and 2 date awaits the vro objection due 2 b heard in court next mth. Both [the father and his mother] hav filed the vro without consideration 2 cing [Bella] and have themselves 2 blame. We continue 2 follow police advice and report constant harassment and intimidating abuse on our properties. Ur behaviour is unacceptable and not in [Bella]’s best interest!
80Notwithstanding the contents of the message, [the father]’s father attempted to collect [Bella] on 9 January 2007, but [the mother] was again not at home.
81On 10 January 2007, [the father]’s solicitors wrote to [the mother]. They sent a copy of the letter to the home of [the mother]’s parents. The letter strongly recommended that [the mother] seek legal advice in relation to the ongoing breach of the contact orders. The letter, in part, advised as follows:
“2(d)The existence of a Violence Restraining Order protecting our client and his mother, in no way is an excuse for you not to facilitate contact between [Bella] and her father.
(e)A Violence Restraining Order does not prevent you or your parents communicating with [the father]’s father or sister to facilitate contact arrangements.
(f)A Violence Restraining Order does not stay the existence of Family Court Orders.
(g)You will note the Violence Restraining Order applies save and except for the provisions of a Family Order. There is a Court Order in existence which provides for [the father]’s time with [Bella] and you should be complying with the Court Orders.
(h)The Violence Restraining Order does not preclude you from communicating with this office. We note in your mother’s text message she suggests there has been no contact because you have been unable to make contact. This is simply not the case and is not an excuse for contravening the Court Orders.
(i)You have been ignoring all requests by our client, through his family, to continue to facilitate contact. Our client’s family have continued to attend at the nominated times in the Court Orders to collect [Bella]. You have ignored telephone calls, telephone messages and attendances at your home to arrange and collect [Bella] in accordance with the Court Orders.
(j)It has been almost 4 weeks since [Bella] saw her father and this is totally unacceptable, particularly given our client missed spending Christmas Day with his daughter and his Christmas holidays. We fully intend to put all these facts before the Family Court.”
82The letter then went on to make a proposal for reinstatement of the contact, which included a handover at a local Hungry Jack’s, which would be arranged without [the father] coming into contact with [the mother].
83On Friday, 12 January 2007, [the father]’s father and grandmother went to Hungry Jack’s to collect [Bella] in accordance with the arrangements proposed in the letter of 10 January 2007. [Bella] was not there. On 16 January 2007, [the father]’s father sent [the mother] a text message to advise that he would be at Hungry Jack’s at 2.30 pm to collect [Bella], but once again she was not made available. [The father]’s father telephoned [the mother] but she told him she did not have to speak with him and hung up.
84On 16 January 2007, [the mother]’s solicitor wrote to [the father]’s solicitor advising that [the father] could have contact on the following day, which was [Bella]’s birthday. [Bella] was made available for three hours in accordance with the court order.
85On 23 January 2007, orders were made for the handover arrangements to be changed so that [the father] or his father could collect [Bella] from [the mother]’s great grandparents’ home, rather than having to meet face-to-face with [the mother]. The order required that [the mother] not be present. The new arrangement worked well as [the father] has a civil relationship with [the mother]’s great grandparents.
86On 1 February 2007, the parties attended a reportable meeting with Family Consultant [Ms M] at the Family Court. The notes taken by [Ms M] were admitted into evidence by consent. It is noteworthy that [the mother] was still agitating for handover arrangements to revert to a face-to-face meeting between her and [the father], notwithstanding all of the difficulties that had been occasioned by this in the past. [Ms M] noted that it was [the father]’s desire for as many contact handovers as possible to occur at school, but [the mother] was opposed to this because she had always “been the one to pick her up from school and it would disrupt the child’s routines if school handovers were in place”.
87On 13 February 2007, [the mother]’s solicitor wrote to [the father]’s solicitor advising him that [Bella]’s dancing classes had recommenced and that the lessons were now on Monday, Tuesday and Wednesday afternoons as well as a class on Saturday morning. The letter noted that the classes “have not increased [but] unfortunately, dancing falls on a Tuesday afternoon”.
88[Bella] did not have dancing lessons on Tuesdays at the time the consent order was negotiated in July 2006. This was one of the reasons Tuesdays were chosen as the day for midweek contact. Notwithstanding that these new arrangements were made for a day when [the father] had [Bella], his solicitors immediately responded indicating that he would make arrangements to ensure her attendance. [The father] nevertheless raised his concerns about the changed arrangements with the Family Consultant, but [the mother] was not prepared to do anything about it.
89On 28 February 2007, [the father] was unsuccessful in obtaining a final restraining order against [the mother].
90In April 2007, [the father] had his weeklong holiday contact with [Bella]. There were no complaints in the affidavits concerning anything connected with this period and I therefore presume it passed without incident.
91On 24 July 2007, [the father] collected [Bella] from dancing. On the way home, in my view inappropriately, he asked [Bella] if her mother had asked about [Belinda] again. [Bella] said she had – and that she had told her mother that she did not talk to [Belinda]. [The father] then asked [Bella] what she thought [the mother] would do if she did talk to [Belinda]. I accept his evidence that [Bella] replied that his mother would “kill” her with ant killer and that she also said that [the mother] would send her to [the father]’s home forever if she spoke to [Belinda]. On the following Tuesday, 31 July 2007, the first thing [Bella] said to [the father] when he collected her from her dancing class was “remember if Mummy calls not to tell her about [Belinda], okay Dad?” Whilst I accept that there has been some degree of apprehension on the part of [Bella] about her mother knowing she is talking to [Belinda], I also gain the impression that young [Bella] is possibly “milking” the situation in the way that many young children do in order to seek out attention, sympathy or affection from grown-ups.
92In July 2007 [the father] agreed to swap his week of holiday contact with [the mother] in order to allow her to coordinate [Bella]’s rehearsals and dance competition. Prior to the commencement of [the father]’s week with [Bella], [the mother] told him that [Bella] had dancing on Saturday during the holidays but it was up to him whether or not he took her to the class. Throughout the week, [Bella] indicated that she wanted to go to the class and [the father] was getting ready to take her on the Saturday when she indicated that she did not want to attend. [The father] therefore did not take her to the class. [The father] returned [Bella] at the end of the contact visit the following day. Less than half an hour after [Bella]’s return, [the father] received a text message from [the mother] saying “she is so upset you did not take her 2 dancing”.
93[Bella] was once again involved in a dancing competition in the school holidays at the end of the third term 2007. When [the father] collected her on 11 September 2007, he observed she not only had a haircut but had streaks of colour in her hair. It was put to [the father] in cross-examination that the streaks were temporary but [the father] responded that they were still in her hair six months later. Whilst the latter was clearly an exaggeration – since the trial took place in December 2007 – I nevertheless accept that the streaks were of a more permanent nature than was suggested.
94[The father] told [the mother] that he would not be taking [Bella] to dancing classes during his week of the October 2007 school holidays because she needed a break from the heavy routine. In any event on the Saturday morning when the class would normally have been held he took [Bella] to a birthday party of a school friend. I accept his evidence that [Bella] was happy not to go dancing but was worried what her mother would say about her not going.
95In his affidavit sworn on 19 November 2007, [the father] gave detailed evidence concerning the way in which the Tuesday afternoon dancing classes were adversely affecting his time with [Bella]. He was required to collect [Bella] from school on the Tuesday and take her directly to the class which started at 4.00 pm and was scheduled to finish at 6.30 pm. On some occasions the classes ran overtime and were finishing as late as 6.45 pm, which created difficulties as he was meant to have [Bella] back to the home of [the mother]’s great grandparents by 7.30 pm each second Tuesday. The impact on [the father]’s time with [Bella] is exacerbated by virtue of the fact that on most occasions parents are not able to remain to observe the dancing class.
96In October 2007, [the father] informed [the mother] that it was likely he would be travelling [overseas due to work commitments] during the week commencing 8 December 2007, which was meant to be his first week of contact during the summer school holidays. He asked [the mother] whether he could instead have [Bella] before he went [overseas]. He followed the matter up on 16 November 2007 and received a response from [the mother] indicating that, subject to him complying with certain conditions, he would be able to have contact for a week at the end of November. On 22 November 2007, [the father]’s solicitors wrote to [the mother]’s solicitors again requesting contact from the following day (the normal weekend collection time) until 30 November 2007. The letter pointed out that whilst [the father] would not be on annual leave at the time, [Bella] would be at school and [the father] would be available to take her to school every day and collect her from dancing and/or school. [The mother]’s solicitors responded on the following day, rejecting his proposals and saying “this is a school week, and my client does not believe that it is in [Bella]’s best interests to upset her routine”. This was somewhat curious since [the mother] had given the impression previously that she was agreeable to contact occurring (subject to conditions) notwithstanding that the contact would be during the school week.
97[The father] went on the [overseas business trip] and returned just before the commencement of the trial. The parties had been involved in negotiations concerning a make-up period of contact but had not reached agreement.
Report of the Single Expert
98Prior to the trial, I ruled that I would receive [Ms T]’s report into evidence, notwithstanding that it was prepared for use in the proceedings in 2005. I indicated that the weight to be given to the report would depend on whether [Ms T] was required for cross-examination. [The father]’s solicitors then provided [Ms T] with the affidavit evidence filed in the current proceedings and arranged for her to attend trial to give an updated oral report. I had not authorised this and, as [Ms T] had not seen any member of the family since 2005, I declined to allow her to give any further evidence apart from that already contained in her report. [The mother]’s counsel did not seek to cross-examine [Ms T] in relation to the contents of her earlier report, knowing full well that I intended to take it into account. [Ms T] corrected some errors in her report relating to the sequence of her 2005 meetings with the parties and was then excused.
99[Ms T] is a well-qualified clinical psychologist who has given evidence in many cases in the Family Court. Given the absence of cross-examination, I accept that each parent provided [Ms T] with the history which she detailed in her 2005 report. Based upon the information she had read and was provided to her by the parties, [Ms T] formed a number of conclusions, which I consider were well open to her.
100Amongst other things, [Ms T] had this to say in her report:
Father experienced mother as emotionally reactive, demanding and somewhat manipulative. Nevertheless, he can experience positive friendly times with her; he considers her parents favourably and considers her an adequate parent but for her not facilitating the child’s contact with him, which causes much frustration.
…
Mother has been hurt by father’s separations from her. She felt isolated from and unsupported by his family. Her hostility towards father leads her to believe that father’s motives for contact and the legal proceedings are suspect.
Neither parent recognises his or her own role in what has now become a hostile relationship. Mother is unaware of her emotional sensitivity and reactivity which impacts on contact visits; father was unemphatic [sic] to the impact of his relationship and separation from mother and to his frustrated reactions on handovers. A vicious circle of hostility has been set up with each one reacting to the other without consideration of the needs of the child.
…
Father shows a positive parenting attitude. He is willing to seek help when unsure and he has the support of his extended family and partner. However, he may lack some empathy of the child’s feelings at handovers; she may struggle at times for a number of reasons; even if there is some influence by mother in the child’s reluctance, the child’s feelings must be related to.
…
Mother has a positive parenting attitude. There is some difficulty with the child’s separation anxiety (and a need to video this as proof in spite of the child’s distress). Mother has some difficulty setting boundaries possibly as she is so close to the child; to some extent mother needs the child to [fulfil] her emotional needs to be loved. She notes father’s role in the contact difficulties but has little insight into her own behaviours, which might make contact more difficult for the child.
101In assessing [the father]’s capacity to recognise and provide adequately for [Bella]’s needs, [Ms T] said:
Father presented of adequate intellect, verbalisation, reality contact, grooming and affect; he appeared to be non-defensive in his reportage. He remained child-focused and attempted not to undermine mother.
102After considering information provided by [the father], [Ms T] concluded:
Father has had an adequate parenting model and family background. He has not had significant health, mental health, substance abuse or police offence issues. He appears to have had a fairly reasonable adjustment pattern completing school, being somewhat unsettled thereafter as he wanted a [sporting] career which he maintained for over ten years. He is now finding his way in alternative employment. He is settling in a relationship, has friends and family support. He showed a lack of empathy to mother at times and may reveal his frustration on contact to some extent when difficulties arise. He shows a positive capacity to care for the child’s needs and has the responsible caring support of his family.
103In considering [the mother]’s capacity to provide for [Bella]’s needs, [Ms T] said:
Mother presented of adequate intellectual ability, verbalisation, reality contact, affect and grooming. While reasonably contained in the interview she later telephoned distressed that I had asked about information that had not been in the affidavit material of which father had informed me; she was upset that I had spoken first to father. She had made an appointment for me to see the child at her home but cancelled this pending discussion with her lawyer. Emotional reactivity and sensitivity was noted to be somewhat improportionate to the situation.
104After considering the information provided by [the mother], [Ms T] concluded:
…Mother has adequate family relationships and parenting models, shows no substance abuse, is healthy, has no police offences. She completed school and has been gainfully employed. She showed reasonable adjustments. Mother has the capacity to care for the child’s needs and has the support of her parents. However, she shows emotional neediness, vulnerability and sensitivity which impacts on her parenting. She has difficulty separating her feelings towards father from the needs of the child to see father and she has difficulty separating from the child to allow the child to have a relationship with father and his family. While empathetic to the child, she is somewhat over protective/indulgent of the child.
105[Ms T]’s report was available to me when I first saw the parties in August 2007. I discussed with each of them the assessment [Ms T] had made. [The father] was prepared to accept that there was substance in [Ms T]’s criticisms of him. When I asked whether he thought that she had made a fair assessment of him he said:
Looking back I probably do. When you separate from someone you tend to think about yourself a bit more than you do about the other person at times. And, looking back it was a terrible time for both of us and you know, with struggling to see [Bella] I think you can become a little bit selfish in your own emotions and so forth, I can see how [Ms T] would say that in there. I can see it in both of us that we might not have been thinking too much about each other, more about how we can best be parents to [Bella] without thinking about being parents together for [Bella]. That may – obviously she is a specialist, she knows that – obviously we couldn’t see it but I understand that at the time we were – we had a lot of conflict and at handovers there was a lot of problems and that is one of the things we have taken out is the handovers. And, I am hoping to do that in this so that I can collect her from school say and drop her at school so that it takes out any clash that there can be in front of [Bella] particularly, because there has been a lot of that. Yes, so.
106When I asked [the mother] what she thought of the assessment made by [Ms T], she responded by complaining about the behaviour of [the father]’s father, noting her upset at the time and complained about [Ms T], saying that she considered she was being “a bit bullied” and that the report was “a little bit biased”. She also indicated that she did not feel she needed to comply with [Ms T]’s recommendation for her to attend counselling because she thought “everything was going fine” and that she felt “very much in control”. Overall, I formed the initial impression at the August 2007 hearing that [the father] was genuinely prepared to accept that he had contributed to the problems, but [the mother] had very much greater difficulty in accepting that there was anything wrong at all in her behaviour.
107Having had the opportunity to assess the parties during their lengthy cross‑examinations and to consider all of the evidence provided, I formed the conclusion that [Ms T] had provided a fair and accurate assessment of both parties. I also consider that the information contained in her report provided a sound basis for her recommendation that the parties should attempt a shared care regime for [Bella]. In my view, in retrospect, it is most unfortunate her recommendations were not trialled at the time.
Applicable law
108These proceedings fall for determination under the Family Court Act 1997. In coming to my decision, I will be guided by the relevant objects of that Act and the principles underlying them. The objects state that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
109These objects are more comprehensive than the one stated object of the legislation prior to the 2006 amendments. Before those amendments, the stated object was:
…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
110The first of the four new objects of the Act is far from novel. It echoes two of the guiding principles previously found in the legislation, namely:
•children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
•children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…
111The Full Court of the Family Court of Australia has previously considered the impact of amendments dealing with the stated objects of legislation relating to children of a marriage. It did so in B & B: Family Law Reform Act 1995 (1997) FLC 92-755 (“B & B”), where the Court was dealing with the 1995 amendments to the Family Law Act 1975. (Those amendments were later mirrored by amendments to the Family Court Act 1997.) In the course of its judgment in B & B, the Full Court said at [9.2]:
“It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”
112Notwithstanding the changes brought about by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about children. The Full Court said at [9.51] to [9.60] (my emphasis added):
“In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter‑relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in MallettvMallet (1984) FLC 91‑507; (1984) 156 CLR 605, and ZPv PS (1994) FLC 92-480; (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises. The analysis by McLachlin J in Gordon v Goertz, supra, is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”. See the judgment of Brennan J (as he then was) in Brown and Pederson, supra.
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
113It will be noted that the Full Court made many references in this citation to s 65E of the Family Law Act 1975, which was the provision making the best interests of the child the paramount consideration. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in the legislation. A similar exercise has been undertaken in amending the equivalent provisions of the Family Court Act 1997. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramountcy provision defines the essential issue and the Act still contemplates individual justice.
114The Full Court of the Family Court of Australia has said in Goode & Goode (2006) FLC 93-286 that the 2006 amendments evince a “legislative intent” in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the children’s best interests and reasonably practicable. The legislative intent is also tempered by s 66C(4), which requires the Court to consider the extent to which each parent has fulfilled (or failed to fulfil) his or her responsibilities as a parent.
115In enacting the 2006 amendments, Parliament has given legislative voice to what was already a presumption that responsibility for decision making about children should ideally be shared between parents. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with either parent, has engaged in child abuse or family violence (as defined by the Act). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
116If I make an order that [the father] and [the mother] have equal shared parental responsibility, I would then be obliged by s 89AA to consider whether or not [Bella] spending equal time with each of them would be in her best interests and reasonably practicable. If such an outcome is found to be in her best interests and reasonably practicable I am required to consider making an order to provide for her to spend equal time with each parent. If for some reason I decide that such an order would not be in her best interests and/or not reasonably practicable, then I am required to consider whether or not her spending “substantial and significant time” with each parent would be in her best interests and reasonably practicable. If such an outcome is found to be in her best interests and reasonably practicable, I am required to consider making an order to provide for her to spend “substantial and significant time” with each parent. By virtue of section 89AA(3), [Bella]’s time with each parent would only be “substantial and significant” if it included days that do not fall on weekends or holidays (as well as weekends and holidays). The time must also be such as to allow each parent to be involved in [Bella]’s “daily routine” and in occasions and events that are of “particular significance” to [Bella]. Finally, the time must also allow [Bella] to be involved in occasions and events that are of “special significance” to each parent.
117As will be apparent from the discussion above, my overriding objective must be to make the orders most likely to promote [Bella]’s best interests. The legislation itself specifies the matters I must take into account in determining what is in her best interests. Section 66C(2) details what are described as the “primary considerations” and s 66C(3) details the “additional considerations” to be taken into account in arriving at my decision.
Primary considerations
118I turn first to the primary considerations.
The benefit to the child of having a meaningful relationship with both of the child’s parents
119[The mother] and [the father] both love [Bella] dearly and she has an excellent relationship with each of them. I consider it is imperative for [Bella] that she continue to have a meaningful relationship with both parents. Whilst I accept it would be possible for [Bella] to have a meaningful relationship with [the father] even if she was only to see him on three nights a fortnight as [the mother] proposes, I consider that the relationship will be more likely to be strengthened in the event she is able to spend more extensive periods with him.
120Some aspects of [the mother]’s behaviour since separation could have undermined [Bella]’s relationship with [the father] and members of his family. Although her behaviour appears to have improved significantly, I am not convinced this would continue to be the case once these proceedings have concluded.
121I consider this primary consideration to be a major factor which supports the orders sought by [the father].
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
122I am satisfied neither parent would intentionally expose [Bella] to harm. Any possible risk of harm associated with exposure to violence between her parents could be minimised by making appropriate arrangements in relation to handover.
Additional considerations
123I turn now to consider those of the additional considerations which appear relevant:
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
124[Bella] was only 5 years of age at the time of trial. There was no independent evidence concerning her wishes. I am satisfied she would tell each of her parents what she expects they would like to hear from her, as she is closely attached to both and would wish to please them and their families.
The nature of the relationship of the child with —
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
125I am satisfied [Bella] has a close and loving relationship with each of her parents. I am concerned, however, that the relationship between [the mother] and [Bella] is more intense than would be desirable for [Bella]. In this regard, I formed the same impression as [Ms T] that “to some extent mother needs the child to [fulfil] her emotional needs to be loved”.
126I have no concerns about the nature of [the father]’s relationship with [Bella]. I accept it is somewhat less intense than the relationship between [Bella] and her mother and it may be perceived as being less warm. In my view, however, [the father]’s relationship with [Bella] is likely to complement and provide balance to the relationship [Bella] enjoys with [the mother].
127I am satisfied [Bella] enjoys a very good relationship with all of her grandparents, maternal great-grandparents and other close family members, including her younger cousin, [Lizzie], who she sees very regularly when living with [the mother]. She also now has a very good relationship with [the father]’s girlfriend. [Bella] is a very lucky little girl to have so many wonderful and loving people on both sides of her family.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
128I am satisfied [the father] and his family will do their best to promote a close and continuing relationship between [Bella] and [the mother] and other members of [the mother]’s family. [The father] has maintained throughout the proceedings that [the mother] is an outstanding mother, who has generally done a wonderful job in caring for [Bella]. I accept the submission made by [the father]’s counsel in his closing address that many other parents and their families would have reacted differently in the face of what might have been regarded as provocations by [the mother]. [The father], for example, did not refuse to take [Bella] to the Tuesday afternoon dancing classes when they were arranged in his time. Instead, he cooperated with her attending those lessons, even though he was understandably annoyed that it impacted badly on his contact with [Bella].
129It is possible that there is room for improvement in the way in which [the father] promotes [Bella]’s relationship with her mother. In saying this, I have in mind the evidence given by [the mother]’s mother that [Bella] told her that she is not allowed to say her Mummy’s name when she is with her father. When she asked her why this was so, she said “Because it’s Daddy’s precious time and he doesn’t want to hear Mummy’s name”. This allegation was not put to [the father] in cross-examination but I was inclined nevertheless to suspect it may have been said.
130I am not satisfied [the mother] will promote a close relationship between [Bella] and [the father] and members of his family. [The mother] still shows many signs of harbouring strong feelings towards [the father] (both positive and negative). Her actions in the past have tended to indicate that her strong emotional connection with [the father] has been allowed to get in the way of ensuring [the father] and [Bella] develop a good relationship. In my view, the current good relationship [the father] and his family enjoy with [Bella] has been in spite of, rather than because of, [the mother]’s attitude.
131[The mother] does not appear to have a good opinion of any of [the father]’s family. I accept the evidence of [the father]’s sister, [Diana], that [Bella] has said to her “my Mummy doesn’t like you”. I also accept [Diana]’s evidence that on one occasion when she accompanied [the father] to collect [Bella], [the mother] was hostile towards her, told [Bella] that she did not have to go on the contact visit and ordered [Diana] to leave the property. [Bella] was, however, ultimately permitted to leave with [the father] and [Diana]. While they were in the car, [the mother] telephoned [the father]’s mobile phone and asked to speak to [Bella]. She was obviously unaware that the telephone was on loud speaker and was heard to say to [Bella] “Did [Diana] scare you? Did [Diana] scare you?”
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from —
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
132The obvious effect of a change in [Bella]’s circumstances as proposed by [the father] would be the reduction of time that she spends with [the mother] and the corresponding increase in time that she will be able to spend with [the father] and members of his family.
133In considering the likely impact of this change, I must keep in mind that [Bella] is still a young child, who has spent the majority of her time with her mother. She is also a child who has a very strong attachment to her mother. These factors mean I should be very careful before making orders that would bring about a significant change to the current arrangements. I am quite satisfied, however, that [the father], with the help of his very close family, will provide an environment for [Bella] that will support her through the process involved in making the transition. [The father] and his family impress as a very steady and loving group of people who are very well attuned to the needs of young children.
134I do have concerns about the impact on [the mother] herself if I make orders that would involve her being separated from [Bella] for periods as long as a week at a time. I consider it would be beneficial for [the mother] if she were to obtain some personal counselling to help her deal with separation from [Bella]. Such counselling would assist her to accept that [Bella] will be well looked after by [the father] and his family and to appreciate there is nothing wrong with [Bella] having the opportunity to be looked after by [the father]’s relatives from time to time, just as she has allowed her own mother to look after [Bella] while she is working.
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
135There are no special difficulties or expense associated with contact given the willingness of both families to assist in managing any handovers that cannot take place at school.
The capacity of —
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and intellectual needs
136I am satisfied both [the father] and [the mother], with the help of their respective families, can provide for all of [Bella]’s physical, emotional and intellectual needs. Both parents have had some involvement at [Bella]’s school and are likely to continue to do so in the future. Both are expert at keeping [Bella] entertained during the time she is with them. For example, [the mother] is very creative and involves [Bella] in her artistic activities. The well balanced and sensible affidavit of [the mother]’s sister, [Tara], painted a good picture of how attentive [the mother] is to all of [Bella]’s needs. Similarly, the affidavit of [the father]’s sister, [Diana], indicates the way in which [the father] keeps [Bella] entertained when she is with him.
137It is true that [the mother] has far more experience than [the father] in caring for [Bella]. I was nevertheless impressed by the child-focussed way in which [the father] gave his evidence. He revealed a well developed understanding of all issues associated with child rearing, including, for example, a good appreciation of [Bella]’s medical needs.
138[The father]’s proposals involve the pattern of care for [Bella] revolving around [his travel commitments]. He does not, however, factor into his proposed orders the changes to routine that might be involved during [that period]. The [work schedules can last for up to one month]. [The work routine has an unpredictable timetable]. Similarly, the location and [timetable of the travel commitments] can depend on the outcome of other [business arrangements].
139Depending on [business matters], I accept if I make orders as [the father] proposes there may be occasions when he will be required to travel [inter-state or overseas] during times when he is meant to have [Bella] with him. There may also possibly be other occasions when he will be away at a time he was not expecting, as for example occurred with the recent [overseas trip], which was organised at fairly short notice. I am satisfied, however, that [the father] will be able to make arrangements for [Bella] to be cared for appropriately if he is required to be away from Perth. I would anticipate, however, that if he was required to be away for more than a few days at a time, he would give [the mother] the opportunity to look after [Bella].
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
140The only matter of significance under this heading is [Bella]’s age. I have already noted she is a young child and that care needs to be exercised in determining whether or not to change her living arrangements, especially given that she has a very close attachment to her mother.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
141Both parents have demonstrated a very good attitude to the responsibilities of parenthood. The only criticism that can be made is that they have allowed their daughter to be caught up in the conflict between them. I am convinced this has caused [Bella] emotional damage, even though there may not be any particularly obvious signs of this at the present time.
Any family violence involving the child or a member of the child’s family
142I have set out above the only allegations of family violence and I have found [the mother] was the instigator of the only remotely serious incident. I sincerely trust, for [Bella]’s sake, that there will be no further incidents of violence between her parents.
Any family violence order that applies to the child or a member of the child’s family
143There is no family violence order in place.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
144It is usually preferable to make the order least likely to lead to the institution of further proceedings. The difficulty is in determining what order that might be.
145As I indicated to [Bella]’s parents on the first occasion they came before me, it is imperative a way be found for them to avoid coming back to Court as regularly as they have been. This matter has been before the Court in every year since [Bella] was born. I am quite satisfied this has had a devastating impact on both parents, not only financially but emotionally. I am confident that involvement in these protracted proceedings has made it much more difficult for both of [Bella]’s parents to provide her with the time and attention she needs. I am also satisfied the funds being expended on legal fees by both families would be much better expended on [Bella].
146I accept the submission made on behalf of [the father] that the orders he is proposing are those least likely to lead to the institution of further proceedings. Not only do they appropriately take into account [the father]’s employment, but they also send a clear message to both parents that they are equally important in the life of their daughter and that neither one of them should be perceived as being in a position to dictate terms to the other about [Bella].
147Whilst I do not often regard this particular factor as one of great significance in the outcome of proceedings, I do consider it to be of some importance here.
Discussion and conclusion
148[The father] and [the mother] are both excellent parents. I am satisfied that each of them want the best for [Bella]. Both are able to provide for all of her needs. Both agree that the existing arrangements for the care of [Bella] are not satisfactory and a new arrangement needs to be made.
149[The father] and [the mother] also agree that an order should be made for them to share parental responsibility equally. I am satisfied that an order giving effect to that agreement would be in the best interests of [Bella].
150In view of my intention to order shared parental responsibility, I must then consider whether or not it would be in [Bella]’s best interests to spend equal time with each parent and, if it is in her best interests, whether it is reasonably practicable that they do so. In coming to my decision, a factor of considerable significance is my finding that [the mother] is not able to promote a strong relationship between [Bella] and her father and his family, whereas [the father] is able to promote such a relationship between [Bella] and her mother and her family. Both parents have as much to offer [Bella] as each other. In my view the best outcome for [Bella] would be for both parents to spend equal amounts of time caring for her. This will increase the prospects of [Bella] having a meaningful relationship with both parents, which is a primary objective of the legislation.
151In determining whether or not an equal shared care arrangement is “reasonably practicable” I am required to have regard to the provisions of s 89AA(5) of the Act which requires me to take into account:
•how far apart the parents live from each other;
•the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
•the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
•the impact that an arrangement of that kind would have on the child; and
•such other matters as the court considers relevant.
152[The father] lives [in one suburb] and [the mother] will in due course be moving back to live in [her unit]. The two suburbs are not too far from each other and there is no difficulty in [the father] being able to get [Bella] to school [near her home].
153The poor level of communication that currently exists between [the father] and [the mother] will pose challenges to them in implementing an equal shared care arrangement. I am not persuaded, however, that those difficulties are any greater than the difficulties that have been associated with the existing time sharing arrangement, which involves [Bella] moving to and fro between the homes of her parents on a number of occasions each fortnight. Nor do I consider that the challenges of implementing the equal shared time arrangement are significantly greater than those associated with the contact regime proposed by [the mother].
154One advantage of an equal shared care arrangement is that it can be fairly conveniently scheduled around [the father]’s work commitments, which also have a week about character. [The mother] has generally proceeded on the assumption that [the father]’s schedule should be made to fit around [Bella] rather than the other way around. Whilst this may appear at first glance to be an attractive proposition, it ignores the realities of [the father]’s background and his skills. It also overlooks the fact that the unusual nature of [the father]’s employment provides an opportunity for him to be involved in [Bella]’s life in a way that would not be possible were he to have a “normal” job. Whilst I accept that it makes it slightly more difficult to juggle a schedule for [Bella], I am satisfied it is important the arrangements for [Bella] fit in around [the father]’s work. In my view this can be achieved with minimum disruption for [the mother] and [Bella] as the [events] are published well in advance of the start of each season.
155In considering the impact of an equal shared care arrangement on [Bella], I do not discount the difficulties associated with a child not having one permanent base which she can call “home”. There would be very few adults who would relish such a disruptive arrangement, which could potentially last for a decade or more. However, disadvantages associated with any arrangement need to be weighed against the advantages. In my view the fact there may be some adverse impact upon [Bella] of a week about arrangement does not mean that the arrangement is not reasonably practicable within the meaning of the legislation.
156I accept that it may take [Bella] some time to become accustomed to regularly spending a week at a time away from her mother, who has until now been her primary carer. I am, however, satisfied that [the father] and his family will assist [Bella] through the transition period. I remain concerned about the impact of my orders on [the mother], but I am satisfied she will be able to continue to provide proper care to [Bella] during the time she has her living with her, although I consider she may need to seek counselling to assist her to deal with what will be a very difficult time for her. If she wishes, the Family Court Counselling and Consultancy Service will assist her to locate a suitable counselling agency for this purpose.
157For these reasons, I have determined that a week about equal shared care arrangement is in [Bella]’s best interests and is reasonably practicable. I therefore propose to make orders generally as proposed by [the father]. Handovers will, where practicable, occur at [Bella]’s school, as this will minimise interaction between the two families and will reduce the significant stress that I consider [Bella] has felt at handovers in the past. On those occasions when handover cannot take place at school, handover can take place at the home of [the mother]’s grandparents.
158The issue I must determine next is when the new arrangements will commence. The trial concluded just before Christmas 2007 and these reasons will not be delivered until the first week of the 2008 new school year. I have decided that it would not be appropriate to make an order for the new shared care regime to come into effect immediately for the following reasons:
•[Bella] will be settling back into school at the time these reasons are published and in my view it would be better for her not to have any significant change in her regime while she is settling in.
•I anticipate that [the mother] will be very upset by the outcome of these proceedings and this will inevitably be noted by [Bella]. If there is a delay in the introduction of the new arrangements, it will allow [the mother] an opportunity to recover her equilibrium and to assist [Bella] in making the transition from the current arrangements to the new arrangements.
•Some delay in commencement of the new arrangement will give [the mother] time in which to engage in some counselling to assist her to deal with issues that will inevitably arise as a consequence of the change in her role in [Bella]’s life.
•The change in care arrangements is likely to have some impact on child support arrangements and hence on [the mother]’s income. Delay in the commencement of the new arrangement will give her an opportunity to explore possibilities of obtaining more work than she has at present. (In making this observation, I am acutely aware of the difficulty that would be associated with [the mother] endeavouring to obtain work that fits around the proposed new shared care regime).
159The appropriate time for the new arrangements to come into place in my view would either be Easter 2008 or the end of first term 2008. Easter falls very early this year and, in my view, the best time for the new arrangement to commence would be at the conclusion of the first school term.
Extracurricular activities
160I turn now to the issue of [Bella]’s involvement in extracurricular activities. [Bella] currently attends dancing classes three afternoons a week and a further class on Saturday morning. In addition, [the mother] arranges for [Bella] to attend dance competitions during school holidays and some extra private dancing classes to prepare for the competition. The competitions involve individual performances in front of a crowd, full make up and the wearing of a wig. [The mother] is a [teacher] and she says her mother and grandmother were both dancers. It would appear she would be keen on [Bella] having an intensive involvement in dancing in the future, if not making it a professional career.
161[The father] and his family have serious reservations about the extent of [Bella]’s involvement in dancing and consider it is too much for a child of her age. They have observed, for example, that she falls asleep in the car on Tuesdays after her 2 ½ hour dancing lesson, which takes place after a full day at school. I accept also that [Bella] has told [the father] that she sometimes wants to fall asleep at school. [The father] would prefer [Bella] had the opportunity to be involved not only in dancing but in some other forms of activity, including sport (apart from the sport she does at school). This is understandable given [the father]’s [sporting prowess] and the benefits children obtain from engaging in team activities in their community.
162I am well aware there are strong differences of opinion amongst parents about issues such as the number of extracurricular activities in which children should be involved. Some highly committed parents appear to prefer to have a structured activity for their children for almost all the time they are not at school or asleep. Others prefer children to have a more relaxed routine, allowing them the freedom to choose how to entertain themselves when they are not at school. Each judicial officer will bring preconceptions/prejudices to resolution of disputes about such matters. In the present case, I was not provided with any expert evidence to assist me to come to a view informed by anything other than my own life experience and prejudices.
163I accept [the mother]’s evidence that there are other children who are involved to an equal extent as [Bella] in dancing. However, I am required to rule on a dispute where one parent has one view and the other has a diametrically different view about the propriety of the current level of involvement in one activity. My view is that [the mother]’s current programme is too much for a girl of her age. I have concluded that it should be sufficient for [Bella] to attend one dancing class a week after school and one class on the weekend. I nevertheless consider it a matter for [the mother] to determine whether or not [Bella] should attend more classes during the week in which she will be living with her. In saying that, I can appreciate that many dancing schools would not be prepared to allow a child to attend classes only every second week; however, that is something for [the mother] to sort out with the schools involved.
164I accept the submissions made on behalf of [the father] that it would be unrealistic to vest the decision-making authority in relation to such matters in the “institution” providing the activity in which [Bella] is involved. Apart from the clear conflict of interest involved, decisions about such matters are for parents to make. They should not be made by strangers who would inevitably find themselves as the “meat in the sandwich” between two parents with opposing views.
165I therefore accept the appropriate outcome is for [the mother] to be able to nominate one after school activity a week (such as dancing) which can continue during the time in which [Bella] is living with her father. Similarly, [the father] should be able to nominate one after school activity a week which will continue during the time that [Bella] is with [the mother]. As [the mother] wishes [Bella] to continue to attend dance classes on Saturdays (which seems supported by [the father]) then [the father] should be in a position to nominate one weekend activity, such as swimming, T-ball or the like, which [the mother] will be required to take [Bella] to during her time with her.
Orders
166Before setting out the proposed orders there are some matters of detail I should mention.
167[The father]’s proposal involved the weekly changeover taking place each Monday at school. Although the issue was not raised at the hearing, it occurs to me that it may be better for the handover to occur on Tuesday, given that there are a number of long weekends each year which would necessitate a changeover other than at school. I would invite further submissions from counsel on this point.
168In paragraph 4 of his proposed orders, [the father] sought that his week with [Bella] coincide with the week [he is not required to travel…] …” As I have indicated previously, it is not possible to predict in advance when [he is not required to [travel]……]. In my view it would be too disruptive for [Bella] and [the mother] for [the father]’s weeks with [Bella] to chop and change as much as might be required in the event that I was to make orders as proposed by [the father]. I propose to restrict the effect of the order proposed to the [routine events] – i.e. not including [any supplementary events]. By this means, there will hopefully only be one or two changes in the sequence of the weekly visits during the course of each year.
169The orders I propose to make will allow each party to travel interstate and overseas with [Bella]. [The mother] agreed in the course of her evidence that she would have no objection to [the father] taking [Bella] away for two weeks overseas, just as she hopes to take her away for two weeks to Disneyland later this year.
170Subject to hearing from counsel, I propose making the following orders:
1.The father, [the father], and the mother, [the mother], shall have equal shared parental responsibility for the child [Bella], born [in] January 2002 (“[Bella]”).
2.Unless contrary to [Bella]’s immediate welfare, the mother and the father must, before making any major long-term decision about:
(a)consult with each other in writing setting out any major long-term decision making proposal and the reasons for that proposal;
(b)give proper consideration to the proposal and respond in writing in a timely manner, making a genuine effort to resolve any issues; and
(c)in the event any dispute is unable to be resolved, the parent making the proposal shall consult with a Family Dispute Resolution Practitioner and invite the other parent to attend in an effort to resolve the dispute.
3.The parties shall seek to agree in writing the general practitioner to whom [Bella] will be taken for routine medical requirements and the father and mother will thereafter ensure that [Bella] is taken only to that general practitioner (save in circumstances of emergency or when the general practitioner is unable to see [Bella] within a reasonable period of time). If the father and mother are unable to reach agreement in relation to the identity of the general practitioner, each shall have liberty to apply to the Court for a determination.
4.That all previous orders relating to [Bella] be discharged with effect from the conclusion of the first school term in 2008, whereupon the following orders shall apply.
5.[Bella] shall live with each parent on a week about arrangement with the changeover taking place at the commencement of school each Tuesday or at 9.00 am on Tuesday in the event that the changeover takes place during school holidays.
6.The father’s time with [Bella] pursuant to the week about arrangement will coincide with [his routine weekly commitments to his business activities] (which expression shall not be deemed to include additional activities]). In the event that the father ceases to be employed by [this business organisation] the requirement for his time with [Bella] to occur [under the current arrangements] will be discharged.
7.The aforesaid week about shared care arrangement shall continue during the holidays at the end of terms 1, 2, and 3 in each year.
8.The shared care arrangements referred to in paragraphs 5 to 7 above shall be suspended in the following circumstances:
(a)each Christmas period, [Bella] live with:
(i)the father each alternate Christmas period from 1.00 pm Christmas Eve until 1.00 pm Christmas Day, commencing in 2007 and for each intervening Christmas period from 1.00 pm Christmas Day until 1.00 pm Boxing Day, commencing 2008;
(ii)the mother each alternate Christmas period from 1.00 pm Christmas Day until 1.00 pm Boxing Day, commencing 2007, and for each intervening Christmas period from 1.00 pm Christmas Eve until 1.00 pm Christmas Day, commencing in 2008;
(b)in the event [Bella] is living with the mother on the weekend in which Father’s Day falls, then [Bella] shall spend time with her father from 5.00 pm on the Saturday immediately preceding Father’s Day, until 5.00 pm on Father’s Day;
(c)in the event [Bella] is living with the father on the weekend in which Mother’s Day falls, then [Bella] shall spend time with her mother from 5.00 pm on the Saturday immediately preceding Mother’s Day, until 5.00 pm on Mother’s Day;
(d)on [Bella]’s birthdays, the parent who does not have [Bella] living with them will spend time with [Bella] on her birthday as follows:
(i)if the birthday falls on a weekend from 2.00 pm until 6.00 pm;
(ii)if the birthday falls on a weekday then from the conclusion of school until 6.00 pm;
(e)each summer school holiday period, [Bella] shall live with each parent for one half of the school holiday period, with [Bella] to live with:
(i)the mother for the first half of each alternate school holiday period commencing in December 2008 and for the second half of each intervening school holiday period commencing in January 2010;
(ii)the father for the second half of each alternate school holiday period commencing January 2009 and for the first half of each intervening school holiday period commencing in December 2008;
(f)each Easter period [Bella] shall live with;
(i)the father each alternate Easter from 3.00 pm on the Thursday immediately preceding Good Friday until 6.00 pm Easter Saturday commencing in 2008, and each intervening Easter period from 6.00 pm Easter Saturday until 9.00 am Easter Tuesday, commencing in 2009;
(ii)the mother each alternate Easter period from 6.00 pm Easter Saturday until 9.00 am Easter Tuesday, commencing in 2008, and each intervening Easter period from 3.00 pm on the Thursday immediately preceding Good Friday until 6.00 pm Easter Saturday, commencing in 2009;
(g)such further or other times as are mutually agreed between the parties.
9.The parent with whom [Bella] is not residing shall have telephone communication with her on two occasions each week between 5.00 pm and 6.00 pm on Wednesdays and Fridays. In the event that [Bella] is not available for telephone communication at those times, the parent with whom she is living shall ensure that [Bella] telephones the other parent on the following day.
10.In the event that changeover occurs on a day when [Bella] is not attending school, the changeover shall take place at the home of the mother’s grandparents, with both the mother and the father being at liberty to nominate any person or persons acceptable to themselves to attend on their behalf for the purposes of collecting or returning [Bella].
11.Each parent shall refrain from attending [Bella]’s school or at other places where she will be during the time she spends with the other parent pursuant to these orders unless that parent has been invited by the other parent to attend or unless the attendance is at an event at [Bella]’s school such as an assembly, concert, sports carnival or the like to which parents of other students are also invited.
12.The mother and the father each inform the other as soon as practicable of any hospitalisation, significant injury or health problems suffered and treatment received by [Bella] whilst she is in their care.
13.The mother and the father authorise and instruct each educational institution attended by [Bella], to release to the other such information regarding [Bella]’s progress as may be reasonably requested from time to time.
14.The mother and father authorise and instruct each medical practitioner or institution attended by [Bella] to release to the other such information regarding [Bella]’s medical and dental health as may be reasonably requested from time to time.
15.In the event the mother or the father wish to take [Bella] outside Western Australia or the Commonwealth of Australia:
(a)the departing parent must notify the other parent at least 90 days beforehand in respect of any proposed period, and;
(b)the departing parent must provide to the other parent:
(i)details of the period of proposed absence from Western Australia or the Commonwealth of Australia;
(ii)a copy of any proposed itinerary; and
(iii)the address and telephone number where [Bella] will be during any such period;
(c)any loss of time with the other parent as a result of the travel shall be made up 28 days prior to the travel or within 28 days of return.
16.The father shall be at liberty to nominate one extracurricular activity in which [Bella] is to be involved on one afternoon and one weekend day each week and the mother shall ensure that [Bella] attends that activity when [Bella] is with her.
17.The mother shall be at liberty to nominate one extracurricular activity in which [Bella] is to be involved on one afternoon and one weekend day each week and the father shall ensure that [Bella] attends that activity when [Bella] is with him.
18.All outstanding applications and responses be otherwise dismissed.
I certify that the preceding [170] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate