MADDEN & MURDOCK - [2011] FMCAfam 60

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MADDEN & MURDOCK

[2011] FMCAfam 60

FAMILY LAW – Parenting – equal shared parental responsibility sought by both parents – consideration of whether appropriate when finding made as to domestic violence – order for equal shared parental responsibility and consideration of practicability of quality time or substantial and significant time – consideration of factors influencing a closely balanced decision.

Family Law Act 1975, ss.4, 60CA, 60CC(1)-(5), 61C, 61B, 61D(1)-(2), 61DA(2), (4), 65DAE(1)-(3), 65DAC, 65DAA(1)-(5)

Jones v Dunkel (1959) 101 CLR 298
Lansa & Clovelly [2010] FamCA 80

Applicant:

MR MADDEN

Respondent:

MS MURDOCK

File Number:

ROC 646 of 2009

Judgment of:

Coker FM

Hearing dates:

2 & 3 December 2010

Date of Last Submission:

3 December 2010

Delivered at:

Townsville

Delivered on:

21 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Hammond

Solicitors for the Applicant:

O’Shea & Dyer

Counsel for the Respondent:

Ms Hogan

Solicitors for the Respondent:

P W Skewes & Dempster

ORDERS

That the child, [X] born [in] 2006, live with the father.
That the mother and father be responsible for the day-to-day care, welfare and development of the said child during the periods that the child is in their respective care.
That the mother and the father are to have equal shared parental responsibility for the major long term issues of the child including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties are to consult with each other about decisions to be made in exercise of their equal shared parental responsibilities as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on the terms that they agree;
(c)They shall make a genuine effort to come to a joint decision;
(d)Failing agreement shall attend at a mediation centre such as Relationships Australia, Centacare or Family Relationships Centre.
That the child spend time with the mother at all times as may be agreed between the parties and failing agreement as follows:
(a)From Thursday 20 January 2011 until Sunday 23 January 2011 and, thereafter, on the third weekend of January in 2012 and each year thereafter;
(b)For the third weekend in February 2011 (being from Friday 18 February 2011 to Sunday 20 February 2011) and in each year thereafter;
(c)For the third weekend in March 2011 (being from Friday 18 March 2011 to Sunday 20 March 2011) and in each year thereafter;
(d)For the third weekend in May 2011 (being from Friday 20 May 2011 to Sunday 22 May 2011) and in each year thereafter;
(e)From Friday 10 June 2011 to Monday 13 June 2011 (being the Queen’s Birthday weekend) and on each Queen’s Birthday weekend in each year thereafter;
(f)For the third weekend in July 2011 (being from Friday 22 July 2011 to Sunday 24 July 2011) and in each year thereafter;
(g)For the third weekend in August 2011 (being from Friday 19 August 2011 to Sunday 21 August 2011) and in each year thereafter;
(h)On the third weekend in October 2011 (being from Friday 21 October 2011 to Sunday 23 October 2011) and in each year thereafter;
(i)On the third weekend in November 2011 (being from Friday 18 November 2011 to Sunday 20 November 2011) and in each year thereafter;
(j)On the weekend during which Mother’s Day occurs (being from Friday of that weekend until the Sunday evening of Mother’s Day should [X] not otherwise be spending time with his mother in accordance with these orders);
(k)For the entirety of the Easter school holiday period in each year;
(l)For the entirety of the June/July school holiday period in each year;
(m)For the entirety of the September/October school holiday period in each year;
(n)For 4 weeks of the December/January school holiday period in each year (which includes Christmas Day and Boxing Day) being the first 4 weeks in even numbered years and the last 4 weeks in odd numbered years.
That (save for the months of December and January in each year), in addition to the time provided for in paragraph 5 above, upon the mother providing to the father no less than 21 days’ notice in writing of her intention to be in [W] during a weekend period, the child spend time with the mother in [W] or its environs on one weekend each month from after school on Friday until the commencement of school on Monday morning, with the mother to collect the child at the commencement of the time from school and return the child to school at the conclusion of the time.
That despite the terms of paragraphs 5 and 6 above, the time that the mother spends with the child be limited to two (2) weekends in each calendar month, and to one weekend in the months in which the child will spend time during the school holidays with the mother.
That despite the terms of paragraphs 5 and 6 above, [X] shall remain living with his father on the weekend during which Father’s Day occurs in each year.
That the operation of paragraphs 5(a) and 5(i) shall be suspended during any school holiday period when [X] is living with the father pursuant to this order;
That unless otherwise agreed changeovers occur at 5:00pm at [park omitted], Longreach.
That unless otherwise agreed, each parent have telephone communication with the child when he is not in their care on Monday, Wednesday and Friday at 7:00pm, with the parent not having the child in their care to be responsible for the making of the call to the other parent and the parent having the child in their care to ensure that the child is available to speak with the other parent in a quiet and private environment.
That both parties keep the other informed of their residential and work address and emergency telephone numbers and notify each other of any change in this information within 48 hours and that for the purpose of communicating with the child, the parties provide each other with their landline telephone number.
That the parties be restrained and an injunction issue restraining them from denigrating the other or the other parties’ family in the presence of the child or from allowing the child to remain in the presence of any person acting in such a manner.

IT IS NOTED that publication of this judgment under the pseudonym Madden & Murdock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

ROC 646 of 2009

MR MADDEN

Applicant

And

MS MURDOCK

Respondent

REASONS FOR JUDGMENT

These proceedings relate to orders sought with regard to the parenting of the child, [X]. [X] was born [in] 2006 and therefore will shortly be five years of age. [X] is the child of the relationship between

Mr Madden, whom I shall refer to as the father, and Ms Murdock, whom I shall refer to as the mother. The father instituted the proceedings in this matter in November of 2009.
It is clear, therefore, that within a year the matter has progressed from the initial institution of proceedings to the final determination in respect of the matter. I make that comment because the impression that I got during much of the evidence in relation to this matter is that there is still, as between both parents, some degree of hurt emanating from the separation and that that in some ways has been reflected in the statements they have made and the evidence they have given. I shall comment upon those aspects of the matter a little later in these reasons.
At the commencement it is important, also, that I should note that there is an extreme difficulty arising in relation to this matter from primarily, the fact that both the mother and the father are no doubt, excellent parents. The report writer, Ms P, in fact commented that were it not for the geographic considerations that arise in relation to the matter, the father living in the [W] area, and the mother living in the [B] area, some 300 kilometres or so apart, that this would be in many respects an excellent example of a matter in which equal shared parental responsibility and equal time would be an appropriate arrangement.
Since orders were made in May of 2010, there has been such an arrangement, which has operated for about six months, and whilst there has been significant travel and that has meant that [X] has moved between each household each two weeks, the child appears to have thrived and both parents have acknowledged that he copes with the travel though, of course, that will be impossible once school is commenced more particularly however it has given the child the opportunity to experience the different lifestyles that each parent is able to offer and to ensure that the relationship with both parents has been able to be fostered and developed.
In fact, the orders that both the mother and the father seek in relation to this matter are in many respects a mirror image of each other. The final orders sought by the father are in these terms:
1. The child [X] [born in 2006] live with the father.
2. That the mother and father be responsible for the day-to-day care, welfare and development of the said child during the periods that the child is in their respective care.
3. That the mother and the father are to have equal shared parental responsibility for the major long term issues of the child including but not limited to:
(a) a child’s education (both current and future);
(b) a child’s religious and cultural upbringing;
(c) a child’s health;
(d) a child’s name;
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
4. The parties are to consult with each other about decisions to be made in exercise of their equal shared parental responsibilities as follows:
(a) They shall inform the other parent about the decision to be made;
(b) They shall consult with each other on the terms that they agree;
(c) They shall make a genuine effort to come to a joint decision;
(d) Failing agreement shall attend at a mediation centre such as Relationships Australia or Centrecare or Family Relationships Centre.
5. That the child spend time with the mother at all times as may be agreed between the parties and failing agreement as follows:
(a) From Thursday 20 January 2011 until Sunday 23 January 2011 and, thereafter, on the third weekend of January in 2012 and each year thereafter;
(b) For the third weekend in February 2011 (being from Friday 18 February 2011 to Sunday 20 February 2011) and in each year thereafter;
(c) For the third weekend in March 2011 (being from Friday 18 March 2011 to Sunday 20 March 2011) and in each year thereafter;
(d) For the third weekend in May 2011 (being from Friday 20 May 2011 to Sunday 22 May 2011) and in each year thereafter;
(e) From Friday 10 June 2011 to Monday 13 June 2011 (being the Queen’s Birthday weekend) and on each Queen’s Birthday weekend in each year thereafter;
(f) For the third weekend in July 2011 (being from Friday 22 July 2011 to Sunday 24 July 2011) and in each year thereafter;
(g) For the third weekend in August 2011 (being from Friday 19 August 2011 to Sunday 21 August 2011) and in each year thereafter;
(h) On the third weekend in October 2011 (being from Friday 21 October 2011 to Sunday 23 October 2011) and in each year thereafter;
(i) On the third weekend in November 2011 (being from Friday 18 November 2011 to Sunday 20 November 2011) and in each year thereafter;
(j) On the weekend during which Mother’s Day occurs (being from Friday of that weekend until the Sunday evening of Mother’s Day should [X] not otherwise be spending time with his mother in accordance with these orders);
(k) For the entirety of the Easter school holiday period in each year;
(l) For the entirety of the June/July school holiday period in each year;
(m) For the entirety of the September/October school holiday period in each year;
(n) For 4 weeks of the December/January school holiday period in each year (which includes Christmas Day and Boxing Day) being the first 4 weeks in even numbered years and the last 4 weeks in odd numbered years.
6. That (save for the months of December and January in each year), in addition to the time provided for in paragraph 5 above, upon the mother providing to the father no less than 21 days’ notice in writing of her intention to be in [W] during a weekend period, the child spend time with the mother in [W] or its environs on one weekend each month from after school on Friday until the commencement of school on Monday morning, with the mother to collect the child at the commencement of the time from school and return the child to school at the conclusion of the time.
7. That despite the terms of paragraphs 5 and 6 above, the time that the mother spends with the child be limited to two (2) weekends in each calendar month, and to one weekend in the months in which the child will spend time during the school holidays with the mother.
8. That despite the terms of paragraphs 5 and 6 above, [X] shall remain living with his father on the weekend during which Father’s Day occurs in each year.
9. The operation of paragraphs 5(a) and 5(i) shall be suspended during any school holiday period when [X] is living with the father pursuant to this order;
10. That unless otherwise agreed changeovers occur at 5:00pm at [park omitted], Longreach.
11. That unless otherwise agreed, each parent have telephone communication with the child when he is not in their care on Monday, Wednesday and Friday at 7:00pm, with the parent not having the child in their care to be responsible for the making of the call to the other parent and the parent having the child in their care to ensure that the child is available to speak with the other parent in a quiet and private environment.
12. That both parties keep the other informed of their residential and work address and emergency telephone numbers and notify each other of any change in this information within 48 hours and that for the purpose of communicating with the child, the parties provide each other with their landline telephone number.
13. That the parties be restrained and an injunction issue restraining them from denigrating the other or the other parties’ family in the presence of the child or from allowing the child to remain in the presence of any person acting in such a manner.
The mother’s proposed orders are similarly as follows and they are set out in the case outline prepared on behalf of the mother and filed on 30 November 2010.
1. That the mother and the father have equal shared parental responsibility for the major long term issues of the child, [X], born [in] 2006, including but not limited to:
(a) education (both current and future);
(b) religious and cultural upbringing;
(c) health;
(d) name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
2. That the mother and father consult with each other about decisions to be made in the exercise of the equal shared parental responsibilities as follows:
(a) They shall inform the other parent about the decision to be made;
(b) They shall consult with each other on the terms that they agree;
(c) They shall make a genuine effort to come to a joint decision; and
(d) Failing agreement shall attend at a mediation centre such as Relationships Australia or Centacare or Family Relationships Centre.
3. Notwithstanding Order 2 herein:
(a) The mother shall be responsible for the daily care, welfare and development of the child whilst he is living with or spending time with her; and
(b) The father shall be responsible for the daily care, welfare and development of the child whilst he is living with or spending time with him.
4. That the child [X], born [in] 2006, live with the mother.
5. That the child spend time with the father at all times as may be agreed between the parties and failing agreement as follows:
(a) From Thursday 20 January 2011 until Sunday 23 January 2011 and, thereafter, on the third weekend of January in 2012 and each year thereafter;
(b) For the third weekend in February 2011 (being from Friday 18 February 2011 to Sunday 20 February 2011) and in each year thereafter;
(c) For the third weekend in March 2011 (being from Friday 18 March 2011 to Sunday 20 March 2011) and in each year thereafter;
(d) For the third weekend in May 2011 (being from Friday 20 May 2011 to Sunday 22 May 2011) and in each year thereafter;
(e) From Friday 10 June 2011 to Monday 13 June 2011 (being the Queen’s Birthday weekend) and on each Queen’s Birthday weekend in each year thereafter;
(f) For the third weekend in July 2011 (being from Friday 22 July 2011 to Sunday 24 July 2011) and in each year thereafter;
(g) For the third weekend in August 2011 (being from Friday 19 August 2011 to Sunday 21 August 2011) and in each year thereafter;
(h) On the third weekend in October 2011 (being from Friday 21 October 2011 to Sunday 23 October 2011) and in each year thereafter;
(i) On the third weekend in November 2011 (being from Friday 18 November 2011 to Sunday 20 November 2011) and in each year thereafter;
(j) On the weekend during which Father’s Day occurs (being from Friday of that weekend until the Sunday evening of Father’s Day should [X] not otherwise be spending time with his father in accordance with these orders);
(k) For the entirety of the Easter school holiday period in each year;
(l) For half of the June/July school holiday period in each year being the first half in odd numbered years and the second half in even numbered years;
(m) For the entirety of the September/October school holiday period in each year;
(n) For half of the December/January school holiday period in each year (which includes Christmas Day and Boxing Day) being the first half in odd numbered years and the second half in even numbered years.
6. That (save for the months of December and January in each year), in addition to the time provided for in paragraph 5 above, upon the father providing to the mother no less than 21 days’ notice in writing of his intention to be in [B] during a weekend period, the child spend time with the father in [B] or its environs on one weekend in each school term from after school on Friday until the commencement of school on Monday morning, with the father to collect the child at the commencement of the time from school and return the child to school at the conclusion of the time.
7. That, despite the terms of paragraphs 5 and 6 above, the time that the father spends with the child be limited to two (2) weekends in a calendar month, and to one weekend in the months in which the child will be spending time during school holidays with the father.
8. That, despite the terms of paragraphs 5 and 6 above, [X] shall remain with his mother on the weekend during which Mother’s Day occurs in each year.
9. The operation of paragraphs 5(a) and 5(i) shall be suspended during any school holiday period when [X] is living with the Mother pursuant to this Order.
10. That unless otherwise agreed changeovers occur at 5:00pm at [park omitted], Longreach.
11. That unless otherwise agreed, each parent have telephone communication with the child when he is not in their care on Monday, Wednesday and Friday at 7:00pm, with the parent not having the child in their care to be responsible for the making of the call to the other parent and the parent having the child in their care to ensure that the child is available to speak with the other parent in a quiet and private environment.
12. That both parties keep the other informed of their residential and work address and emergency telephone numbers and notify each other of any change in this information within 48 hours and that for the purpose of communicating with the child, the parties provide each other with their landline telephone number.
13. That the parties be restrained and an injunction issue restraining them from denigrating the other or the other parties’ family in the presence of the child or from allowing the child to remain in the presence of any person acting in such a manner.

As can be seen from these two outlines, both parents propose that there should be equal shared parental responsibility. It is supported by the report writer, Ms P, and in fact each parent then goes on at particular length to detail the proposals in relation to the additional time that they say should be spent in the other parent’s house. Both detail at length the arrangements in relation to the weekends that might be able to be spent by the child with the parent not having the child living with them and they are virtually a mirror image of each other. Additionally, they then go on to propose arrangements in relation to the Easter school holiday period which is identical and for the entirety of the September/October school holiday period in each year.
A small difference arises, in that the father proposes that the mother should have the entirety of the June/July or mid-year school holiday period whilst the mother says that that should be shared between the parents and the father proposes that the mother should have four weeks of the end of year December/January school holiday period in each year whilst the mother says that it should be an equal division. The difference is minimal and reflects the importance that both parents place upon the need to ensure that there is significant and substantial time spent within the other parent’s household.
Thereafter, there is agreement also in relation to arrangements with regard to communication and handover arrangements as well as an obligation placed upon both parties to ensure that the other is informed of their residential and work addresses, telephone communication numbers, particularly in situations of emergency, and a restraint is sought by both such that the other party would not denigrate the other parent in the presence of the child or allow the child to remain in the presence of any other person acting in a similar manner.
The fact is that there are virtually identical arrangements proposed with regard to the parenting of this child other than the issue of with whom the child lives.
I had the opportunity of seeing each of the parents and, of course, their various supporters in the determination of this matter. I am reminded of the advice given to me many years ago relating to the difficulties in relation to determinations that are called upon to be made by courts hearing matters pursuant to the Family Law Act and of the fact that the most difficult of those cases are where there is little of a controversial nature, in relation to each of the parents.
In fact, counsel for the father, at the commencement of his address to me at the conclusion of the hearing, specifically made reference to the fact that this child, [X], is a fortunate child in that both parents and extended families care for him and love him dearly. He reiterated the indication of the report writer, that if the parties were, in fact, living nearby to each other, that equal time would be the likely outcome of any determination.
Therefore, the process here should not be a consideration of what might be found to be poor or of lesser quality in one household than the other, but rather a positive investigation of what situation offers the greatest advantages to the child and, therefore, the best opportunity for the child to achieve all that is open to the child. I could not agree more and must say that I have found this an enormously difficult matter to finally reach a decision in.
As I say, I had the opportunity to see the parents and the various other witnesses called in relation to this matter. To a man and a woman they were of a generally impressive nature though, of course, as is often the case, there are perhaps some differences or concerns that arise, in relation to any witness. In respect of the father’s witnesses, I had the opportunity to read the affidavit filed by his partner, Ms C, and also to see Ms C cross-examined, albeit briefly, in relation to her evidence.
Ms C impressed me as a mature and sensible young woman who, understandably, was supportive of the father in these proceedings. She and the father have been in a relationship for some time now and, in fact, have a daughter, [Z] born only some few months ago, on [date omitted] 2010. Ms C made reference to the quality of the relationship that she saw between the father and [X], and also specifically made reference to the quality of the relationship that she observed as between [X] and his paternal grandfather.
At paragraph 5 of her affidavit she says:
[X] has a very special relationship and bond with both

Mr Madden’s father and mother. Mr Madden’s mother Ms M has been renovating the house where Mr Madden and I live with the children and [X] loves being Ms M’s offsider. When at the property [X] follows his grandfather Mr M around trying to copy everything that Mr M does. [X] loves being on his little 4 wheeler while Mr M is on his 4 wheeler and likes to think he helps Mr M with the sheep in the yard.
It is important that there be that notation in relation to this matter because there were certain criticisms of the fact that Mr M was not called to give evidence in relation to this matter. I will comment a little further in relation to that aspect of the matter during these reasons.
Ms C was specifically cross-examined in relation to only two real issues that arose from her evidence. The first of those related to whether there was a discussion or conversation between Ms C and the mother and maternal grandmother in the latter part of 2008. Ms C acknowledged that that had occurred and was specifically asked whether the maternal grandmother had referred, in that conversation, to bruises that had been seen on the mother’s arms. Ms C specifically denied that any such discussion occurred of that nature and was adamant that that was the case.
Similarly, Ms C was asked whether, in fact, the conversation, at least in those respects occurred, and she denied that there was any such conversation in relation to the physical injuries that were purported to have occurred to the mother.
It is a difficult determination in relation to this matter other than to say that the mother and maternal grandmother say that such a conversation occurred and the evidence of Ms C was that, at least, those aspects of the conversation were not discussed. For reasons that will arise as a result of other comments that I will make with regard to the mother and the maternal grandmother, I must say that I am more inclined to accept the evidence of Ms C in relation to this matter, and therefore accept that there was no specific discussion relating to such issues.
Ms C, also, was asked about issues with regard to the alleged significant alcohol consumption by the father. Ms C gave evidence in relation to the matter and acknowledged that she had indicated that the father might have consumed two or three standard drinks, two or three times per week and she confirmed that that was the case. She was not challenged in relation to that evidence but rather was simply asked whether, if the father were drinking much more, including perhaps as much as the mother suggested he had drunk during their relationship, that it would be an issue and Ms C indicated that that would properly be the case.
I accept Ms C’s evidence in relation to the actual consumption of alcohol by the father at the present time and, of course, in the relationship that they are in and note that she was not in any real way challenged in respect of that evidence. Otherwise, I must say that I accept the evidence of Ms C, particularly with regard to her observations of the father and his extended family and especially with regard to the relationship with [X] and herself as well as her child, [Y], who is 10 years of age. Ms C, I thought, was an honest, open and frank witness.
I also had the opportunity of reading the affidavit of Ms M, the paternal grandmother, and also seeing Ms M, again, only for a short time, in the witness box. Ms M was questioned particularly about issues with regard to comments that might have been made by [X] and she was asked whether some of the things that he had said to his maternal mother might be taken with what is referred to as, “a grain of salt”. The maternal grandmother indicated that that was the case and acknowledged that a young child could certainly say things that were not in any way an accurate reflection of what might or might not have occurred at another parent’s or family member’s household.
I accept that that was the case and also accept, as is always the case, that there is generally a predilection on the part of parties to proceedings to accept that things that are said by a child to them are more likely to be true than things that are said to have been said by a child in the other parent’s household. The acknowledgement, however, given at the commencement of cross-examination that [X] does say some things, probably in both households, which are inaccurate or exaggerations is a positive reminder of the fact that certain statements made by a child need to be taken in light of their maturity and the obvious desire of children to please one, or even both of their parents.
Ms M was asked specifically about issues with regard to inappropriate language used within her household, and she made some frank admissions as to certain language used within the household and certainly language used by the father. She said that she had not heard certain terms used, certainly, in an abusive manner but that on other occasions, words had been used and whilst not used in [X]’s presence, it was quite possible that they may have been overheard by the child and that that was inappropriate. She also noted that there were occasions when there were steps taken to ensure that the child, [X], was corrected when language of that nature was used by him. I accept Ms M’s evidence in relation to such issues.
Ms M was also cross-examined about a conversation that the mother says occurred between she and the paternal grandmother relating to the father’s behaviour to her and, similar to that evidence given by Ms C, the paternal grandmother indicated that it was not a situation of such a discussion having occurred. She did say, however, that there was at least some grain of truth in relation to a discussion in that, whilst she denied that there was discussion about directive or controlling behaviours on the part of the father, Ms M did say that there had been a general discussion, where she had made a comment relating to her husband, saying that he didn’t want her to work but that she still did work.
For the same reasons that I referred to previously in relation to the evidence of Ms C, I am inclined very much to believe and to accept the evidence of Ms M in relation to what might or might not have been the thrust of the discussions held in relation to this matter.
I was generally impressed with the evidence of Ms M though, as I indicated previously, I must say that there is a general expectation that parties supporting one person or the other in relation to proceedings before the Court, would be inclined to be supportive of the evidence of that party, rather than the other parent.
Insofar as the mother’s evidence was concerned in relation to this matter, I had the opportunity of reading various affidavits and also considering the evidence of a number of her witnesses. Her partner, Mr R, swore an affidavit which was filed on 18 November 2010. Mr R was also cross-examined, but very briefly, in relation to these proceedings and I thought that Mr R’s evidence was generally given in an honest and frank manner. Mr R clearly sought and, understandably, was supportive of his partner and of her relationship with the child, [X].
I noted Mr R’s indication of his interaction with the child and, in particular, noted at paragraph 10 of his affidavit what I thought was an appropriate and proper concession relating to his knowledge of the fact that [X] “loves his father and is always talking about his dad”. He also noted that [X] will talk a lot about the animals on his grandparent’s property outside [W] and acknowledged that [X] loves his grandparents and talks about what he does with his [grandfather – Mr M]. I was generally impressed, as I say, with the evidence of Mr R in relation to this matter.
I also had the opportunity of reading the affidavit of Ms B, the maternal grandmother, in this matter and had the opportunity, also, of seeing Ms B in the witness box. I must say that I was troubled by some of her evidence given in relation to this matter.
Those concerns could be described quite succinctly as a concern arising from the fact that Ms B does not like the father, has little respect for the father and sees, unfortunately, little real benefit in the relationship that arises from the child spending time with the father.
Quite simply, Ms B could not give a positive statement in relation to the father other than, perhaps, what might be called a motherhood type statement, which was to the effect that [X] loves his father and a child needs a father. She was unable to make any other comments in relation to the father.
In particular, she was asked whether there was anything that might benefit [X] from time with his father and what might make the father a good father. Her response was telling and of concern, because she indicated that she could not think of anything.
She was then asked whether she had any time at all for the father and she replied, “not a lot”, and then I thought also of a troubling nature, was when asked whether she had spoken about the father in a negative manner in the presence of [X], she said that she had never done so. She went on, however, to say that she was very specific and had never spoken of the Madden family in front of [X]. She was then asked whether the family was seen as being “cut from the same cloth as the father”, and she recanted a little from that position, indicating that that was not the case, and that she spoke to the grandmother and the grandfather.
The real concern that arises in relation to this matter is that the grandmother has a very significant dislike, if not hatred, of the father. It stems, she says, from concerns with regard to the violent relationship that the mother disclosed to her in her dealings with the father, certainly during the relationship, and that that was something that she simply accepted as being understandable, because the mother would not lie to her. In fact, when she was asked whether she had checked what she had been told by the mother with the father, she said that she had not done so because she, “saw bruises and I believe [Ms Murdock] every time”.
The difficulty, therefore, is one of the obvious distaste that the grandmother feels for the father. She was asked specifically whether that might, in fact, be something that would be “picked up on by [X]”, and she indicated that she did not believe that [X] had picked up on that and when asked whether, acknowledging that the child was only four years of age, she would be able to maintain her feelings in relation to the father but still keep them separate and apart from the child, and therefore not known by the child, she indicated that she would be able to do it as long as it takes and she wouldn’t let [X] know how she felt.
Clearly, there are difficulties that arise in that particular regard because the child will, no doubt, pick up on comments made perhaps in his hearing, but certainly unknowingly made in his hearing, as well as the obvious distaste that the maternal grandmother and her partner, Mr D, feel for the father.
I was troubled by the evidence given by the maternal grandmother in that regard, and I must say that in light of that extreme dislike, if not hatred, of the father that it coloured much of the evidence that was given in relation to this matter, and it was one of the reasons that I was far more inclined to accept the evidence of both Ms C and Ms M, in relation to the recollection of conversations which were said to have occurred as between them and both the mother and the maternal grandmother.
The lack of appreciation of any real qualities in the father and the benefits of those qualities being passed to the child from the father troubled me, in relation to the determination of this matter.
I, similarly, had concerns in relation to the evidence of Mr D. Mr D is the de facto partner of Ms B and, in fact, they have been in a relationship for some 25 years. It is clear that to all intents and purposes, Mr D is the only father figure that the mother would know.
Mr D generally impressed me as, I thought, an honest witness and, in fact, that particular position was emphasised in relation to this matter when Mr D made a number of comments which were perhaps not in his or the mother’s best interests and it was emphasised by counsel for the mother that it showed that he was, if you like, a country person, full and frank in his disclosures to be made, with regard to his feelings. I was troubled, however, by some aspects of his evidence.
In particular, I was troubled by the fact that he would take it upon himself to physically discipline the child, without any authorisation from the father. It was certainly all well and good that he had such an authority from the mother, though there appeared, certainly, to be discrepancies as to his evidence and the mother’s evidence as to what that authorisation might have been, when it was given and the circumstances that it was utilised in.
I was generally troubled however, by his willingness to strike the child, though I acknowledge and accept his indication that since being made aware of the objection of the father, he has not struck the child in a disciplinary manner.
More particularly, however, I was troubled by the similarity of his negative attitude and view of the father and, in fact, the extended family, as the view held by Ms Murdock. When asked specifically whether [X] might have heard negative discussions about the paternal side of the family he answered in almost identical terms to the answer that was given by the maternal grandmother. He said that the child would never have heard such negative discussions, “because we don’t even speak of the Maddens in our home”.
That, of course, is troubling because it is, again, reflective of the negative nature of the view held towards the father and his family and, of course, it gives rise to a concern as to that view, being picked up by the child.
I must say that I was generally accepting, however, of Mr D’s evidence in relation to this matter and particularly note that he confirmed that he would not have real concerns about any child of his, being of course in this instance the stepchildren, being disciplined by other persons, if it were appropriate in the circumstances. He said that his attitude to discipline had remained unchanged and whilst he had been with the maternal grandmother in a relationship for some 25 years, he had also disciplined her children, his stepchildren, in a similar manner.
He, in fact, confirmed that he had smacked, as necessary, all of the children as they were growing up and that that included the mother.
I inquired particularly in relation to that matter, because the mother’s evidence was very clearly to the effect that she had, “never been physically disciplined by Mr D”. It troubled me that there was such an obvious discrepancy in the evidence that was given in relation to this particular matter.
Finally, I had the opportunity, also, of considering the evidence of the mother’s biological father, Mr W. I must say that I was quite impressed with Mr W. He gave me the impression of being a down to earth, hardworking and honest man and generally in his oral evidence reinforced that particular view.
It was noteworthy, however, that it was only through Mr W that evidence came out as to the mother’s past, including the fact that she had a conviction for an assault of a male person in the late 1990s, obviously prior to her relationship with the father, and that she was convicted in respect of the charges laid.

Mr W also acknowledged that the mother had a fiery temper but he couched it in terms of, “all have a fiery temper”, though it was unclear whether he meant generically every person or whether he was referring to members of his family or, perhaps, only the mother and her mother. The fact is, however, that the acknowledgement was given that the mother was, fiery in her responses and, certainly, it would appear could be physical in her responses to situations, that had angered her.
Mr W, also, was able to give some corroborative evidence of the incident between the mother and the father, where apparently both struck the other, including the mother striking the father with a broom. In that particular regard, again, I note that Mr W’s evidence diverged significantly from the evidence of the mother, who was adamant that she had struck the father once across the back with a broom handle during the altercation in the laundry, prior to their separation and that she had not otherwise struck him.
The father’s evidence was to the effect that the mother had then lunged at him with the broken end of the broom and that there had been an injury or wound to his side. Mr W indicated that he had seen the scar on the side of the father’s body and whilst he indicated that he understood that scar to arise from the mother hitting the father with the mop, it was clear that there was an injury to the father’s side which was not acknowledged by the mother.
I must say that I thought Mr W was generally an honest witness. He, in fact, acknowledged that time had passed from, perhaps, the first time that he gave evidence in relation to any proceedings arising from the separation of the mother and the father and that terminologies had changed. I see no real significance in that and must say that I would think that Mr W was generally an honest witness recalling as best he could exchanges between he and the father, he and the mother and otherwise was supportive of the mother, again, understandably in relation to these proceedings.
I turn now to the evidence of the mother and the father. As I indicated earlier in these reasons, the real concern that arises in relation to this matter is that there is little to distinguish the position of both the mother and the father and of their capacity to provide for the child. I should say at the very outset of my comments in relation to the mother and the father, that I have absolutely no doubt as to both loving [X] and [X] loving them and, again, have absolutely no doubt as to their capacity to meet all of the needs, physical, emotional, intellectual and psychological, in relation to the child.
That’s not to say that there are not certain criticisms that can be made in relation to the actions of both of the parents but certainly in psychological terms both parents are, “good enough”, when it comes to meeting the needs of the children.
There is, however, I think, a significant difference in relation to the mother and the father’s evidence in relation to this matter. In particular, I was more impressed with the father’s evidence and what I would consider to be the frankness of the evidence given, in relation to these proceedings.
I would not think that the father would be too disappointed for me to describe him as a generally rough and tumble man, who has made his living, until seriously injured in a motor vehicle accident a little under two years ago, as a labourer and roustabout on properties, throughout western and north western Queensland. I gained the distinct impression that he was not a man who would easily express himself and obviously that was one of the matters that were noted by Ms P, at the time of her interview.
It would also, I would think, be clear that the father would, on occasion, be unable to articulate his thoughts or views, in relation to arrangements to be made, particularly, for example, with respect to his proposals in relation to time being spent by the child with the mother. That therefore would give rise to a lack of any full appreciation of the thought that he might have put into proposals, with regard to time being spent by the mother with the child, in the event of the child living with him.
Additionally, the father also had a turn of phrase which I thought could give rise to some confusion, but once it was taken into consideration, there were obviously better understandings able to be gathered. The father on many occasions, when I think, he was actually saying that a particular conversation or a particular statement was not made, would say that he, “could not recall such a statement” or that the statement was one that was, “not to his knowledge”.
I accept that where such terms were used, they were in fact not an indication of a lack of recollection or ability to recall what might or might not have occurred, but rather a turn of phrase which clearly indicated that the father denied that such statements or events occurred.
The father gave some oral evidence prior to the commencement of the cross-examination in respect of this matter, with regard to physical altercations between the mother and he. He spoke of being head butted by the mother. He spoke of being punched to the face and chest by the mother and he spoke of being kneed in the groin by the mother. The mother denied certain of those incidents, but it is noteworthy that she does acknowledge, both in her affidavit material and orally, that there were certainly occasions where she punched the father to the chest, but denied that she had punched him to the face and denied that she had head butted him, though she acknowledged that she had kneed him in the groin.
I was concerned by the fact that there was clearly physical altercation between both the mother and the father, in relation to these proceedings, and am inclined to the view that on occasion both parents lost a real degree of control in their interaction with each other and whether they felt that they were provoked or were defending themselves became irrelevant, in that there were incidents of each parent lashing out and seeking to harm the other.
What flows from that, of course, is a concern in relation to the behaviours of both the parents. But, again, I must say that I was more impressed by the father in that regard, in that I generally considered his evidence to be given in a more forthright, open and frank manner than was the evidence of the mother, particularly when it only became clear in cross-examination that she had certain skills in martial arts and only when pressed did she acknowledge that a punch from her would not necessarily be of minor consequence, but because of her knowledge as to martial arts, would be able to be of a far more significant nature.
Similarly, it was troubling that only in the evidence of her father did it become clear that there were incidents of violence in the mother’s own behaviour, which in no way was acknowledged by her.
To cut to the chase in this matter, I was troubled by the fact that the mother quite clearly set out to paint herself as the person who was invariably the victim of unprovoked domestic violence when, quite clearly, the evidence pointed to a far more obvious opportunity for the mother also to act pre-emptively, to act in anger and that, as her father acknowledged, she had a fiery temper.
Both of these parents could do better when it comes to dealing with each other and it was pleasing, therefore, that the report, but also the oral evidence of the reporter, Ms P, indicated that she discovered civil exchanges between the mother and the father and the benefits that flowed to the child, from that actually occurring.
The father impressed me generally in relation to this matter. He impressed me with his determination to continue his significant involvement in the child’s life and of the importance that he and Ms C placed upon the relationship between [X] and his stepsister, [Y], and his half-sister, though to all intents and purposes she would be nothing other than his sister, [Z]. Ms P made some comments about how that relationship might or might not develop and grow, but I must say that I had no doubt whatsoever that there would be positives that would develop in that regard.
It would also be remiss of me not to comment, that the clear evidence given in relation to this matter was to the effect that, if the child were to be living primarily in the father’s household, though of course spending significant and substantial time with the mother, that there would be obviously more significant involvement of, “a parent”, in the day-to-day care of the child.
That arose clearly because of the injuries that the father had sustained as a result of the motor vehicle accident in the early part of 2009, and the fact that he and Ms C had reached an apparent agreement, wherein it would be more appropriate for Ms C to return to full time work and for the father to be responsible for the care, not only of their daughter [Z], but also of [Y] and [X], if [X] were to be living in their household.
It is, perhaps, significant that that would occur, because whilst the mother clearly indicates that she has flexibility in relation to her employment such that she was able, for example, to make arrangements to work only during school hours, if [X] were in her care there would be, obviously, pressures and pulls placed upon her time balancing work and commitments of that nature with the obligations in relation to [X], which would not arise within the father’s household.
Troubling also for me in relation to this matter, arising from the mother’s evidence, was the fact that I was simply concerned as to what I considered to be issues of untruthfulness in relation to the mother’s behaviour. I was troubled as to the circumstances surrounding the parties’ separation when the mother very quickly took steps to obtain, or at least seek to obtain, a domestic violence order, when quite clearly there had been preplanning by her, in relation to the move.
She explained that, by saying that the move and placement of clothes from she and the father’s residence to her family’s home in [B], was something done on the basis of whether it might be necessary for her to be prepared, if the father and she finally separated. But to have taken the preliminary steps that she did in relation to this matter, and then to suggest that there were circumstances of serious violence throughout the relationship which gave rise to the need for there to be an urgent application smacked of a manipulation of the circumstances that existed between the parties. It troubled me in relation to this matter because it reinforced the view that the mother was far more in control of the situation, both prior to and subsequent to the separation from the father, than she sought to paint as the picture, in relation to this matter.
Similarly, I was troubled by the mother’s evidence given in relation to Mr D, not so much because of the fact that she had authorised Mr D to smack the child, though there certainly seemed to be discrepancies between whether the mother was present on all occasions that that had occurred or whether she was absent and was subsequently told by
Mr D that he had physically disciplined the child as well as whether that had occurred before or after separation. Rather I was concerned at her absolute denial that she had ever been the subject of similar physical discipline from Mr D when of course Mr D’s own evidence was that he had disciplined all of his stepchildren in a physical manner and that the mother was certainly physically disciplined.
It simply gave rise to a general doubt that I held in relation to this matter, as to whether, in fact, the mother was entirely frank in relation to the evidence that she gave, with regard to the relationship between the child and the father and of the concerns that were held by her in relation to the father and the father’s household. I gained the distinct impression that the mother was very much more in control of her own emotions and the circumstances surrounding this matter than she was prepared to admit in either her affidavit or oral evidence, given in respect of these proceedings.
Whilst there are concerns that do exist in relation to the actions of both parents, particularly with regard to the issue of domestic violence, I am comforted by the fact that a state court, having fully heard the application in relation to domestic violence was not minded to make any orders with regard to the matter and I, certainly, am comforted by my own observations of the parties and, at least, what I would now consider to be the degree of respect that each holds for the other, in relation to the importance that they must have in the child’s life, now and into the future.
I have, as I indicated earlier in these reasons, no doubts as to each parent’s capacity to fully provide for the needs of the child, [X], whether he lives with one parent or the other.
I turn now to the evidence of Ms P because it was of significance in relation to the determination of this matter. In particular, Ms P made recommendation to the effect that there should be equal shared parental responsibility as was sought by each of the parents. She did, however, recommend that from the commencement of the 2011 school year, [X] lives with the mother and spends time with the father.
That recommendation was based generally, it would appear, on the assessment by Ms P, that whilst both parents, “provided [X] with a rich experience that is somewhat different to the other parent”, it was noteworthy that Ms Murdock had been more able to articulate a commitment to facilitating [X]’s relationship with the other, and that, “the writer gained the impression that Ms Murdock’s commitment is stronger”.
As I have indicated, I did not necessarily gain that impression, in relation to the matter. Whilst I have no doubt as to the mother’s determination to foster the appropriate relationship with the father, I gained a similar, if not stronger, impression that the father also sought to facilitate a relationship with the mother.
More telling in relation to these proceedings, however, was the concern that I gathered in relation to the matter, that the maternal grandparents would not necessarily knowingly but certainly would, perhaps, even without their knowledge or intent, pass on to the child negative views that they hold in relation to the father, and that that would over time, be of significance in relation to the relationship to be fostered and developed, between the father, his family and [X].
That particular aspect of the matter was reinforced for me, particularly when I noted that Ms P indicated at paragraph 113 the following:
During this assessment mention was made of [X] disclosing when in [B] he is called [X] Murdock. The writer reminds the parents of the importance of using [X]’s correct name.
It is, again, if you like, an indicator of the fact, that whilst the mother might, quite properly, appreciate the importance of the relationship with the father, the more extended family members did not necessarily reflect that and it was reflected in the fact that registrations had occurred for kindergarten did not note the father as the biological parent or in fact note him at all in relation to the registration of the child.
Similar criticisms were, of course, made of the father in relation to this matter and both need to be more mindful of that particular aspect of the proceedings. But the child being known by a name which is not his name when in the mother’s care and obviously in the care of the maternal grandmother and Mr D is, again, a matter of concern in relation to these proceedings.
I was assisted by the report of Ms P in relation to this matter but I was also troubled by some of the issues that arose from that report. Ms P was cross-examined at length, for example, in relation to the issues with regard to the matter of domestic violence and it was clear that
Ms P had accepted the mother’s version of events, in relation to the time of separation and how that had effected the mother.
Ms P, for example, spoke at length about the mother’s, “narrative” and at the time of separation, of her perception of she, “escaping domestic violence”. Unfortunately, my impression in relation to this matter is that the mother was a very good teller of her version of events, in relation to the matter and that as a result of that Ms P was, perhaps, unfortunately led into a misunderstanding of the relationship between the mother and the father, such that she accepted far more that the mother was the timid victim of domestic violence rather than, as appears more clearly now to be the case, a person who could be as aggressive, if not more aggressive, and that on occasions there would be situations where she would certainly be the first to lash out physically.
My determination in that respect, therefore, is that Ms P unfortunately has been led into a misunderstanding of the situation that existed, in relation to the relationship between the mother and the father, such that she had formed an impression in relation to the mother, which was not necessarily able to be justified, in light of all of the evidence that was heard, in relation to this matter.
Certainly, Ms P’s report was of assistance, however, in acknowledging the closeness of the relationship between each of the parents and the child and of the extended families with the child. There appeared to be little distinction drawn by [X] between the paternal grandparents and the maternal grandparents and in that grouping I, of course, include
Mr D. All have positives that they are able to offer in relation to the child and all, clearly, are able to support either the mother or the father respectively, in relation to the care and supervision of the child.
I must say that I was troubled, however, by some of the evidence given by Ms P in relation to this matter, particularly as I had indicated relating to the acceptance by her of the narrative relating to domestic violence, as given by the mother or, perhaps, the perception that she gathered of the mother in relation to issues of domestic violence.
It appears clear that the mother was far more articulate than the father and that therefore the mother was more able to convince Ms P of her position, in relation to this matter than was the father. In that respect I note, for example, a clear indication of what Ms P understood to be the proposals of the father, with regard to long weekends and, what appeared to be cross-purposes between what the father said was his proposal in relation to long weekends. Putting the child to the fore and have opportunities to be spent with the mother, over and above what might be available pursuant to any orders, as opposed to Ms P’s understanding that the father was only offering those weekends which included public holidays or pupil free days, rather than the more appropriate indications of additional time.
More particularly, I was however, troubled by the fact that Ms P gave significant evidence in relation to the incident that occurred in the cubby house at the mother’s residence, when she noted that [X]’s entire demeanour changed radically and that the child appeared, clearly, to understand well beyond his years or maturity that Ms P would have some influence, in relation to this matter. Ms P considered that any influence that might have been brought to bear upon the child had come from the father, or at the least, from the father’s side of the family. She did not, however, canvass this particular issue with the father and, of course, it remained an unknown, in relation to what might or might not have influenced the child.
Whether, in fact, there was influence brought to bear upon the child by the father or other members of his family or supporters in [W], or whether it was something otherwise found by the child and, perhaps, in the most manipulative of circumstances, within the mother’s household or from the mother’s side of the family is an unknown, but the fact that Ms P did not canvass such a significant issue with the father troubled me and gave rise to certain concerns as to the final recommendations made, in respect of this matter.

It was also emphasised to me that there must be some concerns held about the recommendation made by Ms P in relation to this matter because it did not show a reasoned assessment of why, in a finely balanced case, one party or the other should finally be recommended. The best that Ms P could indicate in relation to this matter was that she thought that the mother showed a greater commitment to fostering the relationship with the father than did the father toward the mother but, of course, much of that appeared to arise from the more articulate nature of the mother’s communication with Ms P and, of course, the general acceptance of the mother’s narrative, with regard to domestic violence.
Whilst, therefore, assisted by much of the report in relation to this matter, I am not necessarily minded to accept or to consider the final recommendations made in respect of the parenting of this child, in light of my own observations and assessments made in respect of this matter.
There is one further issue that needs to be addressed in relation to this matter and I referred to it early in these reasons when commenting upon the fact that the paternal grandfather, Mr M, was not called in relation to the matter.
It was certainly submitted on the part of the mother, that he was the, “elephant in the room”, and that with him not being called it could only be presumed, particularly applying the rule in Jones v Dunkel (1959) 101 CLR 298, that the evidence to be taken from him would not be favourable to the father’s case.
That might be a possible finding to be reached in relation to this matter but there is just as clearly the possibility, as was submitted on the part of the father, that it was not an, “elephant in the room”, but simply something that should be seen in light of the real evidence that was given, which particularly arose from the family report.
Ms P reported particularly, that Mr M had a close relationship with [X] and that they adored each other and that the paternal grandfather suffered a sense of grief and loss when the child was taken from the close interaction that had previously existed prior to the physical separation between the mother and the father. That evidence certainly is clear though it is also clear that, at least on the face of it, the paternal grandfather blamed the mother for that grief and loss that he felt, as a result of the separation from [X].
It is a similar situation to the acceptance by the maternal grandmother, Ms B, of the fact that what the mother told her was true in relation to these proceedings.
I must say that whilst it would, perhaps, have been of some assistance to have the paternal grandfather, who was clearly such a significant person in the child’s life, present before the Court and giving evidence in relation to the proceedings, I am not necessarily convinced that an adverse inference could or should properly be drawn from the fact that he did not give evidence, in relation to these proceedings.

The Law

I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the welfare of the children is to the fore. I am also mindful of the rebuttable presumption of equal shared parental responsibility and of the real issue in this case, with whom [X] should live and the time to be spent with the other parent.
In Lansa & Clovelly [2010] FamCA 80, a decision of Murphy J, a decision handed down on 11 February 2010. His Honour there, under the heading, “PARENTAL RESPONSIBILITY” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 145 about the issues to be looked at. They express clearly the position in relation to equal shared parental responsibility and are a good guide to parents in relation to expectations and obligations that fall upon them. His Honour said the following:

PARENTAL RESPONSIBILITY
[136]    The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]    Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]    But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]    The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]    No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]    The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so.   However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]    Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]    “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)     the child’s education (both current and future);
(b)     the child’s religious and cultural upbringing; and
(c)     the child’s health
(d)     the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).

Obviously, this matter is, as I indicated during these reasons, a difficult determination. The family reporter recommends an equal shared arrangement in relation to parental responsibility and both parents seek equal shared parental responsibility. I would not imagine that this would be a situation where that would not be appropriate
Whilst there is obviously indications of domestic violence within the relationship it was, what might be called, a, “two way street”, and there certainly was domestic violence perpetrated by each party upon the other, during the relationship. I am comforted, however, by the fact, as I noted previously, that a state court having fully heard such an application found that such an order was not appropriate and in any event I am not at all of the view that domestic violence would be a continuing factor, in relation to any dealings between the mother and the father.
I am not otherwise troubled by issues in relation to arrangements with regard to equal shared parental responsibility and noting that both parents seek such an order, that it is recommended by the Independent Children’s Lawyer and that I am not of the view that there is any factor that would rebut equal shared parental responsibility I intend to make the appropriate order in that regard.
Of course, there must then be consideration of those matters that arise pursuant to the provisions of section 65DAA of the Family Law Act. There must be consideration by the Court of whether orders should be made which would provide for equal time being spent within each parent’s household or if not practicable then significant and substantial time being spent within each parent’s household.
I am mindful of the definition of significant and substantial time as contained within section 65DAA(3) of the Act. The definition is in these terms:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent
Both parties acknowledge, however, that that is not, to all intents and purposes, a functional arrangement.
In fact when one considers those matters that are set out in section 65DAA(5) of the Family Law Act, and they are in these terms:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) 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 (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
it is not practicable for such an arrangement to be made.
The parties live 300 kilometres apart. The child is about to commence school and it would be impracticable in the extreme for there to be a suggestion, either that there be half or some significant amount of the child’s time spent in one household, that is 300 kilometres or more from the school, that the child is to attend. More particularly, of course, it would be impracticable in the extreme for there to be any suggestion of the child attending two schools and moving between those two schools.
The fact is that equal time or substantial and significant time, certainly during the gazetted school terms, is impossible because of the geographic considerations that arise in relation to this matter. I note in particular that both parents obviously accept that that is the case, because both propose that there should be orders made with the child living with one parent or the other and then spending significant amounts of school holidays, as well as other times as might be able to be facilitated, with the parent with whom the child does not live.
In the circumstances, of course, such orders are not appropriate and the Court must consider those matters that are set out as the objects and principles contained within section 60B and the considerations that must be looked at arising from those objects and principles as detailed in section 60CC. Section 60B and section 60CC are in these terms:
Section 60B
60B(1) [Object of Part] The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) [Principles underlying object]    The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
60B(3) [Right of Aboriginal child or Torres Strait Islander child to enjoy their culture]    For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
Determining child's best interests
60CC(1)    Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
60CC(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
60CC(3)Additional considerations are:
(a) 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;
(b) 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);
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.
60CC(4)    Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
60CC(4A)[Where child’s parents have separated] If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
60CC(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
60CC(6)For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.

I turn then to the principal considerations that are contained within section 60CC(2) of the Family Law Act. The child has a right to a meaningful relationship with each of his parents and it is to the credit of both parents that there is already, a meaningful relationship existing between [X] and both the mother and the father.
That meaningful relationship must be fostered and developed and it must be done in a circumstance which takes into consideration the child’s right to protection from either physical, psychological or emotional harm that might occur within one household or the other. It is an issue that has already been spoken of by me in relation to this matter but it appears clear that both parents acknowledge that what might have been the circumstances of their relationship are not now the circumstances of each of their respective households and I am not at all concerned that issues arise pursuant to the provisions of section 60CC(2)(b) of the Family Law Act would in any way effect the arrangements to be made, in relation to this matter.
Obviously, therefore, the child’s right to a meaningful relationship with each parent must be, as best it can be, fostered and developed and in that regard the additional considerations which arise pursuant to the provisions of section 60CC(3) must be looked at.
There are some views expressed by the child in relation to this matter. They can best be noted as having been the rather determined expression made by the child to Ms P on the occasion of her interview with the child and what was referred to previously, as the exchange within the child’s cubby house.
There is some concern, however, that arose, certainly, from Ms P in relation to how those views might have been transmitted to the child and whilst I have found that there is not necessarily a basis upon which they could be attributed to the father or his household as opposed to the mother or her household, I am certainly of the view that this child lacks the level of understanding or the maturity which would be necessary for a court to give any real consideration or weight to such a view expressed.
As best one could properly assess in relation to this matter, the child’s real view or wish would be for the opportunity, as is currently the case, to have an appropriate and developing relationship with each of his parents.
The nature of the relationship that the child has with each of his parents and with other persons, including grandparents or other relatives of the child, is significant. The child has a wonderful and positive relationship with both parents and with grandparents and other persons, all of whom are significant in the child’s life. That relationship needs to be fostered and developed and both parents have expressed a wish to do so.
The willingness and ability of each of the child’s parents to facilitate and encourage that close and continuing relationship between the child and the other parent is, however, a distinguishing factor in relation to this matter. As I indicated, the fact that the child, [X], indicated to
Ms P that he used the name Murdock when in [B] at the mother’s household was troubling and was, at least, an indicator of the fact that the importance of the child’s name and therefore his relationship with the paternal side of the family was not as strong as would hope to be considered.
Additionally, there were real concerns held by me in relation to the capacity of the mother, but perhaps by extension, the maternal side of the family, to foster the relationship with the father when the Madden side of the family was not mentioned in the household and there was general distaste and dislike of the father, within the mother’s side of the family. It could not be otherwise than expected that the child would, if not already, certainly within time and with developing maturity, pick up on such sentiments within the mother’s household and that they would be detrimental to the relationship with the father and also, one would think, the extended family.
The willingness to facilitate and encourage that close relationship between the child and the other parent is a significant factor and whilst I accept that both parents have taken appropriate steps in that regard I am mindful of the fact, as was emphasised on the part of the father, that each of the progressive steps that were taken in relation to time being spent by the child with the father, were the subject of necessary court applications.
It was clearly a situation where the mother would not readily or willingly recognise the importance of more time being spent by the child in each parent’s household, particularly prior to [X]’s commencement of school as occurs in 2011. I am unfortunately, therefore, of the view that there is a greater willingness, ability and intent on the part of the father and the father’s household to foster that relationship with the mother and her extended family than would be the case in the mother’s household.
Obviously, there needs to be consideration of the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or from other persons, including grandparents, with whom he or she has been living.
The unfortunate consequence of the geographic circumstances here is that there will be a change. Either [X] will be living more extensively in the mother’s household or will be living more extensively in the father’s household. Both parents, however, recognise the importance of significant and substantial time, certainly, during the gazetted school holiday periods being spent with the other parent, and further opportunities to be spent with the other parent, during the gazetted school term.
I would think that there will be some disruption to the child, but no matter what might be the final outcome, the child will have the capacity, with the support of both parents and extended family, to adapt quickly to any changes and for them to become the norm in the child’s life.
Section 60CC(3)(e) is relevant here because there are difficulties and, at least to some extent, expenses with the child spending time with and communicating with the other parent. The difficulty arises primarily from the 300 kilometre expanse between [W] and [B].
The parents have been able to overcome those difficulties and I have no doubt that they will continue to be able to overcome those difficulties particularly with the determination that they have both shown in relation to the previous arrangements put in place over the last year so as to ensure that the child had the opportunity for continued interaction and to maintain personal relations and direct contact with both of the parents. It will be difficult but it will not be something that will not be able to be overcome by the parents, they having clearly been able to deal with such issues in the past.
The capacity of each of the child’s parents and of other persons including any parent or other relative of the child to provide for the needs of the child, including their emotional and intellectual needs, is an important consideration here and, again, as I have indicated is similar to those matters that arise in relation to 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.
There is an unfortunate distinction to be drawn between the mother’s household and the father’s household in that I am far more inclined to the view that the father’s household will encourage the relationship between the child, the mother and the mother’s family than would be the case within the mother’s household.
Whilst the mother might properly take some steps, the fact is that [X] spends significant time with the maternal grandmother and her partner, Mr D, it being acknowledged by the mother and the maternal grandmother that there is perhaps one night each week and on occasion two nights each week that the child is spending time with the maternal grandparents. The fact that the Madden family are not mentioned and are not clearly welcome topics of conversation in the Murdock household is of concern and the clear distaste that is expressed by the maternal grandmother and Mr D for the father is a matter which gives rise to a concern as to that side of the family’s capacity to provide for the emotional needs of the child, particularly when there is such a close attachment arising in that regard.
Whilst there may be concerns expressed in relation to the paternal grandfather, [Mr M], to put aside his hurt at the child being taken away when their relationship was so close, I am more inclined to the view that there are more positives in the father’s household and in the paternal grandparent’s household with regard to fostering the emotional and intellectual needs of the child than are evidenced in the household of the mother.
Issues with regard to the maturity, sex, lifestyle and background of the child and of either of the child’s parents are not relevant here, it being noteworthy, but both parents have re-partnered and that there are strong positive relationships held with each of the maternal and paternal grandparents sides of the home.
There is not an issue in relation to Aboriginal or Torres Strait Islander issues and whilst there is some small connection within the father’s household with Aboriginal cultural issues, it is clear that they are not matters of significance within either of the households and are not likely to impact on any proposed parenting orders that might be made.
Section 60CC(3)(i) is an important consideration because it relates to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. In that regard, as I have indicated, there are criticisms and there are positive circumstances in relation to each of the households. There are concerns, however, held by me in relation to the mother’s household, relating particularly to the use of the name, Murdock, when in [B] and the issues with regard to the attitude to the father and to the role or importance of the father in the child’s life.
Whilst both parents show a responsible approach to parenthood there is a concern that cannot be avoided in relation to the mother’s household that leads me to consider that the attitude of the father and of the extended family members on the father’s side are more appropriate in relation to ensuring this child’s right to a meaningful relationship with each parent is fostered and developed.
Issues of family violence and family violence orders have been spoken of already at length in relation to this matter and whilst there has clearly been family violence as defined within the Act, perpetrated by each parent upon the other, I am more inclined now to the view that it is not a factor which would significantly give rise to concerns in relation to the future parenting of this child. Section 60CC(3)(l) relates to a consideration of whether it would be preferable to make one order or the other that would be least likely to lead to the institution of further proceedings in relation to the child.
Whilst there is never certainty in respect of such matters, I must say that I am more inclined, here, to the view that an order favourable to the child living with the father, but spending significant periods of time with the mother would be less likely to lead to further proceedings, simply because of the fact that if, as I have indicated, there are concerns with regard to the fostering of the relationship with the father within the mother’s household, then a failure of that occurring would be more likely to lead to further proceedings than would be the case in the father’s household. I am far more confident of the fact that there would be an appropriate fostering of the relationship with the mother and with extended members of the mother’s family in the father’s home.
It is not normally a factor which arises in relation to proceedings, but in this matter the consideration arising pursuant to the provisions of section 60CC(3)(m) is relevant, in relation to these proceedings. The fact is that there is a sibling relationship existing within the father’s household which can no doubt be fostered and developed over time. There is a stepsister, [Y], with whom there is already a relationship and whilst, certainly, there is some five years or more between the ages of the two children and there is differences in schools, etcetera, there is also, clearly evidence of a relationship between [X] and his stepsister which no doubt can be positive and which would be fostered and developed by the child being in that household.
More particularly, however, there is also the important sibling relationship between [X] and the child, [Z]. Whilst, again, there will be some four and a half years or so between the two children there is just as clearly the importance of that sibling relationship and it was commented upon by the father and Ms C in relation to [X]’s desire to be closely involved with the pregnancy and, of course, the desire to hold and to be involved with his little sister.
Whilst I note that Ms P was, perhaps, not as positive in relation to that particular aspect of the matter, the fact is that there is a sibling relationship to be considered in relation to this matter and in an instance where there is such little difference between what each parent can provide in relation to the child, there is an important consideration that arises in respect of the positives within one household or the other, that arises from the fact that there will be siblings and the opportunity to grow and to develop the relationship with both the stepsister and a half-sister, though that term is one that I do not appreciate, it being clear that from [X]’s perspective, [Z] would be nothing other than his sister.
Additional in this consideration, and I touched upon it briefly before, is the distinction that clearly must be drawn between the mother’s household and the father’s household, from the fact that the apparent intent, at least at this stage, is for the father to be a stay at home dad and to be the parent who will be closely involved in the day-to-day care of, certainly, the child, [Z], and also the child, [Y], when not at school.
The mother, of course, has commitments in relation to her employment and whilst she clearly indicated that there was flexibility in that regard, certainly during some occasions it would be clear that the mother would be required to place the child in day care or alternatively, of course, to place the child with her parents or other family members.
Whilst I certainly do not criticise those as appropriate and proper choices to be made in relation to the care of the child, there must be a distinction drawn between arrangements in relation to after school care or care by one set of grandparents or the other, balanced against the opportunity for the direct care by a biological parent and in particular, in this instance, the care by the father which would involve the continued interaction by [X] with siblings, significant in his life.
As is perhaps obvious from the comments that I have made in relation to this matter, I am inclined to the view that the best interests of this child and, of course, the best interests are the paramount considerations would be met by making orders generally which are reflective of what is proposed by the father in respect of this matter.
Before finally making those orders, however, I should simply note that in relation to section 60CC(4), the Court’s requirement to consider the extent to which each of the parents of the child has fulfilled or failed to fulfil his or her responsibilities as a parent, I am of the view that there is nothing adverse to the interests of either parent in relation to this matter and that both parents have, with some limitations, participated in the decision making with regard to the child, have spent time with the child and have communicated with the child and have made appropriate arrangements in all respects, with regard to the parenting of the child.
It is a difficult determination to make in this matter and is no easy decision but in the circumstances, as I have indicated, my assessment is that in a finely balanced case, issues have arisen which favour the proposals of the father in respect of the future parenting of the child and, accordingly, the orders that I intend to make in this matter are as shown at the beginning of these reasons.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 21 January 2011