MANN-PETERS & MANN

FAMILY COURT OF AUSTRALIA

MANN-PETERS & MANN

[2012] FamCA 127

FAMILY LAW - CHILDREN – application by father for equal time with child – communication difficulties between the parties – lack of co-operation between the parties – child to spend significant and substantial time with his father but not equal time

Family Law Act 1975 (Cth) ss 60B(1), 60CC, 61DA, 65DAA(1) and (2)

APPLICANT:

Mr Mann-Peters

RESPONDENT:

Ms Mann

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

HBC

1500

2007

DATE DELIVERED:

16 March 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

6 & 7 December 2011 &

2012, 14 & 15 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Marcus Turnbull

SOLICITOR FOR THE APPLICANT:

Ogilvie Jennings

COUNSEL FOR THE RESPONDENT:

Tony Fitzgerald

SOLICITOR FOR THE RESPONDENT:

Fitzgerald & Browne

COUNSEL FOR INDEPENDENT

CHILDREN’S LAWYER

Patrick Fitzgerald

SOLICITOR FOR INDEPENDENT

CHILDREN’S LAYWER

Legal Aid Commission

Orders

All previous parenting orders be discharged in relation to H born November 2006 (“the child”).
Mr Mann-Peters (“the father”) and Ms Mann (“the mother”) have equal shared parental responsibility for the child and the parents shall genuinely consult with the other parent prior to making any determination with regard to any of the child’s major long term issues and no such decision shall be made without both parents’ agreement.
The child live with the mother at all times except as is otherwise provided in these orders or otherwise agreed in writing between the parties.
The child live with the father during school term on a fornightly basis from after school Wednesday to the commencment of school Monday. Such times to fit into the weekends when a child, P, is living with the father.
BY CONSENT the child will live with the father on special days and holidays as follows:-
(a)each year on the father’s birthday on … December from after school on that day or 4.00pm if a non-school day, to the commencement of school the following day or 11.30am if a non-school day;
(b)in any year if the father’s daughter, P, is in his care, the child will be collected by the father at the usual times agreed or failing agreement at the completion of school on … March or 4.00pm if a non-school day to the commencement of school the next day, or 11.30am if a non-school day;
(c)on Father’s Day if not otherwise in the father’s care from 4.00pm on the Saturday before until 4.00pm Sunday;
(d)On the child’s birthday:-
(i)in 2012 and each alternate year if not otherwise in the father’s care, on the child’s birthday … November, from after school that day or 4.00 pm if a non-school day to the commencement of school on the following day and if a non-school day then to 11:30am;
(ii)in 2013 and each alternate year if not otherwise in the father’s care from after school or 4.00 pm if a non-school day on … November to the commencement of school on the following day and if a non-school day then to 11:30am.
(iii)Provided that the child shall spend time with his mother on his birthday as follows:
(1) in 2012 and each alternate year if not otherwise in the mothers care from after school or 4:00pm if a non-school day on … November to the commencement of school on the following day and if a non-school day then to 11:30am.
(2) in 2013 and each alternate year if not otherwise in the mothers care on the child’s birthday … November from after school that day or 4:00pm if a non-school day to the commencement of school on the following day and if a non-school day then to 11:30am.
(e)such further or alternate time as may be agreed from time to time between the parties.
BY CONSENT the child be returned to his mother on the following special occasions when otherwise not in her care:-
(a)each year on the mother’s birthday on … March from after school on that day or 4.00pm if a non-school day to the commencement of school the following day or 11.30am if a non-school day;
(b)each year on … August from after school or 4.00pm if a non-school day to the commencement of school the next day, or 11.30am if a non-school day or for the purpose of celebrating his brother’s birthday;
(c)on Mother’s Day from 4.00pm on the Saturday before until 4.00pm Sunday.
BY CONSENT the child will spend time, for seven days of term school holidays with the father during all school holidays periods (excluding Christmas and New Year) commencing at 4:00pm on the Sunday prior to the time that the child would have commenced spending with the father, if the term had continued and concluding at 4:00pm Sunday.

BY CONSENT during Easter public holidays provided the Easter break is not a school holiday to which the above order applies.
(a)from 4:00 pm Easter Tuesday 2013 to 4:00 pm the following Sunday, and each alternate year thereafter;
(b)Easter time 2012 and each alternate year from Easter Thursday at 4:00pm to Easter Tuesday at 4:00pm.
BY CONSENT over the Christmas/New year holiday periods the child live with the father:-
(a)in 2012 and each alternate year afterwards a period of seven days commencing 12 noon 17 December and concluding 12 noon 24 December;
(b)in 2013 and each alternate year afterwards; a period of seven days commencing 12 noon 24 December and concluding 12 noon 31 December;
(c)provided that the child will spend the seven days with the mother from 12 noon 17 December until 9:00am 24 December in 2013 and each alternate year thereafter and 12 noon 24 December to 9:00am 31 December in 2012 and each alternate year thereafter.
(d)the child shall spend alternate weeks during the Summer school holidays commencing 12 noon on 31 December 2012 and each alternate year afterwards and commencing 6 January 2014 and each alternate year afterwards.
(e)notwithstanding the above orders, the child is to be returned to the mother’s care seven (7) nights before the commencement of the first school term in each year.
(f)the time the child commences alternate weeks during school term with the father shall commence in the week that his daughter, P, is in his care.
BY CONSENT changeovers are to occur as follows:-
(a)if the child is attending school on a changeover day, changeover will occur at the school or at after school care;
(b)changeover between Christmas Eve and 31 December will occur at Town S Park, and each parent shall be entitled to bring another adult with them;
(c)school holiday changeovers, other than Christmas time provided for above, will occur at Contact Centre 1 unless the service is closed, and if so, at any venue agreed between the parties and if no agreement at Hobart Public Building car park.
BY CONSENT the mother and father will follow all directions to facilitate the child’s attendance for appointments at medical and paramedical professionals.
BY CONSENT the mother and father shall authorise and ensure all records involving the major long term issues will note the other parent as ‘parent/guardian’ and/or ‘next of kin’ and/or ‘first contact’ whichever is applicable.
BY CONSENT the mother and father are restrained from allowing the child to be treated or seen by any health professional other than a medical practitioner at and/or recommended by a medical practitioner from the S Health Clinic without the consent of the other parent obtained first in writing (except in the event of a medical emergency, in the event of a medical emergency the party caring for the child will immediately notify the other party of the fact of the emergency and provide full details relating to such emergency).
BY CONSENT each party will keep the other advised of all and any medical, dental and health related appointments that the child has or will attend whilst in their care.
BY CONSENT the mother and father will keep each other advised of all or any medication prescribed to the child by a medical professional and will provide the other party with any medication and a copy of the prescription that is prescribed for the child in their possession that is required to be provided to the child during that parties time and shall provide the other, in a timely manner, of copies of all medical letters and/or reports concerning the child.
Each parent shall (at that parent’s expense) encourage and permit the child to have regular telephone and other electronic communication with the other parent and siblings at times the child is not living with such parent and siblings.
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.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004, it was reasonable to engage counsel.

IT IS NOTED that publication of this judgment under the pseudonym Mann-Peters & Mann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Mr Mann-Peters

Applicant

And

Ms Mann

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings concern the parenting arrangements for H (“the child”) who was born in November 2006, and was aged five at the date of hearing.
The child has been the subject of family litigation for almost all of his life. There were proceedings before the Court which were resolved (in part) by consent orders made on 13 July 2010. The orders were expressed to be interim orders until 25 December 2011 and then to become final orders unless an application was made. An application was made.

THE ISSUES

The issues between the parties had narrowed substantially by the time this matter came to hearing in December 2011. The issues regarding special days and school holidays have been resolved and consent orders have been made. The primary issues left to be determined by the Court are the parenting arrangements during school terms and the question of parental responsibility.
Both parents seek equal shared parental responsibility of the child. The Independent Children’s Lawyer initially had a different view but in final submissions he supported the consent orders proposed by the parents. I likewise had concerns that the parents have, at times, shown poor joint decision making abilities but having regard to the submissions of the parties I am satisfied the order should be made. I have varied the draft order to a simpler form, and if the parties are unable to agree they must first (generally) try alternate dispute resolution before applying to a Court. That process does not need to be spelt out in the orders.
The other issue, on the surface, does not seem complex but in the circumstances of these parties and their child it is difficult. The interim orders made in July 2010 provided that the child spend increasing time with his father until commencement of school in 2011 at which time the child would spend six days with his father and eight days with his mother.
The mother claims that this arrangement was not working for the child and that the child should live primarily with her during school term and spend (in a two week cycle) a Wednesday night in week one with the father from after school Wednesday to the commencement of school Thursday and in week two from after school Friday to the commencement of school Monday unless Monday is a public holiday then 4.00pm on Monday.
The father sought a set of cascading orders starting with an order that the child live with him during school terms for seven days and spend the same time with his mother. Alternatively, the father sought orders that the child live with him and spend less time with the mother building up to equal time.
The Independent Children’s Lawyer submitted that the child should live with the mother primarily during school term and spend five nights with the father being Thursday to Monday in one week and overnight in the alternate week.
The Independent Children’s Lawyer also submitted there should be orders for telephone contact between the child and the parents.
The father is aged 38 and until recently he worked full time during the week in a science field. He was generally expected to be available from 7.30am to 5.00pm however this day can sometimes be as short as 9.00am until 3.00pm. Shortly before the February hearing the father’s employment was terminated and he was proposing to challenge that decision. He has other options for employment in Hobart.
The father has a daughter from a previous relationship, P, who is aged ten. She lives half the time with her mother and half the time with her father. P commenced this equal time arrangement when she was aged about eight and a half.
The mother is aged 33 and has two boys from an earlier relationship T and Y who are aged 11.
The mother works in a healthcare field during school hours. This is about one day a week when she has the child in her care and about four days per week in the alternate week she is not caring for him.
The parties commenced their relationship in about March 2005 and it appears that the parties separated in the second half of 2007. There were issues about parenting time after that time (at this stage the child was aged about twelve months). The parties endeavoured mediation and in December 2007 the father commenced proceedings seeking orders, including an order that the child spend equal time with him.
Interim orders were made in March 2008 and the matter was listed for hearing before a judge of this Court in May 2008. The hearing did not proceed and the matter was referred to assessment by single experts and interim orders were made in June 2008.
In January 2009 a report was prepared by a family consultant, Ms D, and the mother subsequently filed, in February 2009, an application seeking that the orders made on 20 June 2008 be suspended in part.
Interim orders were made in November 2009 and the matter was heard by me in July 2010. Prior to finalisation of that trial the parties entered into interim consent arrangements.
In February 2011 the mother relisted the proceedings to alter the interim arrangements.
As the issues between the parties had narrowed substantially and many of the issues raised in the trial in 2010 were not relevant in terms of the definition of times between equal time as one option and significant and substantial time with one or other parent as the other option, it was the events following July 2010 which were the subject of these proceedings.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary intention is shown.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

The provisions in the Family Law Act 1975 (Cth) (“the Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. The objects and principles are contained in s 60B of the Act.
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

The father

The father gave evidence in accordance with his affidavit filed 5 December 2011. Such parts of that affidavit which related to the events prior to July 2010 were not read.[1] He also gave evidence at the commencement of the February 2012 hearing dates.
[1] At paragraphs 34 to 42 of the father’s affidavit filed 5 December 2011.
The father was not an impressive witness. His approach to problem solving at times seemed that he determines which result he wants then formulates arguments to support that view.
The father lacks insight and is inflexible. At about the time of the end of his relationship with the mother, the father was diagnosed with Asperger’s Syndrome and the father accepts that diagnosis.[2] Dr A expressed a view that symptoms of this syndrome, if they exist, would not impact upon his capacity to parent. Dr A did not have the opportunity to observe the types of email exchanges between the parties or the father’s inflexible approaches as observed by me in hearing his evidence. I am unable to determine whether the father’s lack of insight and inflexibility are as a result of the syndrome or otherwise, in the end it makes little difference.
[2] Exhibit ICL 9, report of Dr A 22 December 2009 page 14.
There are a number of examples of the father’s lack of insight and inflexibility shown in this regard during his cross-examination. I have detailed some in this part of the reasons but have considered these in the context of my consideration of the relevant factors under s 60CC of the Act.
One was with respect to the interim order of July 2010 which provided, during school term, that the child spend six days with him ending on a Monday afternoon at 4.00pm. The mother asserted that this ought to have been 9.00am but it was overlooked in the pressure of the settlement negotiations. Irrespective of how this arose it meant that the child would spend Mondays in child care when the mother was willing and able to care for this young child.
The mother negotiated with the father in 2010 for the child to be returned to her on Monday mornings. When the mother sought an extension of that arrangement the father’s reply was:-[3]
I think I have answered this email about three times now, you may have to check your spam box? I will text you letting you know when there is an email there for you.
I have been allowing you to see more of [the child] that is in the court orders for this year, but with the new year it is time to revert to the court orders as I feel the use of the child care has benefits to [the child] in preparing for school and socialisation.
So as of January [2011] the changeovers revert back to the court orders of 4.00pm or after school.
[3] Annexure H to mother’s affidavit filed 5 December 2011– email 6 December 2011.
The mother was available at home to care for the child in 2011. The child was otherwise attending school two or three days a week. The father tried to justify why it was important for the child to attend child care. He endeavoured to explain the difference between child care and the child at school and asserted that it was better (in some respects) than the child seeing the mother. I am troubled by his evidence in that regard as it had a sense of artifice about it. The reasons expressed by the father for the child to attend school are other than an excuse to ensure that the child spends time with him (albeit not in his care) and being a move towards the father’s desire to have equal time.

At one stage he said, in evidence, that it was important for the child to spend as much time with the parents as possible. When I pointed out the incongruity of that with regard to his approach on Mondays he then endeavoured (unsuccessfully) to persuade me as to why this incongruous approach was in the child’s best interest.
The father complained to the family consultant about ongoing communication difficulties with regard to the treatment of the child’s skin at the top of one ear.[4] On the father’s evidence the mother communicated well but was troubled by some of the medicines and the outcome of the treatment. The mother kept the father informed of what she was doing and her concerns. The father decided to take the child for a second medical opinion and contrary to the views of the mother, did so. He subsequently informed the mother that he had done so. Yet the father said that this was poor communication on the part of the mother, not himself. This showed some lack of insight.
[4] At paragraph 18 of Family Report dated the 31 August 2011.
The father complained about the communication between the parties, and in particular highlighted some emails from the mother in early 2011. Yet when the mother tried to solve this problem by using a third party the father threatened the third party with litigation or court involvement. He emailed the third party saying:-[5]
I thought I would just point out if you could please be a little careful about ‘over filtering’ information you pass on to [the mother], in the past there has been problems with [the mother] claiming I have not informed her of things, and I would not like you to be in the position of defending in court that you chose not to pass on important information [emphasis added].
[5] Annexure H to father’s affidavit filed the 5 December 2011.
The father did not initially acknowledge that was a threat but when pressed in cross-examination, reluctantly acknowledged it may be seen as such. It was clearly a threat and undermined an endeavour by the mother to manage communication.
The father says that he is the better carer for the child and in communication and affidavit material expresses and implies that view. He is somewhat patronising of the mother and her parenting.
The mother had tried to organise telephone contact with the child and the father has, at times, adopted an inflexible approach.
After the hearing in December 2011 the father became a little less rigid in his approach, I am satisfied that was as a result of concerns raised by me when he gave evidence in December 2011. I am concerned that this new found flexibility may evaporate when the court proceedings are over.
The father believes that equal time means equal parenting and vice versa. He is fixed in that view. As early as the child’s first birthday equal time was what the father sought. He has been persistent and pedantic in terms of that approach.
The evidence of the father was that if the child said he wanted less time than six nights, the father did not accept that this would be in the child’s best interests.
The father was aware of the recommendations by the family consultant for reduced time and the impact of the time on the child but took no steps prior to the orders made by me in December 2011 to implement that approach, despite the recommendations contained in the Family Report.
The father understates the conflict that exists between he and the mother. If there is conflict he blames the mother and takes little or no responsibility himself.
Another example of the father’s inflexible approach relates to the arrangements on 24 December 2010. The child was to be with the mother from 4.00pm that afternoon. The father was working that day and the mother asked if the child could come to her early.
The father did not effectively respond to the mother’s emails. The mother said that on 6 December 2010 the father had arranged via email that the child would go to her on Christmas Eve at 4.00pm (spending the day in child care) and where the father may not finish work that day until the afternoon.
The mother responded suggesting that instead of the child spending the day in child care, why not allow him to spend time with her and her family for Christmas. The mother did not receive a response to that email of 9 December 2011 and followed this up by email on 17 December. She did not receive a response and on 20 December she sent another email.
On 21 December the father responded to the mother’s emails saying:-[6]
Merry Xmas. I think it is really nice that you want to spend time with [the child] as soon as you can.
I will endeavour to get [the child] to [Town S] for you as soon as I can. I may be a little late as you insist on changing over so far away from where we live.
I will text you when i have collect [sic] [the child] and on my way. which should be about 3:45pm. So far I am looking at the [client] numbers. Which should be relief to you rather than being 5:30pm.
[6] Annexure L – email 21 December 2010 - of the mother’s affidavit filed 5 December 2011.
The mother responded asking the father to let her know whether she could pick up the child on the morning of Christmas Eve. The father responded as follows:-[7]
[7] Ibid - email 22 December 2010. [All quotations are made without alterations or corrections to errors contained in the original text].
I tried very hard to make a very simple reply to you and regrettably you are still confused.
hopefully this my final email and attempt will help [sic] understand.
when you asked to collect [the child] in the morning you used the term morning and gave a time.
most people take morning to mean any time before 12pm and if you give a time they think you want to collect [the child] at the time in the morning.
I replied with a time and place PM at the end. this PM usually means to most people any time after 12 but at the time denoted.
So I thought you like other people would know that if i am getting [the child] to [Town S] pm this meant not am.
I hope by explaining these terms to you, you will better understand for the future.
As I said though it is nice that [the child’s mum] wants to see him earlier this is a lovely trait in a mother please have a nice Xmas.
He placed the child in child care in his hope that he would finish work early that day. He did do so and spent some short time with the child.
The father gave evidence at one stage that he collected the child at 1.30pm and in later evidence he said it was an earlier time. In any event it was a work day. In a child focused way the communication between the parties in relation to this event was poor and particularly on the part of the father.
I am not convinced that the father was concerned about the welfare of the child in this respect, nor am I convinced the father was concerned about spending an hour or two more with the child irrespective of the impact on the child in spending Christmas Eve in child care. It was about time and aiming towards that equal time.
It was indicative of the difficulties the mother has in negotiating with the father, the father’s superior and demeaning type of communications and the father putting his interests ahead of that of the child. This episode is of little credit to the father.
The child spent much of that day in child care instead of spending time with his mother and brothers. The father’s approach was more about his needs and wants than those of the child.
The mother said in her affidavit that:-[8]
He [the father] feels superior to me, he mentions being busier than me saying things like ‘I have tried very hard to make a very simple reply to you and regrettably you are still confused.
[8] Ibid at paragraph 234.
This comes across clearly in the emails passing between the parties. The father has little insight into the impact of this kind of language on the mother. The father lack of insight and his approach is at times troubling.
The mother says that these communications are difficult for her and shows that the father expresses superiority and that emails are difficult, stressful and unproductive. Having regard to this series of emails it is clear that those concerns are well founded. Although it must be said that at least in early 2011 the mother’s responses were inflammatory.
In terms of the sequence of events in terms of that Christmas visit, I prefer the evidence of the mother to the father.
The mother claims that the child wanted to speak to her by telephone when he was at his father’s home. I accept her evidence in that regard. This particularly became the case after the arrangements changed at the beginning of 2011. The father would not allow the child to use his mobile phone when he was with him or call anyone or allow him to answer calls except in terms arranged by the father.
The mother sets out a history in paragraphs 261 to 276 of her affidavit filed 5 December 2011.
The father’s initial response in cross-examination on the telephone calls was indicative of controlling behaviour. The father lacked insight into the need of the child to have reasonable telephone contact with the mother particularly bearing in mind that the mother had been or was his primary carer and the child wished to speak with the mother.
The father claims that the child had been on the telephone distressed and that the child’s distress was caused by the mother. I do not accept that conclusion. The father’s approach is an example of the father’s lack of insight.
The father gave evidence that the child has never intimated that he wants to go back to his mother although this was, at some levels, at odds with the telephone call to which the father referred to between the child and the mother when the child was upset. I am concerned that the father may not be responsive to the child’s requests in that regard.
I intend to make an order to enable the child to contact the other parent by mobile telephone (at that parent’s expense) when the child is absent from the other parent. The child is entitled to privacy when making such calls.
The father claims in his affidavit that the mother has an unhealthy attitude to him. I accept that the parties do not communicate well and have limited regard for each other.
The father complains that the mother is at times provocative and insensitive. In earlier times, as identified by Dr A that assertion may have had some substance
However, in recent times it seems to be more in form than substance. An example can be seen in the father’s response to the mother’s request to go overseas, which is set out later in these reasons.
The father complained to the family consultant about ‘a recent example of ongoing communication difficulties with [the mother]’ in relation to the treatment of [the child’s] cracked skin at the top of his ear. The father reported to the family consultant that:-[9]
… [the mother] had disagreed with the choice of remedy and hence [the father] had got a second medical opinion. He stated that [the mother] said she had not informed him about the treatment when he had done so, and she said that [the child] was not getting better when he was.
[9] At paragraph 18 of the Family Report dated the 31 August 2011.
When cross-examined by the Independent Children’s Lawyer it was clear that the mother had noticed a problem, informed the father and obtained treatment. She had informed the father of the treatment, her concerns as to the nature of the treatment and the lack of results. The father said a second opinion was necessary and despite the mother’s objection to that went ahead and informed her in any event. The father acted in a unilateral way in circumstances where the mother was endeavouring to communicate well.
At the commencement of the hearing on 14 February 2012 counsel for the father sought leave to adduce some oral evidence in respect of the father’s employment. As I indicated earlier the father said that he had recently lost his job although he was endeavouring to have the job restored by way of negotiation on application to Fair Work Australia. He is also in the process of considering retraining in a business field.
The father gave evidence that he had difficulties with the child changing from School 1 to School 2. The mother and father agreed that the child should go to School 2 in 2012 if a position was found available. The mother had been sent a letter informing her that the child had a place (the mother had agreed to pay for the child’s education and schooling). She had assumed the father had received a similar letter as he was included on the list of people to be notified.
The father’s evidence needs to be carefully assessed having regard to the concerns I have outlined.

Dr A

Dr A is the psychologist who prepared a report for these proceedings in January 2010. That report was read into evidence and Dr A was not required for cross-examination. Dr A’s qualifications were not in issue.
The report was dated 22 December 2009 and I take it that the interviews took place some time before that date. The child would have been about three years of age.
Dr A opined that the mother’s children, T and Y said that the child’s behaviour was poor for about 3 days after returning from their father’s home. In the context of this evidence she had formed the view that this evidence was provided by the boys at the request of the mother. I have had regard to the statements by the boys and the implicit criticism of the mother in this determination.
Dr A was critical of the mother and her assessment of her differed from my observations of the mother during the course of the trial. The mother had read Dr A’s report and had sought treatment and advice in relation to criticisms made of her.
My assessment of the mother was somewhat different to that of Dr A, however, I note that Dr A assessed the mother in late 2009, some years ago and events and the parties have moved on since that time.

Ms L

The father relied on an affidavit of Ms L, a flat mate in his home, which was filed on the 25 June 2010. The affidavit is of a ‘cheer squad’ or ‘referee’ quality. I have given it some but not significant weight.
Ms L was not required for cross-examination.

Ms J

Ms J swore an affidavit filed 30 June 2010 and that affidavit was read into evidence. Ms J is the former wife of the father and sets out some history in relation to the care of Mr J’s other child, P (now aged 10).
I have had regard to the material contained in that affidavit although it also falls into a ‘referee’ type affidavit.

The mother

The mother relied upon her affidavit filed 5 December 2011 and provided evidence in relation to the change of arrangements in late January/early February with regard to the child’s time with the father and also in relation to the mis-communication over the child’s enrolment at School 2. There is an objection to part of the material contained in the mother’s affidavit and annexures B & D were not read.
The mother was cross-examined in relation to the need for the reduction in time from six days to four days. She said that the six days was not working in terms of the child exhibiting episodes of violence, withdrawal, regression, anxiety and sleeping badly.
It is her view (notwithstanding the view of some of the experts) that six days is too much and four days would be better. Initially she thought three days would be the appropriate period over a fortnight of the school week however after reading the material of the family consultant reviewed that to four days. The mother asserted that there should only be one period of time per fortnight rather than two time periods as the latter approach is less stressful for the child.
I generally accept her evidence in that regard.
The mother has endeavoured to engage with the father but finds it difficult to do so. An example was the issue of the child attending School 2. The parties had agreed to the child attending School 2, and the mother had agreed to pay all school fees. The parties enrolled the child and were awaiting confirmation. In about October 2011 the mother received a letter from the school confirming a 2012 start. The mother assumed (incorrectly) that a letter had been sent to the father. On 11 December 2011 the father sent an email to the mother about school term 2012, and mentioned the child’s former school. The father found out some days later by reference to the child’s school report, that the child was enrolled in School 2 in 2012.
On 11 January 2012 the mother emailed the father saying “In your last email you referred to the [child] going to [School 1] this year not [School 2]. Was this a mistake? Please clarify.’[10]
[10] Exhibit M2.
The father’s reply was sent on 22 January 2012 and he said:-[11]
no [sic] this was not a mistake.
I am aware [the mother] has court orders that she is to inform me of such actions prior to taking the step proceeding any action on her behalf. In this case [the mother] has not notified me of any changes to [the child’s] school.
Since this email I have found out that [the mother] has cancelled [the child’s] enrolment for this year in [School 1] and moved our son over to [School 2].
[11] Ibid.
On 24 January 2012 the mother replied that the change of schooling was agreed in court orders and asked if ‘you have now changed your mind?’
There was no reply, and the mother was left up in the air. On 10 February 2012 the mother sent another email noting that the father had not replied and had signed some papers.
The email exchange was slow and provided the mother with no clear answer. It is clear why the mother becomes frustrated with email communication from time to time.
Another series of emails was tendered by the father.[12] The emails, particularly the email by the mother to the father of 19 January 2011 which, when seen in isolation, is somewhat inflammatory. However, when considering the email in the light of the type of emails contained in the Exhibit and the respective parties’ affidavits, both parties need to take responsibly for the poor communication and I note that the mother subsequently put in place a circuit breaker in terms of the third party.
[12] Exhibit F8.
The mother had been endeavouring to engage the father in difficulties in parenting. The father’s response was to suggest the child live with him for more time.
That response was unhelpful, patronising and inflammatory. Whilst the mother’s response was similarly inflammatory it still had an underlying approach to meet the needs of the child.
The mother was cross-examined about the term ‘hit by a bus’ on page 8 of Dr A’s report. The mother’s explanation of this was that she was looking for solutions in the difficult circumstances of which she had found herself. She had passed comment in an inappropriately manner but she said she and Dr A settled down and had a discussion about the underlying problems.
The mother clearly does not like the father but I am satisfied that she does not overtly speak badly about him to the child. It is likely the child picks up the mother’s negativity in respect of the father.
The family consultant observes, at paragraphs 53 and 54 of her report, in relation to the mother and also that the mother, at paragraph 54 of her report, is reluctant to include the father in the child’s life.
That has been the case in the past, however, the mother endeavoured a program of six days per week in 2010. That program has not worked, from the mother’s perception. She then endeavoured to change that arrangement to meet the needs of the child. The mother was clearly not happy with the arrangement and claims that it is difficult for her to negotiate with the father, which is a fair comment.
The mother was cross-examined as to whether the problems could be in her household. The mother said she was endeavouring to find out the reasons why but it was when the child returns and is distressed and upset that there are problems.
The mother had cognitive therapy treatment. It ceased upon the recommendation of her psychologist. The mother had some difficulties later in the year and went back to see her psychologist. I am satisfied, having regard to the evidence of the psychologist, the mother has made improvements although cognitive behaviour therapy does not always overcome a person’s nature.

The criticisms made by Dr Z,[13] Dr A and in a less forceful way by the family consultant have been, less than in part, addressed by the mother.
[13] Exhibit ICL 1.
The father cares for the child and is generally a good father however he is pedantic and inflexible. The mother on the other hand is sometimes guilty of hyperboles.
The mother’s previous hearing was settled on the basis that the mother had ‘run out of steam’.
The mother endeavoured to be frank in giving evidence and made admissions against her interest. From her subjective point of view her evidence is generally reliable.

Ms BB

An affidavit of Ms BB filed 5 December 2011 was read into evidence without cross-examination. It shows and I accept that the father undertook cognitive therapy and is continuing to undertake that therapy. I have had regard to that evidence.

Ms MM

Ms MM, the mother’s mother, provided evidence in accordance with her affidavit filed 5 December 2011.
She is clearly aligned to the mother but was otherwise frank. I am satisfied her evidence was reliable but is subjective. I accept her evidence that the child shows some signs of distress when returned from the father, these signs may well arise from the father’s home or the mother’s reaction. Irrespective, I am satisfied that there were signs of distress.

Family consultant

The family consultant, Ms D, gave evidence in accordance with her report dated 31 August 2011. There was no serious challenge to her qualifications. Ms D is a Senior Family Consultant whose curriculum vitae was attached to her report.
Her evidence was that she was concerned that her reduction of time to four days per week as submitted by the mother may be too much for the child. She had concerns about the impact on the child, bearing in mind the good relationship that had developed over recent years. She made the following recommendations in her report:-[14]
57.It is recommended that the parents share parental responsibility equally and that the same or similar orders as made in July 2010 be put in place regarding assessment of any child health issues.
58.It is recommended that the court consider [the child] living with his father five days per fortnight and with his mother nine days per fortnight being a four night block from Thursday to Monday one week and an overnight the alternate week (or if the parents consider that the benefits of less frequent changeovers outweigh the longer time away from his mother, in a five night block) until he is 6 years of age. It is recommended that [the child’s] time with his father increase to six days per fortnight from 6 years of age until he is 8 and a half years of age and that the time spent with each parent is then on a week about basis.
59.It is recommended that school holidays be shared equally, unless otherwise agreed due to the mother’s possible greater availability
60.It is recommended that the court make orders for telephone contact between [the child] and the parent whose care he is not in at the time.
[14] Dated 31 August 2011.
The recommendations contained in paragraphs 57, 59 and 60 have been accepted by the parties.
I accept her evidence, but I am concerned about a stage increase in time to equal time.

Section 60CC Factors

I am required to consider the factors under s 60CC in determining the various parenting issues. In considering each of the relevant factors, I have had regard to all of the relevant evidence provided during the hearing and findings made by me.

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;

There is no issue in these proceedings that there is a significant benefit to the child of having a meaningful relationship with each of his parents. It is whether this is achieved and maintained by equal time or various iterations of significant and substantial time.

Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Neither party asserts that the child is at risk of being abused, neglected or subjected to family violence. There is no issue that each of the parents can provide the physical needs of the child.
There was a dispute in the past with the mother’s concerns about the medical needs of the child and the father’s concerns of the mother’s approach to medical treatment of the child. These are no longer in issue.
There was an issue about the father’s intimate behaviour during the parties’ relationship and this was not an issue or argued in this hearing. The only aspect in relation to the child’s psychological care, at this stage, is the determination by the father that time should be equal time and the mother’s concern that the time the child spends with the father is too much, combined with the ongoing subtle conflict that exists between the parties.

Section 60CC(3)(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;

The family consultant reported that the child said to her that school ‘takes a long time to finish’ and he does not like it so much.
The family consultant observed in her recent report:-[15]
42.Of his father’s place [the child] stated “I actually don’t like going to Dad’s place sometimes cos I’m worrying how many sleeps I’m having”. [The child] could hold up six fingers and knew he spend [sic] 8 nights at his mother’s home.
43.[The child] was asked whether either of his parents had said why he was coming or whether they had told him to say anything. He did not respond clearly. He was asked what his Mum wanted and he responded “To be at Mum’s”. He was asked whether his mother wanted him to be at Dad’s to which [the child] responded “No” when asked “Why not?” [the child] said “Why not is cos I’m scared … cos sleeps are too long”. Then he said in a pleased tone of voice “Lucky thing about today is that I got to spend a little time with Daddy” (not a day he would normally see his father). [The child] was asked about kindergarten and he said that he does not like it so much because “it takes a long time to finish”.
[15] Ibid.
Counsel for the father submitted that this was not the real view of the child but one that the mother had encouraged him to make. There was some evidence in the Family Report that the mother had asked him to say certain things to the family consultant.
I accept the evidence of the mother and her mother as to the child being unsettled upon her return from time with the father.
I am satisfied that the child is objecting to spending so many nights at the father’s home and that he found part time school in 2011 tiring. It is likely therefore that he will find his first year of full time school equally tiring.

Section 60CC(3)(b) The nature of the relationship of the child with:

(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

It is clear that the child has a close loving relationship with both of his parents and his brothers (in his mother’s home) and his sister (in his father’s home).
It is equally unlikely that the conflict between the parties will ameliorate. I note and accept these comments made by the family consultant:-
49. It is highly likely that communication problems will continue between the parents regardless of attempts by either or both of them to overcome them. They have received expert help with limited if any success and are back to communicating via solicitors. The problems that underpin their difficulties remain – they disagree on fundamentals regarding [the child’s] health care issues, [the mother] is reluctant to share parenting with [the father], and it may be that [the father’s] communication style and his tendency to be persistent and pedantic exacerbate the problem. It is also possible that [the mother] fundamentally does not want to communicate with [the father] because she wishes to exclude him. Her view of him regarding his worth as a parent may well be influenced by the nature of the problems she alleges in their intimate relationship. It can only be hoped that final orders may enable the parents to move on and improve their communication for [the child’s] sake.

Section 60CC(3)(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;

Each party expresses the view that they do encourage the child’s relationship with the other parent. The father is somewhat dogmatic, determined and that impacts on his communication with the mother.
The father says that he will enable the child to telephone the mother at any time although the mother’s evidence is that when she rings at times other than those provided for in any orders or in any written agreement, that the calls are not welcome. I accept the mother’s evidence in that regard.
The father, perhaps explicitly and perhaps unconsciously, has adopted an inflexible approach with regard to time, such as keeping the child until 4.00pm on Monday afternoons in 2011 and the arrangements for Christmas in 2010 are indicative of this. In this regard he has not shown willingness to encourage relationship between the child and the mother.
I am not satisfied that the mother explicitly opposes the relationship with the father however, I am satisfied that, to some degree, her implicit difficulties with the father is something of which the child is aware.
Each parent is suspicious of the other. There is some indication that the mother has, in the past, shown reluctance in the child spending time with the father.
However, I am satisfied that both parties will continue to enable the relationship without having a particular affection or regard for each other. It will, in the submission of the Independent Children’s Lawyer, be parallel parenting that is likely to work.

Section 60CC(3)(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;

Section 60CC(3)(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;

As to ss 60CC(3)(d) & (e) these are not relevant considerations. Much was made about the father’s loss of employment. Whilst the father did lose his employment the day before the hearing, I am satisfied, given his past approach, that he will maintain a close continuing relationship with the child and facilitate the child having a close and continuing relationship with his sister.
The times as a consequence of my orders are not such as to have any effect on the child and there is little, if any, adverse impact in terms of the practical difficulty and expense of a child spending time with and communicating with each of his parents or the expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

Section 60CC(3)(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;

Each of the parents is able to meet the needs of the child including his emotional needs. The mother has been the primary carer and, in the last three of four years, the father has been significantly involved with the child’s upbringing.
The consequence is a child who is managing reasonably well (having regard to his end of year school report and the views of the family consultant}.
I am satisfied that from time to time both parents have been intransigent and have not promoted a meaningful relationship between the child and the other parent. This reflects adversely on each parent as is the ongoing litigation that is before this Court.

Section 60CC(3)(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;

Section 60CC(3)(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;

Sections 60CC3(g) & (h) appear not to be relevant considerations.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

This is a significant consideration as the conflict that exists between the parties has been constant and ongoing for many years. The mother still remains concerned about events that occurred during the marriage, although she does accept that the father spend significant and substantial time with the child (provided it is four days a week and no more). The father seeks orders that the child spend half the time with the mother.
I have reflected on the parties’ attitude towards each other elsewhere throughout these reasons.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

The mother asserts the father has perpetrated violence upon her and that violence being coersive and controlling. The mother asserts that there is a risk of the child being exposed to abuse or family violence.
Having regard to the evidence of the family consultant, Dr A, the father, his former partner, his flat mate and his psychologist I am not satisfied that there is a risk of violence to the child in the father’s care.
At some levels the mother concedes this as at this time.

Section 60CC(3)(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;

In relation to family violence, the mother raised issues at the time of separation and into the years that followed. She does not pursue those issues in her case at present.

Section 60CC(3)(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;

This is a difficult factor in relation to these proceedings. The parties have been involved in litigation for about four and a half years. This litigation developed out of a perception and perhaps the reality of the failure of the arrangements that were put in place in July 2010. In retrospect the development of the time the child spent with the father was too quick, as observed by the family consultant.
The mother’s strong view is that the child should live with her for most of the time and that her home should be the child’s primary residence. The father continues with his view that the child should live one half of the time with him.
It is unlikely that these underlying views of the parties will change into the future. It was argued by the father that the mother would pursue endeavouring to reduce time.
That may well be the case given the history. It is equally clear that if the father does not achieve equal time at this stage he is likely to pursue that into the future.
It is unfortunate that these parties are unable to resolve this conflict other than by determination.
It was argued that following the recommendation of the family consultant for a reduction of time followed by an increase over a period of years would avoid ongoing proceedings. This would be the case if all goes well. If the child does not cope or if the conflict between the parents escalates again the changes would operate irrespective. I am content to have in place a workable arrangement and leave it to the parents to make changes to it if circumstances change.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.

I have had regard to all of the evidence filed in court and the events both before and after separation.
The father gave an example of the mother’s unhealthy attitude in terms of annexure “I” to his affidavit. He was anxious that the mother was proposing on going overseas but on reading the letter it was a sensible careful and thoughtful request.
The mother’s solicitor wrote as follows:-[16]
My client [the mother] has received an opportunity to travel to [Asia] for a period of three to six months to [for employment].
My client is conscious of [the child’s] age and maintaining [the child’s] relationship with your client, and therefore does not see that this would be a viable option within the next 12 months.
However, could you please advise whether your client would be at least willing to consider such an opportunity, upon further information being furnished to him, at a time following that 12 month period.
If your client is open to the idea, my client will provide further information and can also commence training that would be necessary to undertake the opportunity.
[16] Annexure I to the affidavit of the father filed 5 December 2011 – letter Fitzgerald & Browne 28 June 2011.
The father says of this that this was an unreasonable proposal and not in the child’s best interests. He said it showed that the mother has a lack of understanding about the need for his contact with the child.
The letter could not have been gentler. It acknowledged the importance of the father to the child, invited discussion and was clear that if permission was not given it would not occur.
In some ways the father’s response may have been somewhat intimidatatory. The mother ought to be able to ask a question and if the answer is no then so be it, however she ought not to be criticised for raising the issue.
The father’s approach in this regard was narrow and inflexible. This includes the issue of the child attending School 2 this year.

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)      has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)     to communicate with the child; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)     communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have had regard to the events that have happened and the circumstances that have existed since separation.
In coming to the conclusion in these proceedings I have reflected on all of the evidence to consider the extent to which the children’s parents have fulfilled or have failed to fulfil their responsibilities as parents as set out in s 60CC(4). In having regard to all of the material before me and all of the findings of fact I determine that in my view the best interests of the child are served by the orders set out at the commencement of these reasons.
Nothing new arises out of the considerations of the matters in s 60CC(4) and (4A) which have not already been discussed in detail in these reasons. I have dealt with almost all of those issues in these reasons so far

DISCUSSION

In these proceedings there was essentially an agreement as to parental responsibility, school holiday time and special occasions. I have put in place the agreement in the form of consent orders.
The parties have agreed to equal shared parental responsibility. The Independent Children’s Lawyer, with some concern, now accepts that the order ought to be made. I share the concerns of the Independent Children’s Lawyer with regard to the agreed equal shared parental responsibility.
The father has an inflexible attitude in relation to parenting decisions. The mother tends to be at times somewhere histrionic and in the past has resorted to the use of hyperbole. The family consultant observed that the mother at times exhibits an ‘overly problem saturated focus’.[17]
[17] At paragraph 53 of the Family Report dated the 31August 2011.
The combination of these personality and behavioural traits of the parents has been problematic in terms of their parenting. It seems to me that each party blames the other for issues that have arisen and, at least in the past, have been reluctant to look to themselves as being part of the problem. In many ways it is akin to the component parts of Nitroglycerin each blaming the other, when it is the combination that is the fundamental source of instability and explosiveness.
Consent orders were made in July 2010 and part of those consent orders required the parties to undertake some behavioural therapy treatment. To their credit both parties undertook this treatment and I have had the benefit of the reports from the respective psychologists.
The mother ceased treatment in April 2011 at the suggestion of her psychologist. She went back in August 2011. The mother may benefit from more treatment, but that at the end of the day is a matter for her.
The impact of this has been a better movement towards co-operative parenting. However, there is an issue as to whether this is done because the parents are listening to each other or whether it is in the shadow of the court proceedings and each are endeavouring to present themselves in the best possible light.
Having regard to the evidence that stands before me, I am satisfied that there ought to be an order for equal shared parental responsibility. I have simplified the order suggested by the parties.
The consequence of that determination is that I must consider firstly equal time and, if I do not determine that equal time is appropriate, consider significant and substantial time.
This leads to the substantive issue between the parties was whether the child lives with each of the parents for equal time or significant and substantial time with the mother at either four days per school fortnight (as sought by the mother) or five days (as recommended by the family consultant) and with a question of some sort of increasing time over the medium term future.
As to equal time, the father’s case has long sought orders or agreement that the child should live with him for half of the time and with the mother for half of the time. He says this is the arrangement that exists with his daughter and relies upon the evidence of that child’s mother in that respect.
The question of equal time has been the subject of debate and dispute between the parties from soon after separation. The family consultant observed in her Children’s and Parents Issues Assessment dated 19 January 2009 that ‘a substantial shared care arrangement as proposed by the father does not appear to be in [the child’s] best interest’. In her recent report she promotes the move towards equal time when the child turns eight.
At present the child complains about tiredness and wanting to spend time with the mother. I accept the evidence of the mother that, from time to time, the child comes back disturbed after spending time with the father.
I am not sure for this child, at present or the longer term, that equal time would meet his emotional and psychological needs. It may well reflect the desire of the father but does not, in my view, reflect the best interests of this child. This child needs a stable arrangement to remain in place for some years and, having regard to the findings of fact to which I have eluded to earlier, I am not satisfied that equal time would do that.
The family consultant suggests moving to equal time in some years ahead as does the Independent Children’s Lawyer. I do not have the material available to me to make that determination so far ahead on a considered basis.
It is likely to cause more conflict with the parents and is likely to impact, from time to time, upon the child’s ability to manage (having regard to his concerns to which I have alluded to earlier).
Having regard to the evidence of the family consultant, the history of the matter and the presentation of each of the parties and all of the s 60CC factors which I have referred to earlier, I am not satisfied that equal time is in the best interests of this child.
Whatever the outcome, the child will spend significant and substantial time with each parent. The parties have agreed on almost equal time during school holiday periods and have agreed on special dates such as birthdays, Mother’s Day, Father’s Day and Christmas etc.
What is left is the time that the child spends with each parent during school time. It is clear that the child will spend each second weekend with one or the other of his siblings. One weekend with his brothers and the other weekend with his sister.
The question then gets down to a few days per week during school term.
The mother suggests that it drop back to four days per school fortnight bearing in mind the impact of the child which she observes when he returns and his tiredness and his desire in that respect.
The father wishes to maintain as much time as possible saying that his household provides well for the child.
The family consultant has recommended five days per fortnight and that recommendation is supported by the Independent Children’s Lawyer
Having regard to all of the facts and circumstances in this case it seems to me that this is a sensible arrangement for the short, medium and long term time with this child. It will not mean a reduction in the relationship with the father, that will continue to flourish as the child will be spending significant and substantial time with him and with his sister.
This will reduce the number of changeovers and will meet the child’s concerns about being away too long.
The next issue is whether there should be some gradual increase in time. I think not. This child has been the subject of changing arrangements over many years. On one hand the mother has endeavoured to keep the child in her primary care (and I accept that she has done this for what she regards as the best of reasons albeit her nature is not to hear what I say from time to time) and that the father wants the child to be with him half the time because he has made a clear determination, that is the best for the child and the arrangements that exist with his daughter.
As a result the time the child spent with each parent has varied significantly over the last four years or so and has involved significant profound changes to the child. So far the child has managed those changes quite well.
However, it seems to me that the child is entitled to stability and consistency into the future. I intend to put in place order providing for no increase in time into the future.
Sadly and irrespective of what decision I make it is likely that the father will continue to pursue equal time, not because it is in the best interests of the child but because it is, in his mind, what he has determined is fair.
On the other hand the mother does not trust the father and is unable to effectively communicate with him. The mother has some histrionic nature to her personality but is otherwise good with the care of the child.
From time to time she contacts the father to try to seek his help in dealing with these problems. The email of January 2011 was an example. The father’s response was, typically, ‘the problem is yours not mine’ irrespective of the real cause of the problem, and further more ‘it can be solved with the child spending less time with you and more time with me’. The implication was that the mother was a poor mother who could not cope.
The mother is a caring and good parent for this child. The father is likewise a caring and a good parent. The child has a close relationship with his brothers at the mother’s home and his sister at the father’s home. I have had regard to this in this determination.
The child is now at an age where he is alert to the conflict that exists between his parents and this arises from both parents not simply one as asserted by the father. The family consultant’s recommendation for a development to equal time was in part a way to try and encourage a settlement between the parties. There was no evidence as to how equal time would impact on these parties in three of four years time. I do not intend to make an order that far ahead in time in the absence of evidence as to how it will impact on the child.
There was argument as to whether this could lead to more litigation. If the parties chose to litigate there will need to be a significant change of circumstances.
A move to equal time may well precipitate litigation in terms of one party or other’s view of the world in those circumstances. A failure to move time is likely to encourage litigation.
I will put in place orders that meet the needs of the child now which should hopefully reflect into the medium to long term without need for any change.
These orders should enable the child’s relationship with both parents to continue to flourish and enable the child to have a base which will provide, in my view, a stability, consistency and predictability. It has the capacity to last many years into the future as it is significant and substantial time. I have considered equal time but I do not regard it as appropriate to meet the best interests of this child.
I am satisfied that the six day per fortnight during school time is not working and that the child is requesting less time and is generally struggling in that capacity. Whilst there is some issues as to the mother’s influence, I am satisfied that the child’s expression that six days is too long is his view.
I am equally satisfied that the child has been having difficulties, and I accept, (with some reservations) the evidence of the mother, the maternal grandmother and the observations of the brothers given to Dr A (albeit there is some issue as to the quality of those statements).
I propose that the child should spend significant and substantial time with the father but that should be from the end of school Wednesday to the commencement of school Monday.
I am not prepared to make orders which will impact on this child three or four years ahead. It is not clear what will be happening with the child. The parties create conflict out of nothing but pure communication problems. An example was with regard to the child attending School 2 for his kindergarten year in 2012.
If the child spends significant and substantial time with the father for five days per fortnight during school term he will continue to have a good relationship with the father and his sister. Those weekends will need to fit in with the time the child spends with his sister.
As such I will make orders to give effect to that outcome.

I certify that the preceding one hundred and ninety eight paragraphs (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 1 March 2012.

Associate:

Date: 16 March 2012

[2012] FamCA 127

16 March 2012

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Procedural Fairness

Remedies