M and M

[2008] FCWAM 3

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150

TERRACE ROAD

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH CITATION : M and M CORAM : MORONI M

HEARD : 20 & 27 FEBRUARY 2008

DELIVERED : 14 MARCH 2008

FILE NO/S : PT 6799 of 2003

BETWEEN : M Applicant/Father

AND M

Respondent/Mother

Catchwords:

CHILDREN - proposed shared care of 7 year old child

Legislation:

Family Law Act 1975, s 60cc, s 65

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr W Allen
Respondent: Mr D Love

Solicitors:

Applicant: Allen & Jasnic
Respondent: Dean R Love

Case(s) referred to in judgment(s):

M and H [2008] FCWA 16

Introduction

1The proceedings for determination by the Court comprise a Form 1 application filed by the Applicant, [Mr M] on 14 September 2007 and a Form 1A response filed by the Respondent, [Mrs M], on 24 October 2007. These proceedings principally concern the long-term welfare of the parties’ youngest child, namely, [M] (born [in] December 2000).

Brief background

2The Applicant is a gentleman currently aged 35 years, living in [the Southern suburbs], who holds full-time employment as an electrical designer. The Respondent is a lady currently aged 37 years, also living in [the same suburb], and she holds part-time employment at [a nearby supermarket], working three part-days per week. The Respondent is otherwise fully engaged in the care of the three children in her household.

3 The parties were married [in] December 1992 and separated finally on

24 April 2002. The marriage was dissolved by divorce order pronounced on

4 March 2005.

4The marriage produced three children, namely, the child [M] referred to above, and his older siblings, namely, [P] (born [in] September 1993) and [S] (born [in] June 1995).

5It is common ground that since separation, apart from a six-month period commencing February 2007 when the child [M] lived with each of the parties on a “week-about” basis (about which more will be said below), the three children have lived primarily with the Respondent with the Applicant having reasonably regular contact with them. More will be said in due course regarding the Applicant’s contact with the children individually.

6The Applicant has re-married and currently he lives with his wife, [D]. They have the responsibility for fifty per cent of the care of [her] 8 year old daughter.

Orders sought

7 At Part F of his Form 1 application, the Applicant seeks the following orders:-

“1. That the Consent Orders pronounced 2 February 2004 be discharged.

2. That the children [P] born [in]1 September 1993 (“[P]”) and [S]

(“[S]”) born [in] June 1995 shall reside with the Mother.

3.That the child [M] (“[M]”) born [in] December 2000 shall reside with both the Mother and Father on a week-about basis from Sunday 5.00pm until Sunday 5.00pm on the next week.

4.The Mother shall deliver [M] to the residence of the Father at the commencement of his time with [M] and the Father shall deliver to the residence of the Mother at the commencement of her time with [M].

5.Both parents be jointly responsible for the long term decisions regarding the care, welfare and development of [P], [S] and [M].

6.That the Father shall have time with the children [P] and/or [S] at any time that both or either of [P] or [S] wish to spend time with the Father PROVIDED this is convenient for both the Mother and Father.

7.That the Father shall have time (sic) [P] and/or [S] on each of such child’s birthdays if either of the said children wish to have time with the Father on their birthday.

8.That on the birthday of [M] the parent with whom [M] is not residing shall have time with [M] from 6.00pm until 8.00pm.

9.That the Father shall have time with the children [P] and/or [S] on Father’s Day weekend from 5.00pm Saturday until 6.00pm Sunday subject to the wishes of [P] and [S].

10.That in the event the Father’s Day weekend falls on a week when [M] is residing with the Mother, the Father shall have time with [M] from 5.00pm Saturday until 5.00pm Sunday and there shall be no make-up time for the Mother with [M].

11.That in the event the Mother’s Day weekend falls on a week when [M] is residing with the Father, the Mother shall have time with [M] from 5.00pm Saturday until 5.00pm Sunday and there shall be no make-up time for the Father with [M].

12.That the Father shall have time with the children [P] and/or [S] from 4.00pm Christmas Day until 5.00pm 26 December subject to the wishes of [P] and [S].

13.That [M] shall reside with the Father from noon Christmas Eve to noon Christmas Day commencing 2007 and each alternate year thereafter.

14.That [M] shall reside with the Mother from noon Christmas Eve to noon Christmas Day commencing 2008 and each alternate year thereafter.

15.That each parent give the other a minimum of 30 days written notice of their intention to take one or more of [P], [S] and [M] for a holiday if such holiday reduces the time the other parent would have had with such child or children and the parties shall agree to make-up time.

16.That each party be restrained by injunction from relocating from Western Australia with any of the said children without Court Order or the consent in writing of the other parent.”

8In her Papers for the Judge filed 19 February 2008, the Respondent seeks the following orders:-

“1. That the children [P] born [in] September 1993 (“[P]”), [S] born [in] June 1995 (“[S]”) and [M] born [in] December 2000 (“[M]”) shall reside with the Mother.

2.That the Mother shall have responsibility for the day to day care, welfare and development of the children while they are in her care.

3.That the Father shall have responsibility for the day to day care, welfare and development of the children while they are in his care.

4. That the Father shall spend time with the children [P], [S] and/or

[M] from Friday 5.00pm until Saturday 6.00pm.

5.That the Father shall spend time with the children on the first and third weekend of every month from Friday 5.00pm until Sunday

6.00pm.

6.That the Father shall spend time with the children for half of the school holidays and Christmas holidays.

7.That the Father shall spend time with the children on each of their birthdays from 6.00pm to 8.00pm in the event that their birthday is mid-week.

8.That the Father shall spend time with the children on each of their birthdays from 6.00pm Saturday to 6.00pm Sunday in the event that their birthday is on a Saturday.

9.That the Father shall have time with the children on each of their birthdays from 5.00pm Friday to 7.00pm Saturday in the event that their birthday is on a Sunday.

10.That the Father shall have time with the children on Father’s Day from 5.00pm Saturday until 6.00pm Sunday.

11. That the Father shall spend time with the children on each

Christmas Day from 5.00pm until 8.00pm Boxing Day.

12.That for New Years Eve 2007 and News (sic) Years Day 2008, the Mother shall have time with the children and that for New Years Eve 2008 and New Years’ Day 2009, the Father shall have time with the children, alternating each year thereafter.

13.That each party shall give two weeks’ notice to the other of any intention to take the children on a holiday within the boundaries of Australia and overseas.

14.That the Mother shall give reasonable notice to the Father of any reason that may prevent the children from having time with the Father such as due to illness.

15.That the Father shall collect the children from the Mother’s residence and return the children to the Mother’s residence before and after each scheduled visit unless otherwise agreed.

16.That the Father be able to spend time with the children at any other times as may be agreed between the parties or as the children may wish provided it is convenient.”

9However, at the closing of her case, the Respondent proposed that all orders pertaining to the three children be expressed to be subject to their wishes.

The evidence

10 The first witness to step into the witness box was [Ms S] who is [M]’s teacher at [the local] Primary School. She was called out of order, with the consent of the parties. She attended the Court under a subpoena issued by the Applicant’s solicitors. The reason she was called by the Applicant was that it was expected by the Applicant that she would support that part of his case which is the subject of paragraphs 60 and

61 of his affidavit. In short, it is part of the Applicant’s case that prior to the six- month “week about” residence trial period which commenced on 4 February 2007, [M]’s behaviour at school was unsatisfactory but that it improved significantly during the trial period, only to regress following the conclusion of the trial period. That is to say, it is the Applicant’s case that [M]’s behaviour at school was significantly better during the six-month trial period and that the improvement was due to the increased involvement of the Applicant in [M]’s life and that the deterioration in his school behaviour evident in late 2007 was due to [M] not spending enough time with the Applicant. The Applicant’s purpose in calling [Ms S] was to support this aspect of his case.

11 [Ms S] told the Court she began her career as a primary school teacher in 1975.

She has taught at the [local] School for the last 13 years. She has always worked with children in the 4 to 6 year old age bracket. [M] commenced his pre-primary schooling in 2006, this involving full-time attendance at school 5 days per week. His teacher in

2006 was [Ms J]. [Ms M] was his teacher in 2007 and his teacher in 2008 is [Ms S]. Pre-primary and year 1 children are taught in combined classes of some 24 pupils. Generally, the mix is that 8 of such pupils will be pre-primary stage and 16 will be primary school age.

12 [Ms S] gave the Court to understand that unfortunately many of the pupils at the [local] Primary School are socially and otherwise disadvantaged and that there are several very difficult pupils at the school whose behaviour falls well short of acceptable standards. She made it clear that although [M]’s behaviour has, on

occasions, fallen to an unacceptable level, he is by no means the most difficult child of his age group and is, in fact, nowhere near the bottom of the range when it comes to appropriate standards of behaviour.

13 It would appear that during 2006 [M] and another child had been getting up to mischief in class and so it was decided that they would be separated in 2007. [Ms S] told the Court that she was aware that [M] had been placed in her class at the beginning of 2007 after he had misbehaved for his 2006 teacher. However, it would appear that [M] behaved, by and large, quite well for [Ms S] and that he did not cause her any great difficulty, certainly in the early part of 2007. [Ms S] confirmed that she did not know of [M]’s living arrangements when he came into her class in February

2007. That is to say, she was unaware that [M] had changed from living primarily with his mother to living week about with each parent.

14 [Ms S] told the Court of the meeting she had with the Applicant and his partner in April of 2007. It was a day scheduled for meetings between teachers and parents. [Ms S] thought that this meeting occurred in the first week of second term 2007. She recalls meeting with about 24 sets of parents and that each meeting probably lasted no longer than 10 minutes. It is not normal practice for teachers to keep notes of such meetings, which are intended to be informal get-togethers aimed at providing direct communication with parents regarding the progress of their children. Not surprisingly, [Ms S] does not have a specific recollection of the particular meeting with the Applicant. On the morning of the first day of the trial she was shown paragraphs 59 and 60 of the Applicant’s affidavit and she has also been shown annexure B to the Respondent’s affidavit (a copy letter from the Applicant to the Respondent in which reference is made to this meeting in April 2007). At this point it should be said that generally the Court has considerable sympathy for school teachers who are subpoenaed to give evidence in defended child welfare proceedings. Teachers generally are dedicated professionals whose principal focus is upon the welfare of the children under their direction. Teachers have ongoing relationships with the parents of such children and it places them in a very difficult position to have to present at Court in order to assist one parent to obtain Court orders over the objection of the other parent.

15 [Ms S] impressed the Court as a person of integrity, whose main concern has been [M]’s welfare. She also presented as a very agreeable type of person who would want to have good relations with all of the parents of her pupils. [Ms S] does not specifically recollect saying to the Applicant that [M]’s behaviour had improved and that this was due to the change in his living arrangements. Bearing in mind that [Ms S] did not even know what [M]’s living arrangements were in early 2007, other than that the child’s parents were separated, it seems to the Court to be unlikely that she would have said the words to the Applicant which are attributed to her in paragraph 60 of his affidavit and in annexure B to the Respondent’s affidavit. Whilst [Ms S] said that she probably referred to [M] as “an angel” (because she generally refers to her pupils as “angels”), she could not be sure that she made precisely the statement which is now being attributed to her by the Applicant. She conceded that although she may have agreed with the general proposition that children who come from happy and settled backgrounds are usually better behaved, she could not be sure that she said to the Applicant exactly the words now being attributed to her. The Respondent’s counsel, in cross-examination, put it to [Ms S] that what may have happened at the

meeting is that it was the Applicant himself who suggested that the improvement in [M]’s behaviour was due to the week-about trial arrangement, and that, as [Ms S] is a polite and agreeable person, she did not contradict the proposition.

16 [Ms S] told the Court that there was some deterioration in [M]’s behaviour towards the end of the 2007 school year in the sense of him becoming more unsettled and demanding more of her attention in class. Further, [M]’s work levels dropped off towards the end of the year. Unfortunately, there were two specific incidents of misbehaviour, one involving [M] smacking the hand of a teacher’s assistant and the other involving him in an incident in December 2007 with [a disabled female pupil]. It would appear that [M] hit the other child, and whilst this is not acceptable conduct, it does appear that the force was minor and that there was no injury caused to the female child. Neither of these incidents fell into the top end of the range of serious misconduct, but of course, all types of physical misbehaviour by pupils are unacceptable at the school. Whilst the parents of the other child and these parties were given notice of the incident, it would appear that no further action was necessary.

17 [Ms S] told the Court that her contact with the Applicant was restricted to the one meeting with him in April 2007. This is no doubt a reflection of the time constraints faced by the Applicant who has held down full-time employment throughout. Conversely, [Ms S] said that through 2007 she was in very frequent contact with the Respondent, often as much as three times per week. Otherwise, [Ms S] did recall that [M]’s behaviour deteriorated at a time when the Applicant was holidaying [overseas]. The Court is not sure exactly when this occurred but understands it to be in or about July 2007. It would seem that the Applicant was away for a little over three weeks. [Ms S] said that she thought [M] was unhappy at not being [overseas] with his father.

18 So what are the conclusions to be drawn from [Ms S]’s evidence? The first thing to say is that it should come as no surprise that the Court could not find that [Ms S]’s evidence corroborates either the contents of paragraph 60 of the Applicant’s affidavit or the contents of his letter comprising annexure B to the Respondent’s affidavit. Given that the Applicant did not give the Court any reason to believe that he would attempt to wilfully mislead the Court, the most likely take on the April 2007 meeting is that the Applicant himself honestly believed that [M]’s good form at school was due to his increased influence, that he said so to [Ms S], and that [Ms S] did not disagree with him. Obviously, [Ms S] would never have anticipated that this brief meeting would be the subject of such intense scrutiny in a Court of law some nine months after the event. Furthermore, [Ms S] did not herself teach [M] in 2006 and so she did not have any personal benchmark by which to measure his early 2007 behaviour. Whilst [M]’s behaviour may have trailed off somewhat late in 2007, there are many possible explanations therefore, apart from the fact that there was a change from the week-about arrangement. [Ms S] made the fairly obvious point which is that when parents are unsettled and unhappy, the behaviour of their children becomes unsettled and unhappy. It must be borne in mind that late 2007 marks the time when the parties were involved in litigation in the Court and this cannot have had a positive impact upon [M].

19 The final point to make about [Ms S]’s evidence is that she told the Court that she has spoken with [Ms J], [M]’s current teacher, regarding [M]’s current progress.

Although the school year has only recently commenced, [Ms J] has reported that [M] has settled well into school. There are no concerns regarding his current behaviour and by all accounts he is doing well. This part of [Ms S]’s evidence casts further doubt upon the Applicant’s thesis that there is a causal link between [M]’s good behaviour in the first part of 2007 and the week-about trial arrangement. That is to say, the evidence suggests that [M] is again doing well at school, notwithstanding the termination of the week-about trial arrangement in August of last year. There are many possible reasons why [M]’s behaviour at school has fluctuated through 2006,

2007 and into early 2008. There is the influence of other children to consider and there is the issue of the hostility between the Respondent and the Applicant (and his current wife). It seems to the Court that if the relationship between the Respondent and the Applicant (and his current wife) was to improve, then, most likely, [M] would become a happier, more settled child who did well consistently at school. Whilst the two particular incidents of physicality occurring in late 2007 are not to be trivialised, still it needs to be borne in mind that by and large [M]’s behaviour over the course of his schooling has been satisfactory.

20 Next there was the evidence of the Applicant himself. His case is that the law requires the Court to consider seriously his application for shared care of [M]. He points out that the parties live within a very short distance of each other in the same suburb, and therefore, from a practical viewpoint, there is the realistic option of shared care for [M]. He maintains that the child prospered under the shared care arrangement in place on a trial basis last year. So far as the two older children are concerned, he concedes that in view of their ages, they should spend time with him only according to their wishes. He does not seek any defined orders in relation to the two older children.

21 The Applicant stood by the contents of his affidavit filed 11 February 2008 and did not deviate from his evidence in any substantial way during the course of his cross-examination. It was suggested to him that his motivation in pursuing his application was:-

(a) a desire to minimise his child support liability; and

(b) jealousy arising from the fact that the Respondent entered into a relationship with another man in September of 2006 and that this man was seeing the three children more often than the Applicant.

22 The Court has no difficulty in rejecting both of the above suggestions. The Applicant said, and the Court accepts, that he does not know what difference there would be to his child support liability if his application was successful. In addition, there would, of course, be additional expense involved in having 50 per cent of the care of the child. The Court was left a long way short of being satisfied that the Applicant was motivated by any desire to reduce his financial commitment to the Respondent. As for the suggestion that the Applicant was jealous of another man having more frequent contact with the three children than the Applicant himself, it would appear that the relationship with this man came to an end some time ago. There

was nothing at all in the Applicant’s evidence to suggest anything other than him being motivated solely by a genuine belief that [M] would do better under the arrangement he proposes. The Applicant gave the Court no reason at all to doubt his sincerity.

23 Otherwise, the cross-examination of the Applicant was unremarkable. The

Applicant agreed that for the first year of [M]’s life he was away at sea for about

9 months. He did admit to terminating, for a very short time, payment of child support at a point in time when the Respondent refused to allow him to spend time with the children. Again, this is not a part of the evidence which will influence greatly the outcome of this case. Notwithstanding the Respondent’s complaints about the Applicant’s regularity with child support payments, the fact is that the Applicant is and has been at all material times a wage and salary earner and so responsibility for prompt collection of child support is a matter of responsibility for the Child Support Registrar. The evidence does not support the conclusion that the Applicant has ever materially and/or intentionally failed in his obligations to support his children.

24 There was also a suggestion put to the Applicant in cross-examination that he recently acquired a vacation property and some quad-bikes as part of a grand plan to “bribe” the children into his life. This suggestion was rejected by the Applicant and it is not accepted by the Court. There is no reason to believe anything other than that the Applicant wants to make the time he spends with the children as enjoyable for them as possible. It is difficult to see how he can be criticised in this respect.

25 The Applicant did concede that his only meeting with [M]’s teacher in 2007 was the 10-minute meeting in April of that year. He also conceded that he did not attend any teacher/parent meetings at all for [P] and [S] in 2007.

26 There was only one further issue of significance arising in the cross-examination of the Applicant and that involves the question of the Applicant’s present wife applying mild corporal punishment. The Respondent alleges that the Applicant’s present wife smacked [M] once when he was about 3 ½ years of age and that she also smacked [S]. The Applicant concedes that his present wife smacked [M] once when he was 18 months of age but he denies that his present wife has ever smacked [S]. The incidents in question are not particularly serious, which is not to say that the Court condones corporal punishment of any form. There is no suggestion that either child suffered any injury or long-term ill effects as a result of this incident or incidents. The most notable aspect of the evidence on this point was the Applicant’s statement in cross-examination that he did not consider it necessary to consult with the Respondent or obtain her consent to the application of corporal punishment by his present wife. Whilst this is not a major issue, as the incident or incidents were isolated and there is no reasonable likelihood of them being repeated, it does seem surprising to the Court that the Applicant would not think it necessary to talk to the Respondent about the subject of corporal punishment possibly being applied by his present wife. It would be fair to say that most parents would not be comfortable authorising the application of corporal punishment, even very mild corporal punishment, by a step-parent.

27 The final point to make about the Applicant’s evidence is that he told the Court briefly about the present state of his relationship with [S] and [P]. Unfortunately, the children are not spending as much time with him as would be desirable in the

circumstances. The Applicant said that prior to the commencement of the trial, [P] had visited him over three consecutive weekends. However, the visits have stopped. The Applicant does not propose to press the Court to make defined orders in respect of [S] and [P] and he is prepared to allow both children to have contact with him upon their terms.

28 Following the Applicant into the witness box was his present wife, [D]. Much of her evidence was concerned with her relationship with all three children, particularly the two eldest children. It is clear that there is a significant degree of antagonism as between her and the Respondent. Each of the ladies appears to blame the other for the poor state of their relationship. [D] considers that she has been unfairly maligned to the children by the Respondent and that as a consequence her relationship with the children is not as good as it could be. [D] obviously considers that she has been unfairly painted by the Respondent as the person responsible for the breakdown of the marriage of the Applicant and Respondent. There has been a number of unpleasant incidents and there is evidence of unfortunate language passing as between the two households. Whilst this hostility could not possibly serve to advance the best interests of any of the children, it does have to be said that the level of animosity does not sit anywhere near the top end of the range in similar cases coming before the Court. That is to say, whilst the animosity between the Respondent on the one hand and the Applicant and [D] on the other hand is most unfortunate, it is unlikely to have scarred the children permanently. One would hope that with the passage of time, there will be a cooling of feelings. Otherwise, the cross-examination of [D] did not produce any material departure from the contents of her affidavit of evidence-in-chief.

29 The final witness to give evidence was the Respondent. Again it has to be said that her cross-examination did not produce any material departure from the contents of her affidavit of evidence-in-chief. She was steadfast in her view that the operation of the six-month week-about trial in 2007 did not serve to advance [M]’s interests. She said that he did not cope well with the trial. She said that after spending the week away from her he would become very “clingy” during the week in her care. She said that the child took to sleeping in her bed and smelling her clothes.

30 It is clear that the Respondent has had a very close involvement with [M]’s school and teachers. She considers that she has done a good job attending to [M]’s educational and health needs. She is keen to continue to fulfil this role. She said also that [M] no longer needs to attend upon a speech therapist. The Respondent totally rejects the Applicant’s contention that [M]’s good behaviour at school in the first half of the 2007 school year should be attributed to the trial week-about arrangement. She said, and the Court has already accepted, that [M]’s behaviour at school is generally quite satisfactory and that he is by no means the worst behaved pupil at school. She did point out that [M] is again doing well at school in 2008, notwithstanding the termination of the trial week-about arrangement.

31 The Respondent presented to the Court as a witness of truth. The fact that the Respondent was prepared to trial for six months a week-about arrangement says to the Court that she has demonstrated considerable good faith. There was no compulsion upon her to agree to the trial period and the Court is satisfied that if she genuinely believed the trial arrangement was working well for [M], then she would have

continued with it. By and large the Court has no difficulty in accepting the majority of the Respondent’s evidence, particularly as it concerns [M]’s behaviour with her during the six-month trial period. The only concern the Court has with the Respondent’s evidence relates to her conflict with the Applicant and [D], driven by her belief that [D] is responsible for the breakdown of the marriage and her belief that [D], as her former friend, behaved dishonourably. The Court wishes to make it clear that it does not propose to make any findings regarding the precise timing of the formation of the relationship between the Applicant and [D], nor does it intend to apportion any blame for the occurrence of the various unpleasant incidents between the adults which are recorded in the affidavit material. There is simply no purpose to be served in so doing. The important message for the parties is that it will not benefit the children to witness any further hostility between the three principal adult figures in this case.

The applicable law

32 The legal principles which apply in cases of this nature were summarised by the Chief Judge of the Family Court of Western Australia in M and H [2008] FCWA 16. Although the case referred to immediately above was decided under the Family Court Act 1997, rather than the Family Law Act 1975, the same principles apply in the present case. At paragraphs 108-117, His Honour said as follows:-

“108 These 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 Mallett v Mallet (1984) FLC 91-507; (1984) 156 CLR 605, and

ZP v 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.

114 The 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 [D] and [H] have equal shared parental responsibility, I would then be obliged by s 89AA to consider whether or not [B] 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), [B]’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 [B]’s “daily routine” and in occasions and events that are of “particular significance” to [B]. Finally, the time must also allow [B] 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 [B]’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

33 The Court turns first to the primary considerations.

The benefit to the child of having a meaningful relationship with both of the child’s parents

34 It would be fair to say that the linchpin to the Applicant’s case is this primary consideration. The Applicant contends that the best way for [M] to have a meaningful relationship with both parties is for him to live week about with each of them. For her part, the Respondent contends, with some force, that a meaningful relationship between [M] and the Applicant can be achieved under her proposal. That is to say, she says that under her proposal [M] would spend 50 per cent of his school holidays with the Applicant and 75 per cent of all weekends with the Applicant. She says that what she is proposing would result in [M] spending considerable quantities of quality time with the Applicant, that is to say, time which does not fall within the rigours of a school-day routine. The Court is bound to say that whilst it accepts that generally relationships are built on time spent together, it is not necessary for a parent to spend exactly the same time with a child as the other parent spends in order to have a “meaningful relationship” with a child.

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

35 This particular statutory provision does not cause the Court any difficulty. The Court is abundantly satisfied that adopting either of the proposals of the parties would not lead to [M] being subjected to, or exposed to, any forms of the harm referred to above.

Additional considerations

36 The Court now turns 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

37 [M] is only just 7 years of age. Both parties probably hold very different beliefs of what it is that [M] actually wants. However, in the Court’s view, he is simply too young for his wishes (whatever they may be) to be given any great weight.

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)

38 [M] obviously has a very good relationship with both of the parties. However, having said that, it is clear that for most of [M]’s life he has been cared for by the Respondent. Given his age, it is likely that he is bonded more closely with the parent who has provided the majority of his needs, and clearly that person is the Respondent.

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

39 It is indeed unfortunate that there remains a significant degree of hostility as between the Respondent on the one hand and the Applicant and [D] on the other. Sadly, it would appear that both [S] and [P] have been caught up in this conflict and that as a consequence thereof their relationship with the Applicant has suffered. Insofar as [M] is concerned, he was probably too young at the time of the separation to be adversely impacted by the conflict. Since the breakdown of the marriage, the Respondent has said that she formed one relationship of significance with another gentleman and said that she has gone out with other people. This would suggest that the Respondent is getting on with her life, as she should. Hopefully, with the passage of time, the relationship between the Respondent and the Applicant will improve. The Court is reasonably confident that no matter which order it makes, both of the parties could be trusted to promote the relationship between [M] and the other party.

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

40 It is under this heading that the Respondent made a strong plea to the Court to consider the effect the Applicant’s proposal, if implemented, would have upon [P] and [S]. The Court accepts that there is a normal loving relationship between [M] and his two siblings. Hopefully, the relationship between the Applicant and [P] and [S] will improve with time, however, this is no certainty and it appears most unlikely that [P] and [S] will be spending 50 per cent of their time with the Applicant. So, there is little

doubt that one of the effects of placing [M] with the Applicant and the Respondent on a week-about basis would be to reduce dramatically the time available to him to spend with his siblings. The Court regards this as a major negative in the Applicant’s case.

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

41 As the parties reside in close proximity to each other, if a shared care regime was ordered, then there are no practical reasons standing in the way of the Applicant’s proposal. There would be no need to change the child’s 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

42 The Court is abundantly satisfied that, subject to the following qualification, both parties have the capacity to provide properly for all of [M]’s needs. The Court considers both parties to be good parents and good people (even if the parties themselves are not so convinced). The one significant advantage enjoyed by the Respondent under this head is that she works part time, whereas the Applicant works full time. This practical advantage leaves her better placed to provide for [M]’s needs, simply because she is able to be present with him to deliver on such needs. This is particularly so in relation to his educational needs. The evidence has demonstrated that it has been the Respondent who has been principally involved at [M]’s school and with his teachers. This is in no way intended to be any criticism of the Applicant. He presents as a hard worker and his family has benefited as a consequence of his efforts in the workforce. However, he is not able to be present in two places at once.

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

43 This factor is not relevant in this case.

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

44 The Court finds that both the parties have adequately discharged their respective responsibilities as parents. The only concern held by the Court is that the parties might have done more to shield the children from exposure to the conflict between the two households. That said, the Court repeats its message to the parties that they must do all things reasonably necessary to prevent the children from becoming further caught up in the hostility which appears to have bubbled to the surface on a reasonably regular basis.

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

45 This is not a relevant consideration in the circumstances of this case.

Any family violence order that applies to the child or a member of the child’s family

46 This is not a relevant consideration in the circumstances of this case.

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

47 [M] is only just 7 years of age. Whilst it is to be hoped that in future the parties will be able to resolve any disputes between them regarding his welfare, without the need of incurring the high costs of litigation, the fact is that child welfare orders are never set in stone. Regardless of the choice now to be made by the Court, there will remain some prospect of further litigation between the parties as [M] becomes older.

Discussion and conclusion

48 The determination of every child welfare dispute requires the Court to weigh up objectively all of the evidence and all of the primary and additional considerations under section 60CC. In this case most of those considerations are fairly evenly balanced. However, there are four factors which tip the scales in favour of the Respondent’s proposal, being, in no particular order:-

(a) Implementing the Applicant’s proposal would result in [M] spending much less time with his siblings than hitherto. The Court is concerned that [M]’s welfare would be adversely impacted by permanent lengthy absences from his siblings. The evidence does not satisfy the Court that it is necessary for him to be so separated from his siblings in order to have a meaningful relationship with the Applicant.

(b) It is likely that [M] is more closely bonded to the Respondent than to the Applicant, simply because she has been his primary caregiver. The Court accepts the Respondent’s evidence that the child did not manage well his week-long separations from her during the 2007 trial period, in the sense that he had difficulty managing permanent week-long absences from the Respondent’s care.

(c) The Respondent has a slight advantage over the Applicant in terms of care-giving capacity, simply because she is not, and has not, been working full time as he has.

(d) The evidence of [Ms S] that [M] is doing well at school in 2008 is compelling. The evidence generally suggests that [M] is progressing well under the current arrangements. The evidence

generally falls well short of satisfying the Court that changing the current arrangements is likely to lead to an uplift in [M]’s wellbeing.

49 Conversely, in the Court’s view, there are no section 60CC(3) factors which actually favour the Applicant. There are some factors which are evenly balanced, but there are none which positively advance the Applicant’s case.

Orders

50 Subject to hearing from counsel, the Court would propose to make the following orders:-

1.The parties have equal shared parental responsibility for the three children of the marriage, namely [P] born [in] September 1993, [S] born [in] June 1995 and [M] born [in]December 2000.

2. The said children live with the Respondent, [Ms M]

3. The said children [P] and [S] spend time with the Applicant,

[Mr M], in accordance with their wishes.

4.The said child, [M], spend one half of all school holiday periods with the said Applicant and spend alternate weekends with him from 5.00pm Friday to 6.00pm Sunday and intervening weekends with him from 5.00pm Friday to 6.00pm Saturday.

5. The said proceedings otherwise be and are hereby dismissed.

51 If the parties consider it necessary for more detailed orders to be made in respect of special issues, then the Court will hear from their counsel. Otherwise, the parties may have general liberty to apply in respect of special occasions, holiday travel arrangements and any other specific parenting issues not capable of agreement.

I certify that the preceding [51] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Secretary