Main & Quinn

[2007] FamCA 301

FAMILY COURT OF AUSTRALIA

MAIN & QUINN [2007] FamCA 301

FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT: Mr Main

RESPONDENT: Ms Quinn

INDEPENDENT CHILDREN’S LAWYER: Donald S Lampe

FILE NUMBER: MLF 9737 of 1998

DATE DELIVERED: 1 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 27, 28 February & 1 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Slater & Gordon

COUNSEL FOR THE RESPONDENT: Ms Vohra

SOLICITOR FOR THE RESPONDENT: Women's Legal Service

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Donald S Lampe

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Eidelson

Orders

1.That all existing orders in relation to the child, a son, born in August 1995 shall be and are hereby discharged.

2.That the father and mother shall share the parental responsibility for the child.

3.That the child shall live with the father.

4.That the child shall spend time with the mother as follows:

(a)From after school on Thursday until 6.00pm on Saturday each week;

(b)For half of all school term holidays by agreement, and failing agreement, from the break-up of school on the last day of term until 6.00pm on the second Saturday of the holidays;

(c)For each alternate week of the long summer vacation by agreement, and failing agreement from 10.00am on the day after the break-up of school;

(d)From 6.00pm on the Saturday prior to Mother’s Day until 6.00pm on Mother’s Day;

(e)For a period of three hours on each of the child’s and the mother’s birthdays by agreement, and failing agreement from 5.00pm until 8.00pm;

(f)For three hours on Easter Sunday if this does not otherwise fall within the school term holidays by agreement, and failing agreement from 2.00pm until 5.00pm;

(g)From 3.00pm on 24 December 2008 until 3.00pm on 25 December 2008, and each alternate year thereafter;

(h)From 3.00pm on 25 December 2007 until 3.00pm on 26 December 2007 and each alternate year thereafter; and

(i)As may be further or otherwise agreed.

5.That the time the child lives with the mother shall be suspended as follows:

(a)For three hours on each of the child’s and the father’s birthdays by agreement, and failing agreement from 5.00pm until 8.00pm;

(b)From 3.00pm 24 December 2007 until 3.00pm 25 December 2007 and each alternate year thereafter; and

(c)From 3.00 pm 25 December 2008 until 3.00 pm 26 December 2008 and each alternate year thereafter.

6.That all changeovers shall occur at the child’s school and should the school be closed then the mother shall collect the child from the paternal grandmother’s residence unless otherwise agreed, and the father shall not approach the mother when she attends that residence, and the paternal grandmother shall collect the child from the mother’s residence at the conclusion of the mother’s time with the child.

7.That the mother shall ensure that the child attends all sport training sessions and games, and in particular any such training sessions and games for football, when the child spends time with her.

8.That the Independent Children’s Lawyer shall arrange for Mr L to explain these orders and the reasons for them to the child as soon as practicable, and for that purpose the Independent Children’s Lawyer shall give Mr L a copy of these orders and the Reasons for Judgment and thereafter the Independent Children’s Lawyer shall be discharged.

9.That the mother and father shall bear equally the costs of Mr L’s services in relation to the preceding paragraph and Victoria Legal Aid shall be requested to meet the mother’s share.

10.That the child shall, save for a written agreement by the parents otherwise, attend C College during his secondary education, commencing in 2008 subject to his being accepted for enrolment at the said school.

11.That each parent shall be restrained from:

(a)Denigrating the other to or within the hearing of the child; and

(b)Discussing the court proceedings or litigation with the child or within his hearing.

12.That each parent shall keep the other informed of their current residential address and contact telephone numbers.

13.That each parent shall be authorised to obtain copies of all school reports and notices from the child’s school and to attend sports days, school concerts and other occasions parents usually attend, save that the mother shall arrange to attend any parent-teacher interviews at a time separate to the father.

14.That each parent shall keep the other informed of any medical event or illness for which the child requires medical treatment without delay.

15.That otherwise all existing applications shall be dismissed and the case removed from the pending cases list.

16.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

17.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that The judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as MAIN & QUINN

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 9737  of 1998

Mr Main

Applicant

And

Mr Quinn

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.The child is 11½.  His parents cannot agree how their responsibilities for him and time with him should be divided. 

2.Currently the child lives with his father four nights’ per week, from Saturday evening until after school Wednesday, and with his mother three nights’ per week, from Wednesday to Saturday. 

3.The father says that the child should live with him for more time, but spend from after school Thursday until Saturday evening each week with his mother.  He says that accords more closely with the child’s clear and mature wishes.  He also relies on the fact that he has flexible work hours so that he is more available than the mother to care for the child.  He has significant support from the paternal grandparents who have always assisted him and with whom the child has a very close relationship.  And he is in a stable relationship with his partner, Ms C with whom he is now living. 

4.The father says that the mother’s work commitments mean that she works six days’ per week, is unavailable to care for the child during that time, and she entirely relies on her parents’ help when the child is with her.

5.The mother acknowledges that the child has told the Family Report writer that he wants to live primarily with his father.  She says though that he is too young to make that decision, and his parents still need to make important decisions for him.  She says the child is highly conflicted, and that has occurred only while he has been living with his father, and as a result of his father’s attitude towards her and his undermining of the child’s relationship with her.  She says any reduction in her time with the child will further undermine the relationship.  She points to the fact that during the many years that the child lived with her, that conflict did not exist and the parties were able to agree on arrangements.

6.The Independent Children’s Lawyer (the ICL) supports the father’s case that the child should live primarily with his father, spending two nights’ per week with his mother.  The ICL highlights that both parents persist with conflict that is not in the child’s best interests.  Otherwise, he accepts the Family Report writer’s opinion that it is important in all the circumstances of this case that the child’s wishes be given substantial weight and that he live with his father as he has requested. 

BACKGROUND

7.The father is Mr Main.  He is 36 and works shift-work as a store-person at a supermarket chain in the northern suburbs.  The mother is Ms Quinn.  She is aged 34 and runs a café in the western suburbs.

8.The parties lived together from December 1993 until August 1997.  The child was born in August 1995 and is in Grade 6 at M Primary School.

9.The child was only two when his parents separated.  He continued to live with his mother.  His parents obtained consent orders in this court on 2 November 1998, providing for the child to live with her and to spend one night per week and have dinner one other night with his father.  According to the father, that quickly evolved into spending three to four nights’ per week with him at the paternal grandparents’ home. 

10.In mid-2003, when she needed to find new accommodation, the mother asked if the child could stay with his father, which he then did for approximately five to six nights’ per week.  At the start of 2004, when the child commenced Grade 3, the parents changed his school by agreement, so that it was close to the paternal grandparents’ home where the father and child continued to live. 

11.At the end of 2004 the mother moved to a flat in P.  She wanted to increase her time with the child.  The father said that from September 2004 until December 2004 the child was spending about three nights’ per week with his mother and four nights’ per week with him.  By early 2005 the mother wanted the child to live with her for most of the time.  The father said that the child did not want that.  The parents could not reach an agreement.

12.The mother started this case in February 2005.  On 14 April 2005 interim orders were made for the child to live with his mother from after school Wednesday until 6.00pm Saturday each week, half school holidays, and on special occasions, and the rest of the time with his father.

13.On 26 April 2006 the arrangements for collections and deliveries were modified by the magistrate, after contested intervention order proceedings.

MATERIAL RELIED UPON AND ORDERS SOUGHT

14.The father relies on:

·His case summary dated 20 February 2007

·His amended application filed 21 July 2006

·His affidavit filed 27 November 2006

·The affidavit of Ms V filed 29 November 2006

·The affidavit of his partner Ms C filed 27 February 2007.

15.The father seeks orders for equal shared parental responsibility and that the child live with him and spend time with his mother two nights’ each week, and half school holidays. 

16.The father also sought an order at the start of the case that the child attend T College for his secondary schooling commencing in 2008.  Ultimately the parties agreed I should order that he attend C College, as sought by the mother.

17.The mother relies on:

·Her case summary filed as at 27 February 2007

·Her amended response filed 31 August 2006

·Her affidavit filed 5 February 2007.

18.She seeks orders that the child live with her three nights’ per week and half school holidays, although she had made it clear in her evidence that she really wants the child to live with her for longer than that. 

19.The ICL relies on:

·The affidavit of Mr L filed 12 April 2005 (attaching the Family Report dated 5 April 2005)

·The affidavit of Mr L filed 29 November 2006 (with the report of 17 October 2006).

20.As noted, the ICL primarily supports the orders sought by the father.

RELEVANT LEGAL PRINCIPLES

21.Part VII of the Family Law Act1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act.  Section 60B(1) sets out the objects of Part VII of the Act, to ensure 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.”

22.Section 60B(2) sets out the principles underlying those objects.  They 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).”

23.In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA).  Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests.  I will return to the detail below.  Section 60CC(4) provides that 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 the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).

24.There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA).  The presumption relates to the allocation of parental responsibility.  It does not relate to the time the child spends with each parent.   

25.The court is then required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), and whether it is reasonably practicable (s 65DAA (1)(b)), and then consider an order for equal time (s 65DAA (1)(c)). 

26.If the court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d) ), and then consider an order for substantial and significant time (s 65DAA (2)(e)).  “Substantial and significant time” is defined in s 65DAA(3), and  s 65DAA(5) deals with “reasonable practicability,” providing that 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.”

THE ISSUES

27.The issues in this case can best be dealt with under the various considerations in s 60CC of the Act, starting with the primary considerations under s 60CC(2).  That necessarily requires me to examine how each parent has fulfilled their parental responsibility, particularly in the long period since separation.

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

28.Everything in the evidence points to the need for the child to have a meaningful relationship with both his parents to ensure his healthy development.  The parties’ respective capacities to promote it is one of the important issues in this case.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

29.In April 2006, the mother obtained an intervention order against the father.  It seems that since the intervention order there has not been any on-going problems or breaches, and I did not hear a great deal of evidence about it.

30.The mother alleges that in the father’s parents’ home, where the child lived with him until recently, there was on-going exposure to conflict and argument.  I did not hear enough evidence to make definitive findings.  However, although evasive at first, the father ultimately had to admit that for some time the mother had been asking him to move the child out of the paternal grandparents’ home due to her concern about conflict between him and his parents.  His evasiveness leads me to suspect that there was likely to have been a problem in that household.  I accept the mother’s concern was a genuine one, particularly as she was otherwise ready to concede the child’s fondness for his paternal grand-mother.  Beyond that, I cannot comment on the precise nature or extent of any conflict. 

31.I heard reference to the mother living with one partner where there was some question of violence.  That was in the past, she extricated herself from the relationship, and again I heard too little about it to make any definitive findings. 

32.The only other relevance of this consideration is the volatile relationship between the child and his mother last year.  I will deal with it when considering their relationship further below.

33.I must now turn to the additional considerations.

(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;

34.The child wants to live primarily with his father. 

35.When the child was first interviewed by Mr L in March 2005, he wanted the regime, whereby he went to his mother’s house after school Wednesday and came back on Saturday evening, to continue.  He said he enjoyed having plenty of time with each parent, and the arrangement suited his established routine.  Mr L found the child friendly and fairly articulate and had little difficulty engaging him in discussion.  Mr L said he displayed an underlying desire for stability, and for an increasing autonomy in exercising control over his own life. 

36.Mr L next interviewed the child in September 2006.  Again he described the child as articulate and friendly, and in Mr L’s presence he told his mother directly the things that were worrying him about their relationship.  The child was clear that he did not really want to go to his mother’s.  He told Mr L (para 6.2):

“I don’t really wanna go to my mum’s…I was only going to be fair…but she isn’t fair back…like I didn’t want to do guitar…I wanted to go to footy practice…that’s why I broke the guitar when I was angry…she just won’t leave me alone.”

37.The child went on to complain that his mother would not listen to him, he was sick of moving, he got bored at his mother’s sometimes, and he just wanted to go to his mother’s one day a week, perhaps starting Friday after school. 

38.Mr L concluded his second report with the strong view that the child’s growing autonomy demanded that his views be listened to and acted upon, or he was likely to become entirely resistant to spending any time with his mother.  In cross-examination by Counsel for the wife, Mr L agreed that this interview represented a “snap-shot” of a very bad time, a low point in the child’s relationship with his mother.  I will return to the detail of that.

39.Mr L has interviewed the child in the last few days, to talk to him about his father’s recent move to live with his partner in W.  The child told Mr L that he still wants to live with his father.  He says he is comfortable with the move.  It means that he spends one evening per week at his paternal grandparents’ and he likes that.  His relationship with his mother has improved since September last year and he would be comfortable with two nights’ per week with his mother.

40.Mr L is of the opinion that the child has thought through, and is mature in expressing, his views.  In his expert opinion, the child’s wishes should be respected.  Mr L believes the child could cope with three nights but it is truly against his wishes and that may be a counter-productive approach towards supporting his relationship with his mother.

41.The father relies heavily on the child’s expressed views and says they should be respected.  The mother points to the fact that he is only eleven, and cannot possibly know everything that he needs to know to make such a serious decision about his future.  She is also concerned that with his father, the child has not been free to say what he wants, that he is caught in his parents’ conflict, and he is trying to please them both but most particularly his father. 

42.The parents’ polarised positions summarise well some of the considerations for me in taking into account, but weighing the child’s views with the rest of the evidence.

(c)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);

43.From the child’s description, he has an excellent relationship with his father.  They share common interests and have fun together.  Mr L supported that, and at one point the mother conceded as much. 

44.Until four years ago, the child had always lived with his mother.  There has been such a strong turn-around in his opinion of her - and in a moment I will deal with the ways in which she has herself contributed to that - that I have some concerns that his father has not properly supported him in his relationship with his mother.  I am satisfied that the child has a good relationship with his father.  I would be more fulsome in my description of it if the evidence led me to conclude without hesitation that his father was sparing him from the conflict of these proceedings and truly encouraging and leaving him free to enjoy a healthy relationship with his mother.

45.I am satisfied that the child has quite substantial difficulties in his relationship with his mother.  It is clear from the child’s version, the mother’s concessions, and Mr L’s opinion that, although the child is more settled this year, during last year he had horrendous problems with her, and there are still problems.  The mother’s claim that it is predominantly because of the father’s attitude to her, ignores her own difficulties in parenting the child.

46.An illustration of the difficulties between mother and son occurred in the second half of last year.  On August 31, the mother called the police to her home when the child was so enraged and out of control that he was breaking things and she needed help to settle him down.  In September, she was not going to return the child to his father, saying that the child was on the verge of a nervous break-down, and his behaviour was again uncontrollable.  Mr L intervened and the mother was persuaded by the child to let him return to his father.  Overall, the mother had to concede that she and the child do have difficulties in their relationship.   

47.Fortunately, the child has loving and helpful relatives on both sides.  It is obvious that his paternal grandparents remain very important and involved in his day-to-day life, as do the maternal grandparents, as well as other relatives on both sides.  In addition, he seems to have forged a sound relationship with his father’s partner Ms C. 

(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;

48.The parties relate very poorly to each other, if at all.  The conflict is evident, and no-where is it more evident than when I consider each parent’s willingness and ability to facilitate and encourage a close relationship with the other.  The child is the hapless pawn in the middle.  Mr L has made it clear in his reports and his evidence how damaging their conflict is to the boy. 

49.The father shows very little insight about it.  At one point he claimed that the child was not exposed to conflict because he and the child’s mother do not speak.  He showed little understanding that a cold war is still a war, and that the child must feel the impact.

50.It is central to the mother’s case that she needs to continue seeing a great deal of the child because the more he is under his father’s influence, the less he is emotionally free to enjoy his relationship with her.  She points to the fact that so long as the child lived with her, as he did for very many years after separation, he was able to enjoy a good relationship with both parents.  That has only changed since the child has been in the father’s care.  As noted, in my view the reasons are more complex than the way she explains it.  It is not all the father’s fault, although he does have his faults. 

51.I am unimpressed with the father’s approach to the child’s relationship with his mother.  That was clear on a number of levels.  I note that when Mr L asked him about the child’s exposure to the continuing disputes between his parents at the time of the second report, the father said:

“I don’t talk to [the child] about these things…he’s probably heard people talking about it in the house… and he was at the accountant’s with me…he probably heard some of the welfare stuff there…plus he knows she’s been lying to the courts…like when he couldn’t go to footy training or cricket on Saturdays…he knew we both have to take him.”

52.Mr L noted (at para 4.7) that when he challenged the father about the wisdom of not shielding the child  more actively from such matters, the father said “This has just gone on and on …I’m not going to lie to him…I try to tell him the truth...”

53.I accept the mother’s version that when the child accuses her of “lying” and “lying to the court” he is mimicking his father, and that with his father he is exposed to criticism of his mother which is inappropriate and undermining of the child’s respect for and relationship with her.

54.Another insight into the father’s capacity to facilitate that relationship arises in the context of the selection of the child’s secondary school.  It is clear that although he believes the child should go to a Catholic school, he “made a deal” with the child that if he went well this year, he could go on to H Secondary College with his friends, as he wishes.  Inappropriately, he had no recourse to the mother on that topic, and again that is likely to send a clear message to the child that his mother is not an important part of his life and the decision-making about it.

55.The starkest example of the father’s de-valuing of the mother’s role, is how he has approached the recent move to W.  However he tries to dress it up, it remains unimpressive.  Although when he saw Mr L for the purposes of the second report in September 2006, he had his girlfriend Ms C with him, and at the time they had been seriously discussing moving in together, nothing was said to Mr L.  In November 2006 he moved in with Ms C, in her rented premises in W.  Nothing was conveyed to the mother either directly or through solicitors.  It is evident that it was a “big secret” that the child was either specifically instructed to keep from his mother, or at the very least, he knew that he must.  It was only at the door of this hearing, that counsel for the father revealed the fact of the move.

56.In his evidence, the father was quite dismissive of the mother’s need to know of the move.  He said she had moved many times in the past (in fact he exaggerated her number of moves) without telling him.  I accept her account that he has known where she has been living.  In any event, it was not a satisfactory excuse for his own actions.  He has shown no appreciation for the importance of this move, in terms of it involving a new parent-figure in the child’s life, a new location, considerable travel, and disruption to the child’s weekly routine. The father blithely claims that W to H – a trip the child must make at least five times in the week – is no more than about 50 or 55 minutes.  He seems casual about the fact that for a young boy who has been craving stability it means that he now spends some nights in each week with his mother, some nights in each week at W as well as overnight at H with his paternal grandparents.  He says simply that the child is fine with it.

57.Ironically, the father’s case has always been based around the importance of stability for the child and the importance of him being and remaining in H with his friends and his sporting activities as well as his family.  Indeed he anticipates that the child will start school in the area next year.  He and his partner claim that she will be able to move her present employment from W to G by the end of the year and that it is their intention then to live in H.  Ms C’s evidence was unimpressive about that, in that she told me that it was an absolute “certainty”, but I am left with the distinct impression that she was ramping it up, when less than a week earlier her affidavit made it sound more of a “likelihood” than a “certainty”. 

58.It is significant that with the father’s case being based on the need to keep the child in his local area, the mother had taken that on board sufficiently that in the middle of last year she moved her residence to N to be closer to H.  Shortly after her doing that, the father has moved the child away.

59.Of the two parents, the mother has shown the better capacity to promote the child’s relationship with the other parent in the past.  However, I am less confident that it is now the case.  She showed her true colours in the course of the intervention order proceedings when she told the magistrate that she actually believed it was contrary to the child’s best interests to have any contact at all with his father.  It seems that since then her view has not in fact truly changed. 

60.It is clear that neither parent has spared the child from their conflict.  Sadly, neither shows a genuine appreciation of the importance for him of 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;

61.Wherever he lives, the child will continue his close involvement with extended family on both sides.  That will not change.

62.The father says that if he spends more time with his mother he will be very unhappy indeed.  His mother says that if he continues to spend more time with his father than with her, her relationship with him will continue to be undermined.  That goes to the heart of the case.

(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;

63.The logistics in this case have only recently become difficult with the father’s move a significant distance from H.  Whether it is at the end of this year or not, I do accept that it is likely that he and Ms C will move back to the H area where both their families reside.  The less travel for the child the better.  In the meantime, he appears to be coping with the travel, as he has in the past when his mother lived away from H, and I am satisfied it will not be distance or expense that will affect the child’s right to maintain his important relationships.

(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:

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

64.Both parents adore the child.  There is no question about that.

65.In the past the mother showed a better capacity than the father to allow the child to be free to love the other parent.  During the very many years he was living with her, he maintained a loving relationship with his father.  The father has not been so capable.  But the mother has now become so polarised from the father, she too seems to have lost perspective on this.  I am critical of both parents.

66.The mother claims she is the parent with the insight into the child’s emotional needs.  This is simply not supported by the evidence.  She may well have been his primary carer in his early years, but she has had genuine difficulties relating to him in recent years as he has, with growing maturity, sought more autonomy.  But she does have her strengths.

67.I am impressed with the mother’s approach to the child’s schooling.  When he was having difficulties last year, she took the initiative to arrange a meeting with his teacher and the principal to discuss the difficulties.  I am surprised that his father, given that the choice for the child’s school for next year is a hot issue, has not taken a similar initiative to discuss the child’s progress so far this year.  He says that he will talk to the teacher at parent-teacher interviews.  He says that things appear to be going well and that the child won a Student of the Week Award for good organisation recently.  Still, I would prefer to see greater engagement, particularly when there was a concern through the school report last year that the child was not completing homework.  One of the mother’s criticisms of the father is that he is too liberal with the child and that gives some weight to her concern.

68.That liberal approach is also seen in the way he has approached the choice of secondary school.  The father had chosen a particular Catholic school for the child next year, on the basis of a strong approach to discipline that he believes his son needs.  Nevertheless, he agreed with the child that if he does well this year, he can go on to H Secondary College with his friends, as he wants.  That suggests he can be too permissive, allowing the child to call the shots.

69.Despite the father’s liberal parenting style, the mother’s assertion that with his father the child can simply do as he pleases, and that is the attraction for him, is unfounded.  In my view the father’s approach warrants some criticism, but it is still within the realms of an appropriate parenting style and I accept Mr L’s evidence and find that the father is not so permissive that he is failing in his parental duties and responsibilities.

70.In considering the father’s parenting capacity, I find that his approach to the move to W is unimpressive for his lack of consideration as to the impact on the child.  Ms C has a lease on her W property for only another few weeks.  The father had to agree there is no reason at all why they could not rent premises in H and let Ms C commute daily to her nine-to-five job, rather than having the child do the commuting.  His evidence was all over the place.  He told me that in fact he thought it was in the child’s best interests to spend this year in H rather than in W.  But he did not adequately explain why he had not then made those arrangements, and he was clearly angry with any suggestion that they should move, although he would “if he had to”.  That said, in the circumstances of the child being comfortable with the arrangements, (and the father’s account of that is confirmed by what the child told Mr L), although I observe it would be preferable to be in H, I do not propose to make any order about it.

71.I have a substantial concern as to the mother’s capacity to cope with the child, and in my view it is an inadequate explanation for her simply to say that the father has undermined the child’s relationship with her.  The problems are definitely more complex than that, and although she acknowledges difficulties, she appears to lack insight as to her own contribution.  I accept Mr L’s evidence that she has taken an authoritative and rigid approach to parenting the child that has led to conflict between them.  It seems in some ways there has not been a meeting of minds.  She admits that she even finds it difficult to draw him out in conversation. 

72.It seems that a sore point for the child has been that his mother has made arrangements that clash with his other arrangements and interests.  She claims that he has been keen to start activities that have clashed with his football.  The father claims that the child has wanted to do football and that his mother has simply over-ridden those wishes.  Of the two versions, the father’s is supported by Mr L’s reporting of the child’s views.  He is apparently very keen to maintain his sporting interests, but particularly football, and has been upset by his mother acting contrary to that. 

73.It is promising that there is an improvement in the child’s relationship with his mother since the low point in September last year.  But it is still early days and Mr L was persuasive in his evidence that there needs to be respect extended to the child’s strong and mature views, for the relationship to continue to improve.

74.Although I do not doubt how much the mother cares for her son, and I am sympathetic that she is working hard to earn a living and to support him when he is with her, it is unfortunate that she was unable to spend her half of the long summer holidays with him at the start of this year.  Her parents, who look after him while she is working, were very suddenly called overseas to a death in the family.  She needs to arrange back-up support so that important periods with the child are not lost for that reason.  That said, I believe the father exaggerated his account of her working for a full six days’ each week.

(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;

75.The mother is of Chilean origin.  As noted, the child is lucky enough to enjoy extended family on both sides, so he is exposed to full family backgrounds and culture.

(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;

76.This is not relevant in this case. 

(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;

77.I have already dealt with this as relevant above.

(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;

78.It is very important that the child be free from further litigation.  He has lived with this for some years now and needs to be free to enjoy his childhood.  I hope that the orders that I make will provide certainty and a framework for the parents to move into the future without litigating.

CONCLUSION

79.All parties agree that the parents should equally share parental responsibility in relation to the child.  That shared role will not be without its complications, given their level of communication at present, but it is important for him to have the benefit of the input of both his parents, and it is important that both parents are forced to appreciate that neither owns him, and that they each have much to contribute to him.  I urge them though in making decisions to turn to the help of a skilled mediator rather than litigation as their first port of call if they need assistance.  It would be contrary to the child’s best interests to overlook that first option.

80.I am obliged to consider whether spending equal time with each parent would be in his best interests.  No party urged that it was.  I must then consider him spending substantial and significant time with each parent.  The father says that would be satisfied by two nights’ per week with his mother.  She says it will be satisfied by three nights’ per week.  The ICL agrees with the father.

81.I am satisfied that the child’s best interests call for a regime of two nights’ each week with his mother.  That will give him some school time and some week-end time with her.  It will commence with her collecting him after school Thursday and will finish on Saturday evening.  She can be involved with his school life and his leisure activities on a weekly basis.

82.I reach that conclusion for a number of reasons.  It accords with the child’s strong views, and I am persuaded by Mr L that those views are mature and well-considered, and that it is important to give significant weight to them in this case.  Whilst the child may be able to “tolerate” a third night with his mother, I am not prepared to do anything that might jeopardise the tentative steps that have just been taken towards re-building his relationship with her.  I am persuaded that there will be more fertile ground for that to occur, if he is not pushed beyond what he is currently comfortable with. 

83.These orders will mean that the child never goes more than five days without seeing his mother.  He will be able to cope with the period of time away from his father, but he has made it clear that he could not tolerate longer periods away at one time.  I am satisfied that it will give him stability, and will enable him to maintain an evening a week with his paternal grandparents as he apparently desires, given that he is particularly close to his grandmother, who has been integrally involved in his life in the last four years.  It will also ensure that the can go to his Wednesday football training with his father.  Combined with half school holidays and special occasions, this will give the child sufficient time to enjoy the benefits of his mother’s care, without pushing him too far beyond what he desires or can cope with right now. 

84.The child has been so embroiled in this conflict, it is essential that he now knows it is over.  I do not trust either parent to be able to give him the correct messages about what has occurred.  I am satisfied that his best interests will be promoted by Mr L describing these orders, and my broad reasons for them.  He appears to trust Mr L.  I will leave it to Mr L as to how he distils these Reasons for Judgment.  As an expert psychologist, he is well placed to make that call.  However, I request that Mr L at least incorporate into his description to the child the following concepts:

·That the judge is satisfied that both his parents love him very much, and that each has an important role in his life.

·The judge took his views very seriously, although the final decision is the judge’s alone, taking into account many considerations as well as the child’s views.

·Both parents agree that C College is the best school for the child and have decided that is where he will go for his secondary schooling.

THE ORDERS

85.The orders I propose, with the assistance of minutes that were prepared, but subject to submissions as to form, are as follows:

1.That all existing orders in relation to the child, a son, born in August 1995 shall be and are hereby discharged.

2.That the father and mother shall share the parental responsibility for the child.

3.That the child shall live with the father.

4.That the child shall spend time with the mother as follows:

(a)    From after school on Thursday until 6.00pm on Saturday each week;

(b)    For half of all school term holidays by agreement, and failing agreement, from the break-up of school on the last day of term until 6.00pm on the second Saturday of the holidays;

(c)    For each alternate week of the long summer vacation by agreement, and failing agreement from 10.00am on the day after the break-up of school;

(d)    From 6.00pm on the Saturday prior to Mother’s Day until 6.00pm on Mother’s Day;

(e)    For a period of three hours on each of the child’s and the mother’s birthdays by agreement, and failing agreement from 5.00pm until 8.00pm;

(f)     For three hours on Easter Sunday if this does not otherwise fall within the school term holidays by agreement, and failing agreement from 2.00pm until 5.00pm;

(g)    From 3.00pm on 24 December 2008 until 3.00pm on 25 December 2008, and each alternate year thereafter;

(h)    From 3.00pm on 25 December 2007 until 3.00pm on 26 December 2007 and each alternate year thereafter; and

(i)     As may be further or otherwise agreed.

5.That the time the child lives with the mother shall be suspended as follows:

(a)    For three hours on each of the child’s and the father’s birthdays by agreement, and failing agreement from 5.00pm until 8.00pm;

(b)    From 3.00pm 24 December 2007 until 3.00pm 25 December 2007 and each alternate year thereafter; and

(c)    From 3.00 pm 25 December 2008 until 3.00 pm 26 December 2008 and each alternate year thereafter.

6.That all changeovers shall occur at the child’s school and should the school be closed then the mother shall collect the child from the paternal grandmother’s residence unless otherwise agreed, and the father shall not approach the mother when she attends that residence, and the paternal grandmother shall collect the child from the mother’s residence at the conclusion of the mother’s time with the child.

7.That the mother shall ensure that the child attends all sport training sessions and games, and in particular any such training sessions and games for football, when the child spends time with her.

8.That the Independent Children’s Lawyer shall arrange for Mr L to explain these orders and the reasons for them to the child as soon as practicable, and for that purpose the Independent Children’s Lawyer shall give Mr L a copy of these orders and the Reasons for Judgment and thereafter the Independent Children’s Lawyer shall be discharged.

9.That the mother and father shall bear equally the costs of Mr L’s services in relation to the preceding paragraph and Victoria Legal Aid shall be requested to meet the mother’s share.

10.That the child shall, save for a written agreement by the parents otherwise, attend C College during his secondary education, commencing in 2008 subject to his being accepted for enrolment at the said school.

11.That each parent shall be restrained from:

(a)    Denigrating the other to or within the hearing of the child; and

(b)    Discussing the court proceedings or litigation with the child or within his hearing.

12.That each parent shall keep the other informed of their current residential address and contact telephone numbers.

13.That each parent shall be authorised to obtain copies of all school reports and notices from the child’s school and to attend sports days, school concerts and other occasions parents usually attend, save that the mother shall arrange to attend any parent-teacher interviews at a time separate to the father.

14.That each parent shall keep the other informed of any medical event or illness for which the child requires medical treatment without delay.

15.That otherwise all existing applications shall be dismissed and the case removed from the pending cases list.

16.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

17.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  1 March 2007