Mallery and London - [2012] FMCAfam 145

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MALLERY & LONDON

[2012] FMCAfam 145

FAMILY LAW – Final parenting orders.

Family Law Act 1975, ss.4, 13C, 60CA, 60CC, 60CG, 60K, 61DAA, 65DAA

Rice & Asplund [1979] FLC 90-725
Jones & Dunkell (1959) 101 CLR 298
Makita & Sprowles (2001) 52 NSWLR 705
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Johnson & Page [2007] FamCA 1235

Applicant:

MS MALLERY

Respondent:

MR LONDON

File Number:

PAC 4035 of 2008

Judgment of:

Harman FM

Hearing dates:

9 and 10 February 2012

Date of Last Submission:

10 February 2012

Delivered at:

Parramatta

Delivered on:

29 February 2012

REPRESENTATION

Counsel for the Applicant:

Ms Reynolds

Solicitors for the Applicant:

McNeilly Lawyers

Counsel for the Respondent:

Mr Sansom

Solicitors for the Respondent:

Hugh Byrne Solicitor

ORDERS

All prior parenting orders with respect to the child of the relationship [X] born [in] 2007 shall be and are hereby discharged.
[X]’s parents Ms Mallery and Mr London shall have equal shared parental responsibility for him subject only to Order three hereof.
Subject to the intention of Mr London to enrol [X] at [B] School not changing, then Mr London shall, subject to the balance of these Orders, be at liberty and to affect [X]’s enrolment at [B] School without further consent of Ms Mallery being first had and obtained.
[X] shall live with his father.
Until the commencement of Term One 2013 [X] shall spend time with his mother as follows:
(a)Each alternate weekend from 6pm Friday until 6pm the following Monday, first weekend to occur in accordance with the pattern of alternate weekend time that has occurred to date;
(b)Each intervening weekend from 6pm Sunday until 6pm Monday;
(c)For one half of each short New South Wales school holiday periods as occurs during 2012 and to commence 6pm on the day on which school breaks up or would break up were [X] attending school until 6pm the following Friday (and to the extent that it is necessary any weekend period of time that would otherwise occur during the remainder of the school holidays shall be suspended) and alternate weekend time (Friday to Monday) shall resume on the first weekend of school term;
(d)For one half of the Christmas school holidays commencing December 2012 and to occur, absent agreement between the parties to the contrary as follows:
(i)From 6pm 19 December 2012 until 12 noon 26 December 2012 and thereafter each alternate week for the same period to commence 6pm Wednesday and conclude 6pm the following Wednesday.
(e)Such further and/or other periods as is agreed between the parents from time to time.
Upon [X] commencing school Term One 2013:
(a)Each alternate weekend during school terms from the conclusion of school Friday until 6pm Sunday (extending to 6pm Monday in the event of a public holiday or pupil free day);
(b)For one half of each New South Wales short school holiday period as agreed between [X]’s parents or failing agreement from 10am on the first Saturday of each holiday period until 6pm on the middle Sunday;
(c)One half of the Christmas school holiday period in each year and to be the second half thereof in the 2013 (such period to conclude 6pm two days prior to the first day of school term) and each alternate year thereafter and for the first half in 2014 (commencing 10am on the day after school breaks up) and each alternate year thereafter and subject to the balance of these orders; and
(d)Such further and/or other periods as agreed between the parents from time to time.
During the Christmas Eve/Boxing Day period in each year and irrespective of any order to the contrary:
(a)[X] shall spend time with his father, in any year that Ms Mallery is to spend the first half of the Christmas school holiday’s with [X] from 12 noon Boxing Day until 7pm 27 December; and
(b)[X] shall spend time with his mother, in any year that Mr London is to spend the first half of the Christmas school holiday’s with [X] from 12 noon Boxing Day until 7pm 27 December; and
For the purpose of [X] spending time with Ms Mallery until the commencement of Term One 2013 that:
(a)Mr London shall deliver [X] to Ms Mallery at her home at the commencement of each period; and
(b)Ms Mallery shall return [X] to the father or paternal grandmother at [B] railway station at the conclusion of each period.
From the commencement of Term One 2013 and for the purpose of [X] spending time with Ms Mallery that:
(a)Ms Mallery shall collect [X] from his school or the father’s home at the commencement of each period of time whichever is appropriate; and
(b)Mr London shall collect [X] from Ms Mallery’s home at the conclusion of each period of time.
Each parent will authorise and do all things, sign all documents and give all consents necessary to enable any relevant health or educational professional and any school attended by [X] to provide to each parent copies of reports and any other reports, information or documentation relevant to [X]’s health and education.
Each parent shall keep the other advised at all times of their residential address, email address and telephone number/s (being mobile and, if connected to their residence, landline).
Each parent shall advise the other immediately of any significant illness or hospitalisation relating to [X] such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions and to visit and stay with [X] if hospitalised.
Pursuant to s.13C of the Family Law Act 1975 both parents shall forthwith and within 7 days contact the Keeping Kids in Mind Program on 1800 55 46 46 and arrange and attend the first available and offered intake appointment with a Family Advisor or Family Counsellor with the agency and to allow an assessment to be made by the agency of the most appropriate assistance that can be provided to them and including whether services, courses or programs provided by that agency or by referral to any other family relationship service or professional.
The parents shall then attend at such times, dates and places and pay such fees as are advised by the agency and continue to do so until that service, course or program is completed.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 4035 of 2008

MS MALLERY

Applicant

And

MR LONDON

Respondent

REASONS FOR JUDGMENT

These are proceedings involving competing applications for parenting orders.
The parties to the proceedings are the applicant mother, Ms Mallery and the respondent father, Mr London.
The proceedings relate to the child of the parties relationship, [X] born [in] 2007 and accordingly now aged 4 years.
[X] has an elder sibling [Y] born [in] 2006. [Y] is presently 5 years of age. [Y] is the child of Ms Mallery from a previous relationship and resides full time with Ms Mallery.
At the time of hearing these proceedings and, indeed, since [X] was approximately 8 months of age [X] has lived with his father and, as it has transpired, his paternal grandmother.

Material Considered

In the proceedings each of the parents has provided a case outline prior to the commencement of the trial. I have read each of the documents identified by each parties in their respective case outline and being:
a)In the mother’s case:
i)Application filed 24 September 2010;
ii)Affidavit of Ms Mallery sworn 17 September 2010 and filed 24 September 2010;
iii)Affidavit of Ms Mallery sworn and filed 12 January 2012.
b)In the father’s case:
i)Response filed 13 December 2010;
ii)Affidavit of Mr London sworn 31 January 2012 and filed 1 February 2012;
iii)Affidavit of Ms G sworn and filed 8 February 2012.
In addition to the material filed by the parties I have had the benefit of a Family Report produced by Family Consultant Mr L and dated 8 June 2011.
Each of the parents and the family report writer were required for cross examination and were cross examined.
The paternal grandmother, Ms G, whilst initial notice was given that she was required for cross examination was not ultimately required and, accordingly, her evidence is before the Court unchallenged.
A number of documents have also been tendered in the proceedings comprising, in Ms Mallery’s case, three photographs, and in the father’s case, two exhibits being copies of a number of pages of from Ms Mallery’s Facebook account and the tender of an earlier affidavit that had been sworn by him 21 August 2008 (to refute a suggestion put to him during cross examination that he had not previously raised with the Court in any document any concern or suggestion that Ms Mallery had consumed alcohol in a fashion that troubled him).

The Parties Proposals

The application filed by Ms Mallery proposed orders that [X] live with her, that the parties have equal shared parental responsibility and that [X] spend time with his father:
a)Until he commences formal education from 9am on the first day of each calendar month until 5pm on the seventh day of each calendar month
b)Once [X] then commenced school comprising the first full weekend of each calendar month; and
c)Other periods.
It is to be remembered that the application initially filed by Ms Mallery and which has never been formally amended was so filed at a time when Ms Mallery lived in relative proximity to [omitted]. At all relevant times Mr London has resided with his mother at [B] in the northern suburbs of Sydney.
Subsequent to the filing of the application and in late 2010/early 2011 Ms Mallery relocated to the Central Coast and has lived there since, being specifically in the suburb of [S].
The orders set out in the application do not accurately reflect the relief that is proposed by Ms Mallery. The orders that are proposed by Ms Mallery are, in fact, set out in the case outline document which was filed on her behalf by Counsel and was otherwise augmented in opening submissions.
For the sake of clarity Ms Mallery’s ultimate proposal is as follows:
a)That until [X] commences primary school in 2013 that he live in an equal shared care arrangement between his parents on a week about basis;
b)Upon commencing formal school [X] live with his mother and sister at [S] and spend time with his father for three weekends out of each four, one half of school holidays and other periods of time.
The orders sought by Mr London as set out in his response propose nothing more than the dismissal of Ms Mallery’s application. This is on the basis that existing orders were (and remain) on foot between these parents on a final basis.
In the proceedings and no doubt largely due to the effluxion of time since those orders were made (and noting that they were so made at a time when [X] was some 15 months of age) no Rice & Asplund [1979] FLC 90 – 725 issue is or has been raised in the case.
The orders that are in fact proposed by Mr London and as advised at trial are to the following effect:
a)That until [X] commences school (2013) that the present arrangement continue wherein [X] spends time with his mother each alternate weekend from Friday afternoon/evening until Sunday evening or Monday morning together with one half of each school holiday period;
b)Once [X] commences school in 2013 that the above arrangement continue and with time to conclude Sunday evening.
During the course of evidence and submissions a number of issues have become apparent and have been addressed by Counsel in submissions particularly relating to:
a)The involvement of each parent in school and other activities relating to [X]
b)Each parent providing and disclosing on an ongoing basis their address and relevant contact details;
c)Each parent advising the other promptly of medical issues and the like relating to [X];
d)The parties participating in programs to assist in their communication and problem solving.

Chronology

[Date omitted] 1982	Birth of Mr London
[Date omitted] 1984	Birth of Ms Mallery
18 December 2006	Parties began living with each other
[Date omitted] 2007	Birth to parties of child [X]
September 2007 – May 2008	Parties live in rented accommodation at [N]. Father was working as a [omitted]. Mother was at home. Father became increasingly concerned about the mother’s care of [X].
22.05.2008	Parties separate. Father leaves rented accommodation and moves into his parents’ home in [B] after mother telephones him to ask him to collect [X] from her friend [name omitted] home. The father alleges that at this time he has a conversation with the mother who says “That is for the better. I am unable to look after him at the moment. My best friend has overdosed, my life is fucked and I think I am going to have a nervous breakdown, I can’t handle it anymore”. The father contacts the Department of Community Services.
21.08.2008	Father filed an urgent initiating application seeking that the child live with him which was made returnable on short notice.
25.08.2008	Federal Magistrates Court, Parramattta Coram FM Henderson orders inter alia that the mother make the child available for collection by the father and matter listed for interim hearing 20 November 2008.
20.11.2008	Return date for interim hearing of the father’s application. The parties had settled their dispute and had consent orders made this day. Those orders provided, inter alia, for equal shared parental responsibility, for the child to live with the mother each Monday to Wednesday and each Thursday to Friday and at all other time with the father.
24.09.2010	Mother files present application in the Newcastle Registry.
13.12.2010	Parties directed to attend Family Dispute Resolution which took place on 17 January 2011.
31.01.2011	Federal Magistrate Coakes transfers proceedings to Parramatta.
17.02.2011	Directions and orders made, inter alia, for the preparation of a Family Report.
8.06.2011	Matter listed before FM Henderson. Mother does not appear. The matter listed as undefended hearing on 29 August 2011.
31.07.2011	When the father collects [X] he notices a mark near [X]’s left eye. The paternal grandmother took him the following day to the local doctor and correspondence exchanged.
29.08.2011	Mother attends represented by solicitor and counsel. Final hearing dates were confirmed and arrangements made to vary the orders to provide for [X] to spend time with his mother each alternate weekend from Friday 6pm until 11am Monday.
14.11.2011	Paternal grandmother collects [X] and notices that he was limping and has a laceration to side of his foot. She took him to Dr [omitted] that day which was the subject of further correspondence.
12.12.2011	[X] returned to the paternal grandmother and injured and distressed with cuts and bruises on his legs, a cut to his right foot, a burn on his knee and he was wet and shivering with cold. This is the subject of correspondence.
07.01.2012	[X] fell into a glass sliding door at the [C] property sustaining a cut to the let side of his face and under his left arm. He is rushed to [omitted] Hospital and had seventeen stitches to his cheek and nine to his underarm.

The Evidence

The material that is filed in the proceedings is somewhat deficient and is deficient on a number of levels.
The primary affidavit filed by Ms Mallery 12 January 2012 in large part repeats the earlier affidavit of August 2011. Both affidavits have been read.
Of more concern than repetition is the dearth of material contained within that affidavit. The January 2012 affidavit is of some 51 paragraphs and incorporating the 32 paragraphs of the earlier affidavit.
The affidavit material of Ms Mallery, excluding annexures, is some four and a half pages.
The evidence filed in Mr London’s case is not significantly greater. Excluding annexures Mr London’s material, which is in a larger font and greater line spacing, runs to some 9 pages.
The above comments are not intended to suggest that litigants should or must file prolix material with the Court. Indeed there have been a number of judgments delivered by myself and my brother and sister Federal Magistrates criticising overly detailed, complex and prolix documents. However, some balance must be drawn between material which provides a skeletal outline of past arrangements and that which purports to provide a detailed daily chronology of litigant’s lives.
The deficiencies in Ms Mallery’s case, however, also invite a number of Jones & Dunkell (1959) 101 CLR 298 inferences which have been spoken to by Counsel for the father in submissions. Those inferences potentially increase having regard to issues of credit which have also been raised in submissions.
The material provided by each of the parents has been augmented by the Family Report which has been the subject of some criticism particularly in the father’s case and to which I shall return.

Cross Examination

Ms Mallery, as the applicant, gave evidence first and was cross examined concisely and skilfully by Counsel for the father.
The cross examination of Ms Mallery commenced with questions relating to a Facebook page which is conceded by Ms Mallery to have been maintained by her since approximately 2001. Ms Mallery’s Facebook page and its contents were a significant element of her cross examination.
A number of entries from Ms Mallery’s Facebook page were put to her in cross examination although only two pages were ultimately tendered (Exhibit ‘F1’). It was not necessary to tender the balance of the material as Ms Mallery had made concessions as to the contents thereof as put to her.
What became readily clear from Ms Mallery’s Facebook page was that the accommodation which she lives at with her daughter [Y] is not occupied solely by her and her child as Ms Mallery’s evidence would suggest.
Ms Mallery’s accommodation as it ultimately fell from her evidence:
a)Is owned by her mother to whom Ms Mallery suggests she pays rent; and
b)The property also includes a detached, self contained granny flat in which a Mr E resides and which he has done so for at least four months. Ms Mallery’s evidence is that she has known Mr E for approximately 5 months.
Notwithstanding the above Ms Mallery’s Facebook page had suggested some four months prior to trial that she was engaged to Mr E.

Ms Mallery acknowledged that this had been posted to the page and that she had changed her relationship status (as had Mr E) to ‘engaged’ at that time. However Ms Mallery indicated clearly that this was done as “a joke”.
Upon returning to cross examination of Ms Mallery on the second day of trial pages from Mr E’s Facebook page were put to Ms Mallery and ultimately tendered. Those pages have Mr E referring to Ms Mallery as his “fiancé”. Those two pages also involve Mr E and Ms Mallery making comments to each other to the following effect:
a)Mr E “…love you sexy so much”;
b)Ms Mallery [in response to the above] “love you baby mwa…”;
c)Mr E “well it’s not 5.15am and up dressed ready to head to [omitted] see you soon kids and [Ms Mallery] I will be home around 6 have a cold one waiting for me please”.
d)Mr E “my sexy girl is the best and I love my fiancé so much thanks for making my life happier” this is followed by a symbol with an upraised thumb and quotes “Ms Mallery likes this”.

In fairness with respect to the above entry there is then a comment entered on the same day by Mr E reading “fucking hacked!!!!! NOT HAPPY [Ms Mallery]” This might give some support to the suggestion by Ms Mallery that material posted on either her or Mr E’s Facebook pages is in the nature of humour. Ms Mallery indicated that she knows the password to Mr E’s Facebook page. However, a potentially greater concern arises if such statements are in fact posted by Ms Mallery rather than Mr E as it might well be taken to suggest some intent or desire on her part for the statement to be true. No finding is made in that regard and such possibility was not raised with Ms Mallery.
The final entries in the tendered pages are for 14 January 2012 at which time Ms Mallery posts “love you bub” and Mr E responds “love you 2 sexy”.
Ms Mallery was cross examined at some length regarding a suggested relationship between her and Mr E. The basis for that suggestion clearly arises from the material posted by Ms Mallery and Mr E to Facebook as referred to above.
Ms Mallery indicated with respect to Mr E that she sees him each day as he lives in the granny flat behind her. Ms Mallery otherwise indicated:
a)She cooks the evening meal for herself, the children in her household at any time and Mr E each day;
b)She does Mr E’s washing “if I’m doing a load”;
c)Mr E has a key to her home (which Ms Mallery explained on the basis that the side gates to the property through which he would otherwise access the granny flat are locked to avoid her dogs escaping and she has not given him a key to that lock).
The concerns with respect to Mr E are compounded by the absence of material provided by Ms Mallery with respect to him. Ms Mallery suggests that Mr E had moved into the granny flat at her home after her brother had left it and approximately four months prior to trial (although Ms Mallery’s initial answer had been that he had moved into the accommodation only one month before trial and it was on that basis that one can infer no reference had been made to him in her affidavit).
Ms Mallery also suggested that Mr E had moved into the property a short time after having completed an eight month jail sentence arising from being apprehended and ultimately convicted for three events of drink driving within a three month period.
When questioned as to Mr E’s drinking habits at the moment, she indicated that he does still drink but not very much and generally consumes “a long neck of rum” after work. Ms Mallery indicated that she and Mr E had consumed alcohol together at times and whilst questioned about a police attendance in relation to noise at her home during 2011 and whilst conceding that this had occurred, she indicated this related to her younger brother who had been playing loud music in the granny flat which he then occupied.
The Facebook pages in relation to Mr E certainly suggests that he continues to drink notwithstanding the misfortune that his consumption of alcohol had bought him leading to imprisonment.
None of the above is intended to suggest that Mr E represents some inherent risk or is undesirable as regards [X]. However the concerning elements with respect to the evidence relating to Mr E are:
a)I have no confidence in and do not accept Ms Mallery’s evidence that she is not in a relationship with the gentleman; and
b)His alcohol consumption would appear historically if not presently to be problematic and would cause the basis for some concern (absent his evidence) regarding same.
Entries from Ms Mallery’s Facebook page were also put to her other than with respect to Mr E. The most concerning of these is an entry posted by Ms Mallery during 2011 to the effect (the document not having been tendered but its contents put to Ms Mallery) “fuck fuck fuck fuck fuck. I want my fucking son. Whatever looks better for me in court”
I do not purport to suggest that the above is an accurate transcription of the question put to Ms Mallery but is the detail recorded by me of the question put and to which Ms Mallery agreed was an entry in fact posted by her.
It was then put to Ms Mallery that the reference to “whatever looks better for me in court” would lead a reasonable person to form the view that she was prepared to make statements which were not true or which were exaggerated for her benefit. Ms Mallery somewhat disingenuously responded “will it?”.
When Ms Mallery was then asked to explain why she would otherwise write it her response was, again, somewhat disingenuously “I was probably in a bad mood or wanted to”. It was again put to Ms Mallery that it would give the impression that she would say things purely to make her case look better whether they were true or not and her response was somewhat tellingly “probably”.
It is sufficient to remark, at this time, that I am satisfied from the totality of Ms Mallery’s evidence, her demeanour in the witness box and the areas of her evidence which were found wanting exaggerated or omitted, that I adopt that inference.
A substantial criticism was raised in Ms Mallery’s affidavit material, in her interviews with the report writer and during her brief evidence in chief, that Mr London fails to support, encourage and foster her relationship with [X]. This would appear, from Ms Mallery’s evidence as it stood following cross examination, to not, in fact, be a significant criticism or concern for her.
It was put to Ms Mallery that it was her suggestion that Mr London failed to foster her relationship with [X]. Ms Mallery’s response was “I don’t know, I’m not there when [X] is with him”.
It ultimately transpired, particularly through cross examination of

Mr London and the line of questions put, I accept on instructions from Ms Mallery, that the criticism of Mr London in this regard is that he did not agree to proposals that were put by her and had, in the past, been put by Ms Mallery as to her time with [X]. This particularly related to a period when Ms Mallery had moved from the northern Sydney area and where she had resided when the parties were still together ([N]) up to the [omitted] area. At that time and without the need for any Court intervention or application arrangements had been put into place for [X] to spend time with his mother for one week each four weeks. Ms Mallery’s criticism would appear to be, with respect to this arrangement, that she had proposed a week about arrangement and that Mr London had declined. It is to be remembered that at the time of this move [X] was less than three years of age and one would doubt the age appropriateness of such an arrangement in any event.
The above issues were somewhat reflective of the general tone and presentation of Ms Mallery in the witness box wherein her concern appeared to be largely with “fairness” as regards her relationship with her son and the perceived injustice, on her part, of Mr London having “taken” [X] from her at the time of separation (together with a criticism as to the manner in which Mr London had communicated his desire or intention to separate if not the reality of same).
During cross examination Ms Mallery was otherwise questioned at some length regarding the time that she had spent with [X] and in particular diminutions of same that had occurred at her request. This particularly related to an arrangement that had been in place between the parties (again without the need for Court intervention or orders) wherein Ms Mallery would have [X] in her care each alternate weekend from Friday until Monday afternoon. Ms Mallery ultimately requested a change in this arrangement after a period of some months wherein [X] was in fact returning on Sunday afternoon rather than Monday afternoon due to difficulties Ms Mallery had with transport or affording transport to changeover. Ultimately arrangements were varied so that [X] would be returned to the paternal grandmother (whose role in providing any care for [X] was subject of criticism by Ms Mallery) on Monday mornings.
The above difficulties are not intended as a criticism of Ms Mallery for the sake of it. She quite clearly referred to the care of her daughter who has, since 2011, been attending school and her obligation to collect her from school in the afternoon being problematic in [X]’s care arrangement. However, there have been other occasions when Ms Mallery conceded in cross examination that she simply could not afford the train fare of $2.40 to travel to changeovers and had arranged for [X]’s collection on Sunday.
No other witnesses were called in Ms Mallery’s case. This created a number of difficulties as regards Ms Mallery’s evidence particularly as:
a)Ms Mallery’s mother had been included in Family Report interviews. Those paragraphs of the report (14 – 16) were ultimately struck out of the Report on the basis of the Makita & Sprowles (2001) 52 NSWLR 705 issue that would have arisen bearing in mind that she was not called as a witness);
b)Ms Mallery gave evidence that her transport difficulties may well be alleviated or ameliorated in the foreseeable future when her mother, presently living on the North Coast, sells her accommodation and moves to the Central Coast area. It was suggested that Ms Mallery’s mother would then be able to assist her with transporting the children and, in particular, assisting in getting Ms Mallery’s daughter to and from school if this would assist in freeing Ms Mallery to attend to travel arrangements with [X] or assisting in transporting Ms Mallery and [X] together.
c)No explanation was offered as to why evidence was not called from Ms Mallery’s mother and clearly there was no practical difficulty in her giving evidence as she was present at Court during the hearing.
A very real and live Jones & Dunkell issue accordingly arises with respect to this absent evidence.
On the basis that I am satisfied that Ms Mallery is in all probability engaged in some form of relationship (whether on a fulltime de facto basis or otherwise) with Mr E a Jones & Dunkell inference also arises as regards the absence of his evidence.
Otherwise I am not satisfied that Ms Mallery’s evidence can or should be accepted by me save where there is corroborative evidence (which is not available save in one limited circumstance arising from the father’s evidence) or save where concession is made by Mr London.
The above is particularly so with respect to aspects of Ms Mallery’s evidence which could not be other than falsified or deliberate attempts to minimise material that would not be of assistance to her case.
It is suggested in the father’s case, for instance, that Ms Mallery had on 10 – 12 occasions requested that he collect [X] on a Sunday afternoon rather than her returning [X] on Monday to assist Ms Mallery overcome transport difficulties. This evidence was given both by

Mr London and the paternal grandmother whose evidence is unchallenged and which evidence, as I have indicated, I accept on that basis and without reservation.
When this issue was put to Ms Mallery she insisted that it had not and would not have occurred more than four times. However, in a later portion of her cross examination Ms Mallery conceded that there had been a period of “at least two months” when this had occurred on each and every weekend.
On balance I prefer and accept Mr London’s evidence and that of his mother with respect to this issue and all others where there is a conflict or inconsistency between their evidence.
A significant factual dispute also arose between the parties regarding the immediate period from separation in May 2008 until August 2008. The specific issue in this regard was a suggestion by Mr London that he had proposed a number of periods of time that [X] would spend with Ms Mallery and that Ms Mallery had declined for a variety of reasons. Ms Mallery initially indicated that she had not declined on any occasion. She subsequently varied this to indicate that whilst she had a clear recollection of May she was less clear regarding the period June to August and accordingly could not remember whether it had occurred or not. She was reluctant to concede that it might have. I am satisfied that I should, again, accept Mr London’s evidence in this regard.
In dealing with Mr London’s evidence his cross examination was largely focused upon issues relating to his work hours, suggestions that as a consequence of same or otherwise that he was rarely engaged in caring for [X] and that the majority of care fell to his mother, suggestions that he was, in fact, residing on the Central Coast and within close proximity to Ms Mallery’s home (which was denied) and criticism of his attitude towards Ms Mallery and his alleged failure to fully and properly maintain or facilitate or encourage a relationship between [X] and his mother.
Prior to his taking the witness box Mr London had, through his Counsel and by provision of instructions to them during Ms Mallery’s cross examination, made an admission against interests. An issue arose in the proceedings relating to Mr London’s physical removal of [X] from his mother’s care in August of 2008. At that time Ms Mallery had attended at the day care centre at which [X] was placed and had removed him and Mr London then attended upon Ms Mallery and physically removed [X] from her care and returned him to his own.
Ms Mallery was cross examined regarding events in relation to the above and it was suggested to her that her version of events (wherein she has asserted that Mr London had sat upon her pinning both of her arms to the floor with his knees and removed [X] from her stomach where he had been sitting) was invented. Mr London interrupted his Counsel and provided instructions to concede that he had, in fact, physically removed [X] from her care and by pinning one of her arms to the floor with his knee and holding her other hand and taking [X] from her.
In cross examination Mr London was questioned regarding this matter and gave the same, consistent evidence.
It would have been open to Mr London to not interrupt his Counsel and to not create the circumstance which then arose. Clearly instructions had not been provided of a contrary nature to that which was ultimately conceded by Mr London. That Mr London had taken that step and then consistently conceded his acts together with his concession that it was inappropriate and should have been handled differently is of some credit to him (although the initial actions are not).
Mr London’s evidence otherwise indicated that he works Monday to Friday although regularly is able to have Friday off. His hours of work are such that this requires him to drop [X] to preschool/day care at about 8am and collect him at about 5.30pm. From time to time,

Mr London’s evidence suggested, he receives some assistance from his mother in transporting [X] to day care and that this might occur one day per week but infrequently. Mr London was clear in his evidence that he always collects [X] from day care in the afternoon. The paternal grandmother, consistent with her evidence, otherwise cares for [X] one day per week and also assists with changeovers on Monday mornings of the weekends that [X] has spent with his mother.
Questions put to Mr London during cross examination suggested a substantial criticism of him for not facilitating [X]’s relationship with his mother. These criticisms particularly focused upon the period immediately following separation May 2008 until August 2008.
Mr London’s evidence, as indicated above, is that he had made some arrangements for time and had made offers of time to Ms Mallery which had been rejected or declined. Mr London was criticised for having removed the child from Ms Mallery’s care at the time of separation and particularly on the basis that Ms Mallery was, at that time, highly distressed as a consequence of the death of a close friend (her brother’s girlfriend) as well as the recent disclosure that she had experienced sexual abuse as a child.
Mr London’s responses with respect to this evidence were somewhat compelling. It is also to be noted that Ms Mallery’s evidence in chief was that she had no difficulties in caring for herself or either of the two children living as part of the unified household at that time or in coping generally and being somewhat contrary to the proposition posed to

Mr London.
Mr London indicated that he had been called by Ms Mallery while she was at the home of a friend “[name omitted]”. Mr London was somewhat critical of this person and her household and suggested that drugs and alcohol were a common feature of activity at the home. He suggested that when he attended at the home [X] was dirty and unkempt and his nappy was smelly (and by inference that he had not been changed when he should have been). He suggested that he requested that he take the child with him for the night and did so and he then determined in light of a number of concerns which had been building to not return the child and to end the relationship.
The events that then passed between May and August 2008 do not provide great credit to either of the parents. However, I accept

Mr London’s evidence that he had acted on the basis of concerns that he held at the time and, as I accept his evidence over that of

Ms Mallery, including that Ms Mallery was having far greater difficulty in coping with day to day functioning than she has conceded in her evidence.
The criticisms after the above period seem to relate to the refusal of

Mr London to agree with Ms Mallery’s proposals of her time with [X]. This had related particularly to the period following the move to the North Coast as well as arrangements once Ms Mallery had returned to the Central Coast. It is important and instructive to note, however, that the parties had, prior to any of the above negotiations, entered into consent orders. Those consent orders, made 20 November 2008, provided for an arrangement whereby [X] was to be in his mother’s care from Monday morning until Wednesday evening and from Thursday evening until Friday evening each week (subject to an ability to suspend that arrangement from time to time) and to be in his father’s care from Wednesday afternoon until Thursday afternoon each week as well as Friday afternoon until Monday morning each week. The above orders remain on foot. They have never been varied or discharged.
On 29 August 2011 and to reflect the then agreement between the parties (referred to above) further interim parenting order was made by Federal Magistrate Henderson which provided that [X] would spend time with his mother each alternate weekend from 6pm Friday until 11am Monday “or thereabouts”. That order, it would appear from

Ms Mallery’s evidence, was made with her consent and to provide for the practical and logistical difficulties she was then experiencing in transporting the child on Monday afternoons.
In light of the above orders there was no requirement for any arrangement to occur other than that contained in the Court orders. More fundamentally, however, Ms Mallery’s criticism would seem to simply be that Mr London did not agree to her proposals and was, accordingly, failing to support her relationship. This would assume that Ms Mallery, at all times, knew what was best.
Mr London was criticised regarding two periods of alternate weekend time that he had withheld from Ms Mallery. One of these related to an occasion when [X] had been returned to him with a significant carpet burn to the side of his face. Some correspondence would appear to have passed between the solicitors for the parties regarding this and seeking further detail and explanation. Ultimately time resumed with one weekend missed.
Criticism is also raised regarding [X] not having been provided to the mother on a weekend that would have included [X]’s birthday.

Mr London explained this was on the basis that the parties were to attend Court on the Monday following the weekend and changeover could not occur as scheduled and accordingly he had kept [X] in his care. Mr London expanded to indicate that [X] had been in his mother’s care for his birthday the preceding year and having [X] in his care for this birthday was part of his motivation. Mr London was substantially criticised for this portion of his answer and suggesting that he should have recognised the benefit to [X] of spending his birthday (or presumably some portion thereof) with his mother. However, I am satisfied that such a position, absent any evidence or suggestion that the mother felt a similar position as regards [X] spending time with his father the preceding birthday, is not warranted.

Mr London had indicated with respect to the incident relating to the carpet burn to the child’s face, that he had felt that this had reflected poor parenting “on Ms Mallery’s part”. In that regard, as was submitted, Mr London’s position has been harsh and unnecessarily judgmental. However, that does not, as was submitted should be the case, cause me to form the view that Mr London does not or is not capable of discharging his obligation, under the Family Law Act1975, to support and encourage this boy’s relationship with both of his parents.
The cross examination of Mr London regarding the suggestion that he was residing permanently on the Central Coast did not result in any concession by Mr London beyond his spending weekends (whether each or each alternate) at the home of friends on the Central Coast. It would appear to provide some benefit in any event as Mr London’s evidence is that he is regularly able to have Friday’s off and spend time with [X] and, in any event, this aides in the delivery of [X] to his mother’s home at the commencement of periods of time.
Mr London was also criticised with respect to the arrangement and negotiation of two one week block periods of time (as ordered 29 August 2011) to occur during the 2011/2012 Christmas holidays. This criticism expanded to also include the fact that Mr London had not provided [X] to his mother for the weekend that had included Christmas Day which would otherwise had been a weekend that [X] was to spend with his mother based on the pattern of weekend time that had occurred.
A number of pieces of correspondence were either annexed to Mr London’s material or cross examined on relating to the settlement negotiations which led to ultimate agreement that two one week periods occur being from Boxing Day 2011 until 2 January 2012 and from 6 to 13 January 2012. It ultimately fell from Mr London’s evidence that the latter of the two periods was varied at Ms Mallery’s request and that the former period was cut short when Mr London had requested that he be able to take [X] to New Years Eve fireworks and that this had occurred and that [X] had stayed in his care.
The issue regarding the weekend upon which Christmas Day fell was otherwise complicated by the existence of the conflicting interim order made 29 August 2011 and the extant final parenting order made 20 November 2008 which made clear and specific provision for Christmas Day and which provided for [X] to be in his father’s care Christmas Day 2011.
I cannot be critical of Mr London regarding the above events in relation to the Christmas school holidays and Christmas Day.

Mr London was entitled, pursuant to final parenting orders, to have [X] in his care and it would appear consistent with those orders that [X] would spend Christmas Day 2011 in his mother’s care.
With respect to the two one week periods it was asserted that the times ultimately arrived at were those imposed or at least proposed by

Mr London. However, there was a meeting of minds between the parties, an agreement as to when the week would occur and ultimately a change to those arrangements instigated by Ms Mallery. Curiously the correspondence annexed to the material relating to those negotiations had included in correspondence 13 December 2011 from Ms Mallery’s attorney’s to Mr London’s attorneys and I accept on her instructions the phrase “our client is not willing to negotiate outside of those orders [being the orders of August 2011]”. To the extent that it is suggested Mr London is being dogmatic and dictatorial it would appear equally clear that Ms Mallery is at least equally open to such criticism.
Mr L was cross examined, again skilfully and succinctly, regarding his report. Mr L’s report was initially objected to on the basis that the recommendation contained therein (for an equal time arrangement) were not supported by any chain of discussion or logic as would support the conclusion or recommendation. On its face and with respect to the report writer this appears so.
Mr L’s report, I am satisfied, was plagued by a number of deficiencies and these were, in some part, accentuated by Mr L’s cross examination.
Whilst Mr L recommended an equal shared care arrangement it was conceded by him in the witness box that this clearly would become impracticable upon the child commencing school. However, no such limitation or caveat was contained within the report or its recommendation.
When the basis of the recommendation was explored with Mr L it was made clear by him that the period before [X] commenced school should be used to work upon strengthening [X]’s relationship with is mother. This had been addressed in paragraph 31 of the report on the following terms:
“Thus the child’s relationship with Ms Mallery appears sufficient for him to cope with less time with his father and more time with his mother. He is not yet four years old and at this stage of development the continued dominance of his father and his father’s family as [X]’s primary carers may lead to a reduction in the significance of his relationship with his mother [this statement not being explained] he’s at an age where the basis for fundamental substantial relationships is formed. And it might be noted that whilst Mr London appeared not to place value on [X]’s relationship with his mother Ms Mallery appeared more inclined to maintain the child’s relationship with his father for whom she had some positive regard”.
In paragraph 33 Mr L remarked:
“Leaving aside Mr London’s assertions regarding Ms Mallery’s parenting ability this assessment indicates that [X] would benefit from spending more time with his mother. Therefore given the value of both parents to the child and their lack of mutual hostility this assessment indicates that an equal care parenting arrangement might apply at least until [X] starts school… for now it is considered that [X] needs the opportunity to maintain a relationship with both parents and to deepen his relationship with his mother”.
Otherwise in the report Mr L had opined at paragraph 26 that:
“Ms Mallery and [X] interacted closely throughout the session; their relationship appeared to be intimate and loving”
And at paragraph 30:
“He related to each parent with equal enthusiasm and affection he also appears to be emotionally close to his maternal and paternal grandparents. The parenting arrangements so far have met the child’s needs and have contributed to his healthy development… he is well established within their [the father’s] household and is apparently closely connected to Mr London’s parents and sister”.
The above statements would appear to represent something of a quantum leap, however, from the suggestion that there should be more time to enable his presently observed and opined close relationship with his mother to further develop.
In cross examination it was put to Mr L that there might be other means by which such a strengthening could occur without equal time occurring. Mr L readily conceded that the father’s proposal of alternate weekends and half school holidays would be sufficient perhaps with the addition of one overnight visit in the “off” week. It was also suggested by Mr L during cross examination of Mr L by Counsel for Ms Mallery that one night, whilst a benefit, should not be taken as being the definitive response although it would provide a benefit.
A number of Makita & Sprowle issues arise with respect to the report particularly as:
a)The maternal grandmother has given no evidence and, accordingly to the extent that Mr L has relied upon material provided by her in interview I am inclined to and have excluded same.
b)Ms Mallery would appear to have withheld a quantity of information particularly regarding her relationship post separation and her present relationship which would have been of some relevance and was conceded as such by Mr L;
c)Mr L would appear to have accepted (whether based entirely upon Ms Mallery’s suggestion or otherwise) that Mr London and his mother are less likely to support the child’s relationship with her. As discussed above the factors which have been expressed by Ms Mallery as supporting this view, if held by her, would not appear to be objectively based; and
d)Mr L would appear to have accepted that these parents have healthy communication which is functioning and effective. The evidence (and particularly arising from Ms Mallery’s criticisms of Mr London in that regard) would suggest to the contrary.
Following cross examination of Mr L I am concerned that the weight that I should attach to his report without intending any disrespect to him as an experienced family report writer with whom I am highly familiar, is lessened as a consequence of these evidential issues. A large number of these evidential difficulties have come about as a consequence of Ms Mallery’s evidence or lack thereof and have otherwise been created by her.

The Applicable Law

As has been made by the Full Court in cases such as Goode & Goode (2006) FLC 93 – 286 and Marvel & Marvel [2010] FamCAFC 101 and by the High Court in MRR & GR [2010] HCA 4 the Court is mandated in all parenting determinations to follow the legislative pathway.
I am required to first turn to and consider the objects and principles as follows:
The objects 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.
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).
The objects and principles do not form part of the substantive law and are not applied to the facts of the case. However, the objects and principles are designed to assist in the interpretation and application of the substantive provisions of the legislation.
The objects and principles create a number of rights for [X] consistent with rights created by the International Convention on the Rights of the Child.
The Court is then required to turn to s.60CA of the Act which reminds the Court that the child’s best interests are the paramount consideration in all that the Court does.
I am then required to turn to and consider the presumption of equal shared parental responsibility set out in s.61DA.
The presumption does not apply, pursuant to sub-s.2, in circumstances where the Court is satisfied that there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of a child) is or has engaged in abuse or family violence.
Sub-s.2 is not phrased in permissive terms. In the event that there are reasonable grounds for a finding of family violence then the presumption simply does not apply.
Family violence is presently defined in s.4 of the Act which provides:
“family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”
Based on the concession made by Mr London I am bound to find that family violence has occurred. Accordingly, the presumption of equal shared parental responsibility does not apply.
The application and non application for the presumption does not dictate the making of any particular order with respect to parental responsibility. All that the presumption requires is that, if it applies, the Court is mandated pursuant to s.65DAA to consider each of equal and substantial and significant time prior to considering any other time arrangement.
In the event that the presumption does not apply the Court is not enjoined from making an order for equal shared parental responsibility. That is a separate exercise and a separate determination and exercise of discretion based upon relevant considerations under Part VII of the Act.
Both of the parents in these proceedings propose that an order for equal shared parental responsibility be made. I propose to do so. I hasten to add that to do so is not to suggest, expressly or impliedly, that the actions undertaken by Mr London and conceded by him in August 2008 are condoned. Violence of any nature by any parent towards the other parent (irrespective of gender) is inappropriate and unacceptable. However, the act which has occurred and conceded by Mr London is the only incident that is referred to in the evidence of any nature that could be described as family violence. In those circumstances I am satisfied that I can appropriately classify that act as situational violence as opposed to more serious or concerning violence as might arise in the nature of coercive or controlling violence or violence of deep seated nature or of long duration.
I am otherwise satisfied that it would be in [X]’s best interests for each of his parents to continue to be actively and fully involved in decision making regarding his future arrangements and in particular the major issues decisions (as defined in s.4) that will continue to arise.
The only exception to the above relates to [X]’s schooling. Each of the parents has conceded in their evidence that [X] will need to live primarily with one of them upon commencing school in 2013. Each has proposed a local public school proximate to their residence. Provided that neither parent seeks to vary their view as to the school that [X] should attend I am satisfied that [X] should attend the school that each parent has presently identified and will, to avoid future dispute between the parents between now and the commencement of school and perhaps more sagely to avoid the potential need for further proceedings in the event that disagreement should arise and noting that this would be somewhat artificial as each parent has clearly given their evidence in this regard and made the concession regarding the child’s school needing to be proximate to his primary residence, make an order that save in the event that either parent’s proposal changes that [X] will attend the school selected by the parent with whom he will primarily live.

Time and Living Arrangements

As I am satisfied that the presumption of equal shared parental responsibility applies I am not mandated to consider equal or substantial and significant time pursuant to s.65DAA. However, the non application of the presumption does not preclude such consideration occurring and both for the sake of completeness and less I am wrong as regards the non application of the presumption I propose to consider both equal and substantial and significant time arrangements.
Prior to doing so however I will address the relevant factors which require consideration pursuant to s.65DAA(5) and s.60CC.

Reasonable Practicality

Whilst a number of Single Instance and Full Court decisions of the Family Court have made clear that considerations of reasonable practicality under s.65DAA(5) can usually and most conveniently be dealt with and addressed as part of the consideration of s.60CC factors I propose to deal with and consider them separately in this instance.
Both parents have conceded that upon [X] commencing school in 2013 that it will be impracticable for him to spend equal time or, one would presume, substantial and significant time with the other parent and each concedes and proposes that [X] would live primarily with one parent during the school week.
Having regard to the above concessions the contentious consideration of reasonable practicality of equal or substantial and significant time is confined to the period from the present until [X] commences school in January/February 2013.

How Far Apart the Parents Live

In this case, as is increasingly common, the parents live some little distance apart although not an insurmountable number of kilometres.
Ms Mallery lives on the Central Coast in [S] and Mr London lives in the northern part of the greater Sydney metropolitan area at [B]. The only evidence which I have in relation to travel time on Mr London’s part is that it takes him approximately 90 minutes to drive from his place of employment to Ms Mallery’s home. However, Mr London’s place of employment is some 30 – 40 minutes from [B] and inferentially it would appear that the trip from [B] to [S] is or should be less than an hour.
Ms Mallery has a number of difficulties with transport at present in that she does not drive. As a consequence Ms Mallery is dependant on public transport which she has described as being a train which takes approximately one hour to travel from the most convenient railway station proximate to her home to [B]. However, prior to this she needs to catch two buses and as she indicated in her evidence the time of each of the three legs of the trip are made more complex by the need for various timetables and schedules to align. Accordingly, Ms Mallery’s evidence is that it takes her at least 2 hours and sometimes up to 3 hours to make the trip from her home to [B] or back.
Having regard to this distance and these difficulties I am not satisfied that an equal time arrangement is precluded during the period before [X] commences school. However, it is a significant amount of travel which one must have regard to.

Parents Current and Future Capacity to Implement the Arrangements

A significant submission in Ms Mallery’s case is that she is available to spend time with [X] at any time as she is not in paid employment. Indeed it was put in submissions in Ms Mallery’s case that the present arrangement (wherein [X] primarily lives with his father and spends alternate weekend time with his mother) is the least ideal arrangement as Ms Mallery could care for [X] during the week while Mr London is working and Mr London, when he is free from work on weekends, could spend time with [X]. I do not accept that this is so.
It is not the role of the Court to socially engineer families whether they are intact or separated. Further, it is not the role of the Court to discourage a parent participating in paid employment or indeed to suggest that there is some inherent differentiation between or preferability in favour of parents who do not work compared to parents who do.
The role of parenting is far more complex and expansive than simply providing day to day physical care for children. This is recognised in the Act and indeed recognised in s.65DAA(3) and the definition of substantial and significant time.
I am satisfied that there is a significant benefit to this child (and even leaving aside the concession by both Mr L and Ms Mallery that the child has thrived and developed well whilst in the father’s care) of being part of a household and experiencing their parent as part of same and sharing in the various events, activities and different behaviours that comprise life.

I am satisfied that both parents, with such assistance as they require in the nature of child care services or assistance from relatives are capable of implementing any arrangement for this child’s care.

Parents Current and Future Capacity to Communicate

The evidence of the parents would each suggest significant difficulties with their trust of the other and ability to communicate with the other.
Ms Mallery was less critical of communication issues although her evidence, whilst on its face positive, suggested that communication was moribund. Ms Mallery suggested that there is infrequent communication and that such as occurs when [X] is dropped off by his father is brief and generally lacks detail. A specific example of this occurred in January 2012 when [X] had been significantly injured in his father’s home by walking into a glass door which shattered causing a significant and potentially blinding cut to the child’s face and eye area (as well as other parts of his person). This had occurred on a Saturday and Ms Mallery was not advised of it until the following Monday evening notwithstanding the child had been to two hospitals and had undergone surgery under general anaesthetic.
Mr London for his part suggested that he had not contacted Ms Mallery for two reasons being:
a)He was committed to the child’s full time care and did not wish to leave him at that time. This answer was not particularly helpful to his position; and
b)That he had been anxious to avoid a scene at the hospital or arguments or “explosions” on the phone. It would appear that when the conversation ultimately occurred there was no complaint of argument. However, the distrust and inability to trust by each parent of the other seems manifest.
It is with the above in mind that I had raised with Counsel for each of the parties during submissions as to whether there would be consent to an order pursuant to s.13C of the Act for the parents to participate in a Post Separation Parenting Program to endeavour to assist with their understanding of and insight into the importance of communication between them for the sake of this small child and each has, to their credit, given their consent.
The above comments are not intended to sound vastly critical of these parents individually or jointly in relation to their communication. Post separation communication is difficult and is a learnt skill. However, no significant attention would appear to have been paid, to date, to means or strategies that might be assisted and improved as it will not likely improve itself.
Further one should not be unduly critical of these parents with respect to their communication as they have, by and large, managed to make arrangements between themselves with respect to a very small child and notwithstanding significant practical difficulties and distance between their homes (at most times) without the need for or recourse to significant Court intervention. The initial proceedings between the parties had arisen following the events in August 2008 to which I have referred, but were settled at an early opportunity by final and comprehensive orders being made by consent. Since November 2008 the parties have operated and put into place a variety of arrangements at different times without the need for Court orders. That is entirely to their credit and a reflection of their child focus.
Notwithstanding the above I am satisfied, however, that the parent’s current capacity to communicate and resolve difficulties with each other is such that an equal or substantial and significant time arrangement would be plagued with difficulties, real or potential, and would not, at this point, meet the child’s best needs.

Impact of Time Arrangements on the Child

This is a significant issue in this case. Clear and persuasive submissions were put in the father’s case that one should be cautious in moving too far away from arrangements that are presently well settled and have been in place since this child was approximately 8 months of age (he now being four and a half).
The Full Court has been clear that status quo is not a determinative element in parenting proceedings. However, status quo is relevant as regards a demonstration of that which can be accepted to work (as it does in this case) to a child’s advantage.
The added complexity as regards significant movement from present arrangements which are well settled in meeting this child’s needs arises from the difficulties I have with Ms Mallery’s credit as a witness. On that basis I am asked to take a significant step in changing the child’s arrangement which have, for some 15 months or so, involved him living with his father and paternal grandmother and spending time with his mother (and sister) each alternate weekend. Block periods have recently occurred.
I am asked by Ms Mallery to change the above to an equal time arrangement. Whilst Mr L has opined that the child would cope with more time with his mother and less time with his father I am not satisfied that such a significant step is something that this child would necessarily cope with at this time and particularly as a number of the factors upon which Mr L has based his opinion would appear to not be supported by the evidence.

Section 60CC

I am required to commence by considering the primary considerations being:
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.
At this point in this child’s life I am not satisfied that there is a need to protect the child from physical or psychological harm whilst in the care of either parent. I am not satisfied, by reference to paragraph 62 – 72 of the Full Court’s decision in Johnson & Page [2007] FamCA 1235, that there is an unacceptable risk of harm to the child in either parents care and nor is any suggested by either parent.
The above is not to suggest that were this case being heard and determined in mid to late 2008 that I would not have some more significant concern having regard to the evidence given by Mr London regarding events at that time (which evidence I accept). However, I have some comfort that by no later than November 2008, when consent orders were entered into, Mr London’s concerns had also abated. I am satisfied that it could not be otherwise in light of the periods of time that Mr London agreed this little boy would spend in his mother’s care.
The matters that have subsequently arisen that have caused concern to Mr London and particularly the one occasion when [X] was withheld from his mother following the carpet burn to his face do not satisfy me that there has been any deliberate injuring to the child or anything other than misadventure as described or similar to that described by

Ms Mallery.
The need to protect the child from physical or psychological harm must always, in my mind, outweigh the primary consideration relating to the benefit of the child having a meaningful relationship with both parents. This would seem intuitive as:
a)If the child is not safe then the meaningful relationship must be compromised rather than the child’s safety; and
b)If a child is not safe it is difficult to envisage a circumstance in which the child’s relationship could develop meaningfully with that parent lest the child were oblivious to the risk into which they were placed.
In any event and as I have found above I am not satisfied that there is any unacceptable risk that [X] needs to be protected from in the care of either parent. Accordingly I have the luxury of focusing upon the benefit to [X] of having a meaningful relationship with both (emphasis added) of his parents.
I accept that portion of Mr L’s evidence that the period until [X] commences school can and should be used to maximise the strengthening of the relationship between [X] and his mother. However, time is not of itself the determinant of this.
It is simple to envisage circumstances in which a parent can develop and maintain a meaningful relationship with a child with less than equal time. The social science literature that has been referred to in the cross examination of Mr L and in large part adopted by him, makes clear:
a)Attachments are not transferrable; and
b)Time arrangements should be crafted to the child’s needs as regards the development of a relationship.
The crafting of time for a child of this age, consistent with Mr L’s evidence and the social science to which he has been taken, makes clear that children of the age of [X] require a stable environment, a consistent schedule and a secure attachment with the parent whose care they are leaving to spend time with the other parent.
I have no doubt that [X] enjoys a secure attachment with each of his father and paternal grandmother and that he presently lives in a stable environment and has a consistent schedule in those arrangements.
Mr L had added to this that, in his view, the more significant factors upon which a recommendation of shared care would be predicated is the child’s emotional security and capacity to cope with separation from a parent which he felt was present with [X] and would be present when parents are fairly amicable.
Mr L was unshaken in his view that [X] would benefit from a strong attachment and strong, meaningful relationship with both of his parents and I respectfully agree with his opinion. However, Mr L had also tempered this position somewhat by suggesting that difficulties might arise if the child was experiencing one or more of the following:
a)Travelling between environments in which parenting arrangements were substantially different;
b)A lack of consistency within parenting arrangements and practices;
c)A difficulty in adjusting to those differences; and
d)If the child could not look at both parents and perceive that they were working together as a team (which the child in all probability would then perceive as conflict). Similarly Mr L conceded that an absence of communication would contraindicate shared care particularly in the form of equal time.
Notwithstanding the above opinion and the various criticisms that were raised by each parent of the other and, in particular, by Ms Mallery regarding Mr London’s attitude towards her relationship with [X],

Mr L had observed and reported upon a significant and secure relationship for this little boy with each of his father and his mother and that [X] lived in an arrangement in which he was observed to be well developed.
The observations I have made above and the portions of the report that I have quoted make clear that Mr L observed an emotional closeness between [X] and his mother. That is not to suggest that the relationship could not be further strengthened (being one of the motivations suggested by Mr L in formulating his recommendation). However, notwithstanding the criticisms that have levelled against Mr London, regarding his attitude and his actions, this little boy has developed a close and apparently meaningful relationship with his mother. This is contrary to the submissions put in Ms Mallery’s case that to enable the relationship to form and continue that far more significant time is required.
Again, the above is not to suggest that simply because the relationship has occurred with far less time than a parent seeks that no further time should be afforded. However, the focus of the exercise is and must be, consistent with the legislation, upon the relationship [X] enjoys with both (emphasis added) parents.
I am satisfied that I should accept and adopt the submissions put by Counsel for Mr London that I would be cautious in radically interfering in an arrangement that has been in place for a significant period of time and which quite clearly and as conceded by Ms Mallery has resulted in this little boy being well cared for and having formed and maintained meaningful relationships with both parents.
The test for the Court, generally or pursuant to s.65DAA, is not to order equal time unless contraindicated. The test is to structure the best time arrangement that will promote the child’s best interests and by reference to relevant legislative considerations. I am satisfied that the present arrangements, or something approximating them, have and will continue to do so.

Additional Considerations

Views

No evidence is before the Court as to this young child’s views. In any event I would not likely afford any significant weight to any views expressed having regard to his age and maturity. However, as no evidence is present as to a preference or view by this child I need consider it no further.

Nature of the Child’s Relationship with Each of the Child’s Parents and Other Persons

Clearly this child enjoys, and Mr L has observed, a close relationship of relatively equal standing with each of his parents. He has also observed and opined to enjoy a close relationship with his paternal grandmother and aunt. I accept, although the evidence is far from fulsome, that [X] enjoys a good relationship with his elder sibling.
On one somewhat simplistic view one could leave arrangements entirely as they are based on the opinion expressed by Mr L that he did not observe any discernable difference in the child’s relationship with either parent. However, I am satisfied that some variation might and should occur at least for the period until [X] commences school to maximise the time that would be available for [X] to be in his mother’s care and experience her parenting and to spend time with her and his sister.
I am not satisfied that an equal time arrangement would benefit this little boy at this time. I am concerned that the movement between the significantly different parenting styles of these parent’s homes would be problematic for [X]. I am also concerned that it would represent far too significant a change to arrangements which is his settled and familiar and without corresponding benefit or advantage. Again that is not to suggest that there is not a benefit to [X] spending more time with his mother or strengthening his relationship with her. However, that benefit, based on Mr L’s evidence, would appear to be facilitated through the present arrangement and could be facilitated with far less radical change than that proposed by Ms Mallery. I propose to accede to a more cautious and conservative development of time.
As I have indicated I also accept that the Jones & Dunkell inferences that arise with respect to the evidence not called by the mother and the general lack of credit that I have found with her evidence would cause me some concern that to advance to the position that Ms Mallery suggests would represent something in the nature of an “experiment” which the Full Court has consistently cautioned against. When I am faced with settled arrangements which both parents and the report writer agree meet this little boy’s needs well (including not only his physical needs but his need to maintain a meaningful and close relationship with both parents) that I should hasten slowly.

Willingness and Ability for Each Parent to Facilitate and Encourage the Child’s Relationship with the Other

There are certainly criticism that can fairly be levelled by Ms Mallery towards Mr London and particularly relating to the absence of notification regarding significant injuring in January 2012 and more generally. However, to place too much focus upon isolated incidents in this case would obviate against:
a)The level of distrust which exists between both parents and directed by each parent towards the other (and which, in the case of Mr London and in light of the credit issues I have found with respect to Ms Mallery’s evidence, are perhaps explicable);
b)Would ignore the period of time during which such isolated incidents have occurred.
Accordingly I am not satisfied that this factor substantially favours either parent.

Likely Affect of Change Including Separation from Either Parent, any other Child or any other person

The simple reality for this little boy is that he has lived from the age of about 8 months until the present with his father and paternal grandmother. As indicated above and for the sake of repetition both parents agree that this arrangement has met this little boy’s needs well, assisted his development appropriately and enabled him to form the presently observed close relationship with each parent. Accordingly there could not be said to be a great deal going wrong for [X] in his present circumstances.
The clear deficiency for [X] is that the time that he has spent with his mother and his sister is far more limited. However, this has, to some extent, come to be through practical difficulties created by Ms Mallery first in moving to the North Coast and then returning to settle on the Central Coast but with the impediment that she faces in relation to transport and finance. I do not wish such comments to be perceived as a criticism of Ms Mallery choosing to live where she lives or having done so for the reasons she has expressed (being largely financial). Clearly Ms Mallery gets by on a meagre financial stipend derived from Centrelink benefits and the ability to stretch such meagre funds over the period of a few days let alone a fortnight is to be commended. However, the practical reality remains that the history of these parties since their separation in May 2008 is such that:
a)[X] has, at all times, lived primarily with his father and paternal grandmother;
b)Those arrangements have met his needs and served them well;
c)[X] has spent far more limited time with his mother than with his father;
d)[X] has spent limited time with his sister;
e)Notwithstanding these time arrangements [X]’s relationship with each of his parents is fulsome.
I am satisfied that the disruption that would flow to [X] of significantly changing his arrangements and particularly in circumstances where what is proposed on either parents case is that this would be of limited duration, is not outweighed or sufficiently outweighed by the benefits that would potentially flow to [X] of further strengthening his relationship with his mother particularly when this can be achieved through far less radical change to arrangements.

Practical Difficulty and Expense

This is somewhat manifest in light of Ms Mallery’s present travel difficulties and the problems created for her in such travel by her elder child attending school and her consequent responsibilities in that regard.
Ms Mallery has given some evidence that she may, in the foreseeable future, receive some assistance from her mother, however, there is no evidence to corroborate this. I do not go so far as to draw the inference that would and is available that the evidence which might be suggested to corroborate Ms Mallery’s position would, if called, do nothing of the sought. However, there is no timeframe or any reasonable predictability to when such assistance will arrive or the impact it will have. Accordingly, I am left to deal with the present practical difficulty which obviates, in my mind, against equal time or substantial changes to time during the week.
I am also concerned that this little boy is now attending day care/pre school three days a week and whilst this may have served a purpose more specifically related to Mr London’s employment in past times it now serves a practical and useful purpose in assisting and preparing this little boy for school. To disrupt that in light of the significant change that will occur once he commences school would not be desirable.
The proposals put by Ms Mallery would see not only a substantial change for the next 10 months but on an ongoing basis in that [X] would pass to reside in her full time care. That is a change of such nature and substance that I am not satisfied that it is appropriate and having regard to the demonstrated ability of the father and his mother and the household which they comprise to meet this little boy’s needs in a way that is without criticism I am not at all convinced that this step could or properly should be taken at this time.

Capacity of Each parent

I am satisfied that both parents are capable of meeting this little boy’s physical, emotional and intellectual needs.
What I am left with on the evidence, however, is the clear demonstrated capacity to do so on the part of Mr London and his mother whereas the only experience which the Court can turn to regarding Ms Mallery’s full time care of the child, who is now some four years of age, is plagued with difficulties and criticisms which may be entirely explicable on the evidence but as to which Ms Mallery’s evidence is inconsistent, contradictory and unhelpful.

Maturity, Sex, Lifestyle and Background

I do not consider this a significant factor save to the extent that [X] is a child of very tender years. Indeed, by reference to Mr L’s evidence [X] is a child who is in the latter stages of his attachment phase of development and thus the opportunity to increase his time and potentially strengthen his relationship with his mother prior to commencing school should be utilised and taken advantage of. However, his age would also dictate that significant changes unless based upon compelling reasons related to his welfare (whether to protect him from disadvantage or provide him with greater advantage) should not be embarked upon. In this regard I am not satisfied that there would such significant advantage to [X] of significantly changing his arrangements as to warrant the disruption to a clearly well settled arrangement which abundantly meets his needs.

Aboriginal or Torres Strait Islander Children

It is not suggested that either parent or [X] is from an Aboriginal or Torres Strait Islander background.

The Attitude to the Child and the Responsibilities of Parenthood

Each parent is critical of the other but I am not satisfied that this factor is of sufficient assistance in determination of issues before the Court or to the extent that it is, based on my comments regarding the evidence above, that it greatly assists either parent.

Family Violence

The only incident of family violence is that referred to above. I am satisfied that there is no need to otherwise take action pursuant to ss.60CG, 60K or otherwise to address any concern with respect to family violence and, indeed, none is suggested by Ms Mallery.

Any Family Violence Order

There are not and have never been any family violence orders between these parents.

Avoidance of Future Proceedings

These proceedings will be concluded by the orders I make. However, the conclusion of a dispute by hearing does not, of necessity, assist in addressing or ameliorating the conflict which gives rise to the dispute.
It is perhaps with the above in mind that the legislators have included Part II of the Family Law Act1975 which directs the Court towards an assessment of underlining causes of dispute and empowers the Court to direct parents to programs that may be of assistance. I propose to do so and I am satisfied that is the maximum extent which I can address this factor.

The Extent to which a Parent has Failed to Participate or Precluded a Parent’s Participation

Sub-s.60CC(4) allows a consideration of the above factors. Each parent is critical of the other on different levels regarding this. Mr London suggests that significant a number of periods of time were offered to Ms Mallery which she has failed to take up and that other periods have been cut short by her. I am not satisfied that they are matters for which I should be critical of Ms Mallery as they are either historical or, in the large part, cogent explanation provided.
Similarly criticism is raised of Mr London for not providing periods of time or involving Ms Mallery in decision making. I am, similarly, satisfied that I should not take these into account in any significant fashion as cogent explanation was provided.

Conclusion

Having regard to all of the above matters I am satisfied that orders should be made which provide for some increase in time between [X] and his mother until he commences school. I propose to make orders in accordance with that which was suggested by Mr L during his cross examination and so as to slightly increase time for the alternate weekend periods that occur and to make a similar provision in the following weekend. To achieve this and particularly noting

Mr London’s propensity (without criticism of him on any level) to spend time with [X] on the Central Coast on weekends and the logistical difficulties that have arisen for Ms Mallery in the past and with a desire to produce a consistent, predictable arrangement I propose to make orders which will provide for alternate weekend time from Friday to Monday evening and, in the off week (if it might be so described) for time from Sunday evening until Monday evening.
I appreciate that until [X] commences school this will have the potential to interfere to some extent to Mr London having a free and completely uninterrupted weekend [X]. However, as the evidence sits there should be relatively minimal disruption for Mr London in this regard or, more importantly, his best interests being the paramount consideration, for [X].
I otherwise propose to make orders as proposed by Mr London for equal sharing of school holiday time although to make periods shorter during the forthcoming Christmas school holidays. As otherwise identified and to address issues raised in evidence I propose to make a number of specific issues orders.
Accordingly I make orders as follows.

I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 29 February 2012