Mansell and Mansell

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANSELL & MANSELL

[2016] FCCA 134

Catchwords:
FAMILY LAW – Parenting – one child aged 5 years – issue as to which school the child is to attend – previously child spent week about with each parent – both parents seek for the child to reside with them – mother resides in Sydney – father resides in (omitted) – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), Part VII

AMS v AIS (1999) 199 CLR 160
Heath & Hemming [2011] FamCA 689
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] Fam CAFC 92; (2009) 41 Fam LR 483
MRR v GR [2010] HCA 4
U v U (2002) 211 CLR 238; (2002) FLC 93-112

Applicant:

MR MANSELL

Respondent:

MS MANSELL

File Number:

NCC 2386 of 2014

Judgment of:

Judge Middleton

Hearing dates:

11, 12, 13 and 14 January 2016

Date of Last Submission:

21 January 2016

Delivered at:

Newcastle

Delivered on:

29 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Bithery

Solicitors for the Applicant:

The Charlestown Law Firm

Counsel for the Respondent:

Ms Gillies

Solicitors for the Respondent:

T H Walker Solicitors

ORDERS

The parents have equal shared parental responsibility for the child X born (omitted) 2010 (“the child”).
Each of the parents have sole responsibility for making decisions about the day to day care, welfare and development of the child during the periods the child lives with or spends time with them.
The child live with the mother.
The child spend time with the father at all times as may be agreed and failing agreement no less than:
(a)during all school terms from 5:30pm Friday until 5:30pm Sunday and continuing each alternate weekend thereafter;
(b)for half of the school holiday periods commencing 5:30pm on the last day of the school term to 9.00am on the midpoint day of the school holiday period.
(c)Each Wednesday evening from after school until 7.00pm, in the Sydney metropolitan area during each school term and provided that the father provides the mother at least seven days written notice.
(d)Each Father’s Day weekend from 5:30pm Friday until 5:30pm Sunday, with the father’s alternate weekend time pursuant to Order 4(a) above to commence again on the second weekend following the father’s day weekend.
(e)On the child’s birthday, in the event it falls on a school day from after school until 7.00pm and in the event it falls on a weekend from 9.00am until 1.00pm.
The father’s time be suspended as follows:
(a)during the Christmas period in odd numbered years from 5:30pm on Christmas Eve until 5:30pm on Christmas Day and in even years from 5:30pm on Christmas Day until 5:30pm on Boxing Day;
(b)on the Mother’s Day weekends from 5:30pm on the Saturday until 5:30pm on the Sunday.
The child’s time with the father be implemented by the mother delivering the child to the father at the rest area in (omitted) at the commencement of the child’s time with the father and the father returning the child to the mother at the same venue at the end of the child’s time with the father.
The child’s time with the father pursuant to Order 4(c) and 4(e) above be implemented by the father picking the child up from school at the commencement of the child’s time with the father and the father returning the child to the mother at her residence at the end of the child’s time with the father.
The father be at liberty to communicate with the child by telephone each Monday, Wednesday and Friday at 6.00pm and the mother is to ensure the child is available to answer and do all things necessary to provide the child with privacy during such calls.
The mother be at liberty to communicate with the child by telephone each Monday, Wednesday and Friday at 6.00pm at all times that the child is spending holiday time with the father and at 6.00pm on Saturday each time the child spends time with the father during the school term on alternate weekends.
Each party notify the other in writing of their telephone number and residential address and advise of any changes as soon as practicable, however, not less than 24 hours prior to such change.
Each party is at liberty to attend sporting and schooling events to which parents are otherwise normally invited when the child is in the care of the other parent.
Each party shall inform the other should the child become ill or require medical attention as soon as reasonably practicable.
Each party is restrained from allowing the child to remain in any environment where they are exposed to passive cigarette smoke.
The father is to obtain school reports, notes and other information from the child’s school at his cost and this order is sufficient authority for that purpose.
Each parent is to do all acts and sign all documents necessary to enrol the child and cause the child to attend at (omitted) School as from the commencement of the 2016 school year.
The father is restrained from bringing the child into the presence of his brother or allowing, to the extent that it is possible for him to prevent, any third person from allowing the child into the presence of his brother.
In the event of either party refusing to do all acts and things necessary to enrol the child and cause the child to attend (omitted) School, then a Registrar of the Family Court of Australia is hereby empowered pursuant to section 106A of the Family Law Act1975 (Cth) to do all acts and things in the place and stead of the defaulting party.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2386 of 2014

MR MANSELL

Applicant

And

MS MANSELL

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application concerning parenting arrangements for X born (omitted) 2010.
On 15 September 2014 the father, Mr Mansell aged 36, bought an application seeking children’s orders.
The matter came before the court on 23 September 2014 and on that date the child’s mother, Ms Mansell, aged 35 (the respondent) , and the applicant entered into consent orders providing for the child to live in an equal time arrangement one week on one week off.
At the time of entering into those orders the respondent mother lived in Sydney and the applicant father lived in (omitted).
The parties have remained living in (omitted) and Sydney respectively with the child X to commence school in 2016. The issue of primary residency requires determination.
Neither party wished to relocate in order to keep the current parenting arrangement in place. Both the applicant father and the respondent mother gave clear evidence that they would not move from their current locations even if it were decided that it was in X’s best interests for the equal shared time arrangement to remain in place.
In those circumstances both the applicant and the respondent embarked upon litigation with each attempting to satisfy the Court that the other was not a suitable parent to provide the full-time care of X.

Background

The parties commenced living together in Sydney in September 2008.
In November 2009 the parties moved to live together at (omitted), a suburb of (omitted).
On (omitted) 2010 the parties married and on (omitted) 2010 X was born.
The mother is a (occupation omitted), now specialising in (omitted).
The father lists his occupation as (occupation omitted) however he has worked predominantly as a (occupation omitted) throughout his relationship with the mother up to and including the days of hearing in this matter.
In 2012 X commenced preschool at (omitted) Preschool in the (omitted) region.
Between 2009 and 2012 the mother sought employment in the (omitted) region and unfortunately could not find suitable employment.
Whilst still attempting to find employment in (omitted) the mother took up a position in 2010 at (employer omitted).
As a result of the mother’s employment she was required to commute from (omitted) to (omitted) on a daily basis.
The parties purchased a block of land at Property A with the intention of building a home in February 2011.
The mother found employment in (omitted), which reduced her travelling time to approximately 1 hour drive each way.
In early 2012 the father commenced working for (company omitted) in (omitted).
It was in 2012 that X met his paternal grandparents for the first time.
In July 2012 the mother commenced working full time as a (occupation omitted) for (omitted) School, (omitted). From this point in time both parents were commuting to Sydney and X was cared for one day per week by the maternal grandmother.
In October 2013 the father commenced working from home for his then employer, four days per week. He was required to attend the office in Sydney each Wednesday.
In early March 2014 the parties separated. The parties disagree as to whether this separation was permanent or whether it was temporary.
What is clear is that between March 2014 and 10 September 2014 the mother spends time both in Sydney and in (omitted) at the former matrimonial home including overnight.
It was very apparent that the parties disagree as to the amount of time X spent with his mother between March and September. The mother says she cared for X five nights each week and the father says that he was the primary carer for X during this time.
The mother and X left the former matrimonial home on 10 September 2014 and initially live in the home of the maternal grandparents.
X was enrolled in a preschool in the (omitted) area shortly thereafter.
In December 2014 X and his mother moved to independent accommodation also in the (omitted) area.
Both the mother and the father share their accommodation with a flatmate. Both the mother and father provide evidence to the court that they will continue to live with this flatmate for the foreseeable future.
The father, since separation, has been involved in a relationship with at least three separate women at different times. The father is now in a relationship with Ms T and has been in this relationship since May 2015. It is the intention of both the father and Ms T that they shall commence living together as soon as the home at Property A is completed.
The mother has not re-partnered nor has she been in a relationship since separation.
During the course of the litigation the father raised the issue as to whether X would be ready to commence formal schooling at the commencement of 2016. This issue was first raised on 28 August 2015 when the parties were attending court.
The mother sought to discuss with the father his views about the child commencing school in October 2015 however the father informed her that he would address the issue through the court proceedings.
At the time of trial Mr Mansell the father held the view that X was ready to commence formal schooling in 2016 and therefore no issue was taken with him commencing school.
Each of the parents had enrolled X in a school of their choice in their respective areas. Neither parents raised an issue as to the suitability of those schools.
During the course of litigation the parent’s relationship has deteriorated to the extent that allegations are now levelled against each other in an attempt to prove to the court that the other party is not fit to have X live with them on a full-time basis.

The material

The applicant father relied upon the following documents:
1.Further amended application filed 7 December 2015;
2.Affidavit of Mr Mansell filed 17 December 2015;
3.Affidavit of Ms T filed 19 November 2015;
4.Affidavit of Ms M filed 17 December 2015;
5.Affidavit of Ms K sworn 16 December 2015;
6.Affidavit of Mr W filed 17 December 2015; and
7.Case outline filed on the first day of trial.
During the course of the trial the father did not call either Ms M or Ms K.
The mother sought to rely upon the following documents:
1.Amended response filed 17 December 2015;
2.Affidavit of Ms Mansell filed 21 December 2015;
3.Affidavit of Ms W filed 21 December 2015;
4.Affidavit of Mr R filed 21 December 2015;
5.The family report of Mr P dated 10 August 2015;
6.Case outline filed on the first day of hearing.
There were 25 exhibits tended throughout the course of the four day trial.

Competing applications

The father sought orders pursuant to his further amended initiating application filed 7 December 2015 as follows:
1.The father and mother have equal shared parental responsibility for the child X born (omitted) 2010 (‘the child);
2.The child live with the father;
3.The mother spend time with the child as follows:
a)During all school terms from 5.30pm Friday until 5.30pm Sunday and continuing each alternate week thereafter;
b)For half of all school holiday periods as follows:
(1)In even numbered years commencing from 5.30pm on the last day of the school term to 9.00am on the mid point day of the school holiday period;
(2)In odd numbered years from 9.00am on the mid point day of the school holiday period until 5.30pm on the day prior to the child attending school for the next school term;
c)During the Christmas period in odd numbered years from 5.30pm Christmas eve until 9.00am Boxing day;
d)On mother’s day weekend from 5.30pm on the Saturday until 5.30pm on the Sunday
4.That the mother’s time be suspended as follows:
a)During the Christmas period in even numbered years from 5.30pm Christmas eve until 9.00am Boxing day
b)On Father’s day from 5.30pm on the Saturday until 5.30pm Sunday;
5.That the mother’s time with the child be implemented by the father delivering the child to the mother at the rest area at (omitted) at the commencement of the mother’s time with the child and by the mother returning the child to the father at the same venue at the end of the mother’s time with the child.
6.That each party be at liberty to communicate with the child via telephone each day at 6.00pm whilst the child is in the other parties care and each party shall ensure the child is available to answer the call.
7.That each party notify the other in writing of their telephone number and residential address and advise the other of any change as soon as practicable however not less than 24 hours prior to such change.
8.That each party shall inform the other should the child become ill or require medical attention as soon as practicable.
9.Each party is restrained from allowing the child to remain in any environments whereby they are exposed to passive cigarette smoke.
10.The parties are to do all acts and sign all documents necessary to cause the child to attend (omitted) Public school as and from the 2016 school year.
11.For the purposes of order 3(b) to calculate the mid point date the parents are to add up the total number of nights in the holiday period including the night of the child’s last day of the school term and the night prior to the child resuming school including any pupil free days and divide that number by two. The mid day point will be the day that provides for both parents to spend the same number of total nights with the child in the school holiday period. In the event there is an uneven number of nights the father is to have the additional night in odd numbered years and the mother is to have the additional night in even numbered years.
The mother sought orders pursuant to her amended response filed 17 December 2015 together with the additional orders set out in the case outline filed on the first day of trial as follows:
1.That the parents have joint parental responsibility for the child X born (omitted) 2010 (“the child”), and as such, each parent shall consult with and keep the other informed of all major long term issues in relation to the child’s care, welfare and development including education, religion and health care issues.
2.That each of the parents have sole responsibility for making decisions about the day to day care, welfare and development of the child during the periods the child lives with or spends time with them.
3.That the child live with the mother.
4.That the father spend time with the father as follows:
a)During all school terms from 5.30pm Friday until 5.30pm Sunday and continuing each alternate weekend thereafter;
b)For half of the school holiday periods commencing from 5.30pm on the last day of the school term to 9.00am on the mid point day of the school holiday period.
5.The father’s time be suspended as follows:
a)During the Christmas period in odd numbered years from 5.30pm on Christmas eve until 5.30pm on Christmas day and in even years from 5.30pm on Christmas day until 5.30pm on boxing day;
b)On the mother’s day weekend from 5.30pm on the Saturday until 5.30pm on the Sunday;
6.That the father’s time with the child be implemented by the mother delivering the child to the father at the rest area in (omitted) at the commencement of the father’s time with the child and the father returning the child to the mother at the same venue at the end of the father’s time with the child.
7.Each party be at liberty to communicate with the child via telephone each day at 6.00pm whilst the child is in the other’s parties care and each party shall ensure the child is available to answer the call.
8.Each party notify the other in writing of their telephone number and residential address and advise of any change as soon as practicable, however, not less than 24 hours prior to such change.
9.That each party shall inform the other should the child become ill or require medical attention as soon as practicable.
10.Each party is restrained from allowing the child to remain in any environment where they are exposed to passive cigarette smoke.
11.The parties are to do all acts and sign all documents necessary to cause the child to be enrolled at and attend (omitted) School as and from the 2016 year.
12.In the event only of a party refusing to do all acts and things necessary to enrol the child and cause the child to attend at (omitted) Public School, then a Registrar of the Federal Circuit Court of Australia is hereby empowered pursuant to section 106A of the Family law act 1975 to do all acts and things in the place and stead of the defaulting party.
The mother sought additional orders pursuant to her case outline as follows:
1.That there be an order for Equal Shared Parental Responsibility.
2.That the parties shall advise each other in writing of any proposed change to their residential address at least 14 days prior to any proposed change.
3.The parties are to keep each other advised, in writing, of any changes to their contact details including email addresses, mobile telephone and land line telephones.
4.Each party is at liberty to attend sporting and schooling event to which parents are otherwise normally invited when the child is in the care of the other parent.
5.In the event that the father is to be present in the Sydney metropolitan area on a Wednesday evening during school term and provided that he gives the mother at least 7 days written notice the child shall spend time with him from the conclusion of school until 7pm.
6.Where these orders calls for the giving of notice in writing to either party the sending of a sms or email will be sufficient to discharge that obligation.

The issues

The issues for determination are as follows:
1.With whom should X live with predominantly;
2.Whether either party should be expected to relocate in order to facilitate an equal time arrangement;
3.The mothers mental health;
4.The mother’s drug use;
5.The mother and father’s ability to facilitate and encourage a meaningful relationship between X and each other;
6.The attitude of the mother and other members of the maternal family toward the father and his role in X’s life;
7.The history of the parenting arrangements to X both prior to and following separation.

The law

This matter involves parenting arrangements for the child X born (omitted) 2010, currently aged five years of age.
It is imperative that I follow the statutory framework informed by the objects expressed in section 60B(1) and the principles underlying those objects in section 60B(2) and undertake consideration of and make findings about each of the best interests considerations set out in section 60CC[1].
[1] Heath & Hemming at para pursuant to Kent J at para 87.
Those objects and principles are as follows:
FAMILY LAW ACT 1975 - SECT 60B
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) 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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
Pursuant to section 60CA I must regard the best interests of the child as the paramount consideration.
In determining what is in the child’s best interests I must have regard to the matters as set out in section 60CC namely:
FAMILY LAW ACT 1975 - SECT 60CC
How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents 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;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
I must also make a determination in relation to parental responsibility for X. Section 61DA provides a presumption for equal shared parental responsibility unless the presumption does not apply or it is not in the child’s best interests, as follows:
FAMILY LAW ACT 1975 - SECT 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
If I make an order for equal shared parental responsibility then the provisions of section 65DAA are triggered namely:
FAMILY LAW ACT 1975 - SECT 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:       See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:       See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note:          Paragraph (c) reference to future capacity-the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In my view there is a clear legislative intent that children have the benefit of both of their parents having a meaningful involvement in their lives to the extent that it is in their best interests for this to occur.

The evidence and assessment

Before turning to the evidence it is important to set out the effect of each of the parties’ proposals to the extent that they will affect X.
The mother’s proposal would see X continuing in the care of his mother who has been a predominant or primary feature for a large part of his life and continuing to live in the same residence as he has been living for over 12 months now and in the same circumstances for his foreseeable future.
The mother’s proposal will see X continuing to spend time with the maternal grandmother, maternal grandfather and extended maternal family each week as he has been doing for most of his life.
If the mother’s proposal were followed X will attend school in the community where his mother and maternal family are well known. He will attend a school where some of his friends from the preschool he was attending will also attend.
X will continue to be cared for by his maternal grandmother for periods before and after school as has been the case for some considerable time. X will leave and go to school close to his mother’s work and in close proximity to the maternal family.
The mother’s proposal would see X having the opportunity to spend additional time with his father during the week given that it is his father’s evidence that he has to travel to major cities in New South Wales for his present position and that his present employment is flexible as he works from home.
If the Court were to follow the father’s proposal it would have the effect of seeing X moved from his present premises, that is the premises in which he lives with his father, in the week that he starts a new parenting arrangement.
In the same week that X will commence formal schooling he will also commence living in a household with the father’s present partner and her son, something that he has not been exposed to on a full time basis to date.
The father’s proposal will allow X to continue to be cared for by his father who has been a predominant or primary feature of his life to date.
X would commence school with some of his friends from the preschool he attends in the (omitted) area. X would spend time with his mother one night each alternate weekend and at the same time most likely other members of his maternal family. The father’s proposal does not provide an opportunity for the child to see his mother during the week. In any event the mother’s employment would not allow this to be a possibility.
If the court were to follow the father’s proposal X would not have access to an extended maternal family in the same manner that he has had access to his extended maternal family.
If X were to predominantly live with his father he would be subjected to unknown care arrangements as at the present time the father’s employment is not certain and the travel requirements even for his present position are not known to the court.

The father

The main thrust of the father’s case was that he has been the primary carer for X throughout X’s life and that, as he had flexible working arrangements, he could provide better care of X both before and after school.
The father’s evidence was that the mother was depressed following the birth of X and as a result he took on the primary carer’s role for the first 13 weeks of X’s life.
His evidence was to the effect that upon returning to work, which required that he was absent from the home for a minimum of 12 hours per day five days a week, he would resume the primary care of X.
The father alleged that there were days during this time when he was being cared for by his mother that X would not be bathed. His evidence was that the mother did not clean X’s bottles and that she would leave clothing and nappies thrown on the floor. The father gave evidence that the maternal grandmother would come to the home two to three times each week during the day to care for X and that at other times the mother and X would go to Sydney sometimes overnight.
On the father’s evidence the mother could not cope and needed to get out of the house after X was six months of age. His evidence was that she obtained a job working casually at (business omitted).
The mother denies that she sought a job at (business omitted) and complained that the father forced her to return to work so that they could continue to meet the mortgage payments on the block of land and development at Property A.
The father gave evidence that in 2012 his work arrangements changed so that he could work from home Monday, Tuesday, Thursday and Friday. He was required to work in Sydney each Wednesday. He says that he was required to be away from home for day trips three to four times a month and attend conferences three to four times a year for between three to five days each time.
The father provided evidence that he was almost entirely involved, to the exclusion of the mother, in X’s day to day arrangements including pickup and drop off at preschool, arranging play dates with friends, delivering the child to the maternal grandparents, and enrolling the child in an athletics program.
It was clear from the father’s affidavit material that he was seeking to establish himself as the primary carer to X from birth until the date of trial.
His evidence regarding the time X spent with his mother between March 2014 and September 2014 when an equal time order was made, was that the mother was disinterested in spending time with X and that he was required to organise outings so as to facilitate time between X and his mother.
The father complained that the telephone time arrangement was not working as the mother did not ensure that X was sitting without distractions at the time she knew he would be speaking to his father.
The father also gave evidence that the mother was disinterested in spending telephone time with X and at times she was late in telephoning him.
It should be noted that since the Orders were made in August 2014 X has been required to speak to the parent with whom he is not living each night on the telephone.
The Orders of September 2014 also required the mother to surrender the child’s passport to the Registrar of the Federal Circuit Court of Australia at Newcastle.
There was a notation made on 23 September 2014 that the mother had indicated that she intended to travel for a period of two weeks to (country omitted) with the child.
The father complained that the mother did not surrender the passport in accordance with Order 8. He caused his solicitor to write to the mother’s solicitor seeking the surrender of the passport.
The mother’s solicitor wrote to the father’s solicitor seeking consent to the mother’s solicitor retaining the passport as the mother and X would be travelling to (country omitted) in April.
The passport was subsequently not surrendered until 5 May 2015 when X and his mother returned from (country omitted).
Notwithstanding the fact that the father gave evidence that he believed an order was made by consent which would allow X to travel to (country omitted) with his mother, he maintained that he was unaware of the travelling arrangements.
The father had placed X on the airport watch list prior to the Orders being made on 23 September 2014.

On 4 April 2015 the mother telephoned the father from the airport telling him that the Federal Police had stopped her from leaving the country. The father gave evidence that he would provide a letter to the mother allowing her to leave the country once he was provided with details about contact addresses and telephone numbers or an itinerary.
The father denied that he had received an itinerary in January 2015. The mother gave evidence that she provided an itinerary at Court on 30 January 2015. Exhibit 17 is a copy of the itinerary of the mother which she says she provided and I note that the email was received on 07 de enero de 2015, or in English 7 January 2015. There is a handwritten notation stating “paid on 26 January 2015”.
The father says that he was provided with the itinerary when it was sent from the Sydney International Airport on 4 April 2015.
The father says he was never provided with accommodation details or addresses and in any event did not provide the letter.
As a consequence, X’s travel had to be postponed for two days whilst the mother convinced the relevant authorities that she was permitted to travel to (country omitted) with X.
The father complains that the mother has a history of drug use. He says that on occasions when they were living together the mother informed him that when she lived in (country omitted) she would go to clubs and use drugs. The father also gave evidence that the mother tried to entice him into smoking drugs together and baking marijuana cookies.
The father gave evidence that the mother might have been using drugs during her time in (country omitted).
The father gave evidence that when she returned to Sydney airport on the afternoon of 21 April 2015 he was at the airport to meet X. He says he noticed the mother was speaking to him incoherently or not making sense and that her eyes were red and appeared to be glazed. He says he formed the impression that she was affected by drugs even though he appreciated the fact that she had been on a plane for a long period of time.
As the evidence fell, it was agreed that the mother had been in flight for some 15 hours with X who at the time was four years old and that they had landed in one of the worst storms to hit Sydney.
The father caused his solicitor to write to the mother’s solicitor requesting the drug screening test on the back of his observations of the mother on 21 April 2015.
The request for a drug test was denied and in response the mother instructed her solicitor to write the following:
“Our client does not intend to dignify your ridiculous request for a drug test in these circumstances and we agree with her that it is a totally ludicrous request presumably made in a desperate attempt to attack our client is apparent.”

Notwithstanding the response, the father again caused his solicitor to write to the mother’s solicitor as he was concerned about X being in the mother’s care if she had been consuming drugs.
The father also raised the issue of the child being exposed to cigarette smoke in the mother’s home. On 23 September 2014, due to the father’s concerns, a consent order was made that X would not be exposed to passive smoking. The father gave evidence that he is aware that the mother continues to smoke as he has seen cigarette packets in her car and he has seen a purple cup full of cigarette butts also in her car.
The father complained that the mother had arranged for X to see a Psychologist, Ms C because he had developed a stutter post separation. The father says he knew nothing about the referral until X’s preschool teacher informed him of it in September 2015.
The father denied that he had spoken to Ms C although gave evidence that she informed him that she had spoken to him twelve months ago. Ms C informed the father that she had seen X once approximately twelve months ago in mid September 2014 and once approximately two weeks ago.
There were a number of aspects about the father’s evidence, particularly whilst under cross examination that caused me some concern.
The family report was ordered and a report was prepared by Mr P on 10 August 2015. The parents were interviewed on 3 August 2015 for the purposes of the report.
The father did not inform the report writer that he believed X was not ready to commence school in 2016.
The father informed the mother through his lawyer whilst in court on 28 August 2015 that he did not believe X was ready to commence formal schooling. As previously outlined thereafter he refused to communicate with the mother about that issue and informed her that he would address it through these court proceedings.
It was in this context that the mother arranged for X to be assessed by Ms C on 17 September 2015. Ms C provided a letter which became annexure “K” to the mother’s affidavit filed 21 December 2015, that provided the opinion that X would benefit from attending school.
The father became aware that the mother had arranged an orientation program at (omitted) School. He caused his solicitors to write to the mother informing her that he did not consent to X attending the orientation for fear that it might be confusing for the boy.
Under cross examination the father admitted that he had arranged for X to attend (omitted) orientation through (omitted) School in October 2015.
It concerned me, as the evidence fell, that the father would deliberately interfere with an orientation program conducted by a school the mother wanted X to attend in Sydney whilst at the same time arranged for an orientation program at a school that he wished X to attend. I formed the view that the father was attempting to bolster his case through exposing X to a school of his choosing.
I formed the view that this was one of a number of aspects about the father’s case where he put his own interests above those of X.
The father admitted to lying under cross examination proffering the excuse that he did not intend to. The father was, in my view, very evasive whilst being cross examined.
The father did make admissions against his interest however, acknowledging that it was a benefit to X that the maternal grandmother had been involved in his life since birth and he indicated that he valued the relationships of the maternal grandparents and their extended family and stated that X valued those relationships very much.
The father admitted that he had been seriously assaulted by his brother and that his brother was violent. He agreed to an order that he be restrained from bringing X into the presence of his brother or allowing any third person to do so.
The father was cross examined as to the amount of time that he said he had been away from home whilst the parents lived together. After being taken to many incidents of being away from home, the father conceded that his affidavit evidence was quite misleading.
The father conceded that he would not have left X in the care of his mother if the concerns he raised in his affidavit were true. Under cross-examination he conceded that X was both safe and well cared for by his mother. He further conceded that his affidavit was misleading to the extent that it sought to prove that the mother was dis-engaged from X and did not care for him appropriately.
The father admitted that he has not reached an agreement in relation to his present working conditions. He indicated that he would not continue to work for his current employer on the money that he currently earned.
The father could not provide evidence as to how often he would be required to travel. He indicated that he is the New South Wales Sales Manager for a Queensland company and that he would have to travel throughout capital cities in New South Wales. The father did not produce a letter of offer from his current employer (omitted).
The father in his affidavit stated that he could structure his employment around X however conceded under cross examination that he has had assistance from at least two other women to assist picking up and dropping off X.
The father conceded that the mother was more available then he regarding X’s care arrangements.
The father conceded that his affidavit was misleading when he was trying to establish that he was the primary carer after it had been put to him that the mother was as involved in X’s life as he was.
With regards to the issue of X’s overseas travel it was put to the father that it had been misleading for him to say that he had not been given notice of the intended travel and he conceded that point. He also conceded that he knew the dates the mother was travelling but “I didn’t know the exact time.”
The father was cross-examined about the assessment he made of the mother when she arrived back in the country. He would not accept that there was any other possibility for her demeanour other than she was drug affected. He would not accept that she could have been tired, or stressed, or even drunk. He admitted that he had very limited knowledge about drugs but stated that as at that date, that is the date he was sitting in court giving evidence, he still held the view that the mother had been taking drugs at the time she arrived back in the country in April.
I find that aspect about the father quite concerning. I formed the view that the father would use any opportunity to undermine the mother’s parenting capacity and this was but one example of his willingness to do so and of his unreasonable assertion.
The father was cross examined in relation to his relationships post separation. It was quite clear that he exposed X to those relationships within a very short time of having commenced the same.
X was aware of “Ms V” however the father denied involving X in Skype time with her. I do not accept that to be the case. I am satisfied that the father will continue to deny the existence of a fact until such time as he is faced with independent proof of same.
The father was in a relationship with “Ms J” for approximately three months. In that short time she had attended court with the father and stayed with the father. The father conceded that X had spoken to Ms J on the phone from time to time.
Shortly after separating from Ms J in March or April 2015, the father commenced a relationship with his current partner Ms T in May 2015. Within a couple of weeks he, X and Ms T went on holidays to (omitted). Ms T and the father slept in the same bedroom.
Since the holiday on (omitted), X has been introduced to Ms T’s son who is approximately 7 years of age.
The father in my view showed a distinct lack of insight in relation to how confusing it might be for X to be exposed to the father’s relationships in this manner. I formed the view that the father was putting his interests above those of X.
The father gave the evidence that he simply did not want to move to Sydney even though his work arrangements would not be affected. Of course the father is perfectly entitled to live where he wants.
My overall impression of the father having regard to the many misleading statements in his affidavit as against the concessions he made after being put to proof in cross examination was that he was deliberately attempting to mislead the court by downplaying the mother’s role in X’s life and overplaying his hand.

Ms T

Ms T gave evidence consistent with the father about how she was introduced to X.
Her evidence was that she also could see no problem with the speed in which X was introduced to her and with being placed in a situation very quickly having been exposed to his father and her sharing a bedroom on (holiday destination omitted).
She further gave evidence that her son had previously lived with another man for approximately 12 months after she had separated from her husband.
Ms T was very supportive of the father and was looking forward to living with him and X in the future.

Mr W

Mr W gave evidence that he looked after X from time to time whilst X was in the care of the father pursuant to the current arrangement.
He also gave evidence that after separation the father would attend his home approximately twice a week. This evidence contradicted the father’s own evidence that he was caring for X on an exclusive basis because the mother would not involve herself with X unless he arranged outings for her to do so.

The mother

The mother gave evidence that she was the primary carer for X and that had been the case from birth.
The mother provided evidence that the father had to travel regularly to attend seminars and face to face meetings with clients. She said that he did regular day trips and attended week long conferences numerous times each year.
The mother’s evidence was that she left the former matrimonial home in March 2014 and separated on a final basis in early August 2014 although continued to live under the same roof as the father until 10 September 2014.
Her evidence was that although she left the former matrimonial home in March she continued to stay in the former matrimonial home five nights per week and spent two nights per week in Sydney at her parent’s home.
Her evidence was that on 10 September 2014 she unilaterally moved her and X to Sydney and did so in secrecy when the father was away because she was frightened of his reaction.
Her evidence is that the father has no ties to (omitted). His family live in (omitted) and he can work from anywhere due to his working arrangements. She is of the view that he is staying in (omitted) because of the Property A property as that is his dream home. She says that the parties had massively overcapitalised when embarking upon the building project.
Exhibit 14 was a property inspection report obtained from Century 21. The report indicates that the property would be worth $300,000.00-$400,000.00 in its uncompleted state and between $570,000.00 -$600,000.00 upon completion. The father gave evidence that there was mortgage indebtedness exceeding $600,000.00 in relation to that property.
She gave evidence that she would prefer the father to move to Sydney and that she could not move to (omitted) nor would she do so.
The mother’s evidence was that she didn’t believe that the events of the first couple of years of X’s life were particularly relevant to the current application particularly given the current 50-50 parenting arrangement. She formed the view that both she and the father have shown that they are both reasonably capable parents.
I agree with the mother on this point.
The mother concedes in her affidavit that she was exhausted from caring for X alone each day. She agrees with the father that she would remain in pyjamas and a dressing gown in the early stages of X’s life. She says she found the father’s comments about her appearance to be unnecessarily mean and lacking in any understanding.
The mother acknowledged that the father did his very best to help when he was at home.
The mother acknowledged that she had depression and that she sought treatment in and around the time of separation. She gave evidence that in March 2014 she told the father that it was:
“too much for me, I am exhausted and I need help and support. I cannot cope anymore. I cannot do it any more.”

The mother says that she took X to Sydney with her at that time but within days agreed that it was best for X to stay in his routine in (omitted).
The mother’s evidence concerning X visiting a Psychologist was that although she was talking to X every day and spending time with him on Wednesdays and every weekend he was missing her terribly and became anxious. The mother says X developed a stutter.
The mother’s evidence is that she discussed X’s anxieties with the father and it was agreed to book X in to see a Psychologist in order to provide support and assistance. The mother says she provided the contact details for Ms C and the father told her he had spoken with her and would be more than happy for X to see her. The mother thereafter arranged the appointment.
To the extent that the mother’s evidence is in contrast with the fathers on this point, having regard to the fact that I have found the father’s evidence to be deliberately misleading, I must prefer the evidence of the mother. I am satisfied that not only was the father informed of the appointment with a Psychologist but that he spoke with the Psychologist prior to the appointment taking place.
The mother’s evidence is that she agreed to moving back in (omitted) in around June 2014. She says she did so to assist X who had become very confused because of the separation.
It is the mother’s evidence that in August 2014 she told the father that she did not want to be in a relationship with him. She states that the parties agreed to separate on a final basis and on 26 August 2014 she received a letter from the father’s solicitor seeking to reach a property settlement as quickly as possible.
The mother concedes that she left the former matrimonial home on 10 September 2014 without the consent of the father as she was fearful of how the father would react.
The mother lived with her parents from September until mid December 2014 whereupon she found independent living. When the mother returned from her holiday in (country omitted) in May 2015 she found alternate accommodation again, in (omitted).
The (omitted) property is the current residence of the mother and she states that it is a two minute walk from X intended primary school and that her flatmate Ms A continues to live with her and X and will do so into the future.
It is the mother’s evidence that her home is a one minute walk from her parent’s home. Furthermore, the close proximity allows X to go and play with his cousins and visit his maternal grandparents and other maternal family members “a couple of nights a week.”
The mother raises some concerns about the father unnecessarily involving X in his relationships with his girlfriends. She is concerned that he does not understand the potential damage he is doing to X by constantly involving him in temporary relationships. As indicated, I am also of the view that the father lacks insight in relation to this aspect of his parenting.
The mother provided a letter, annexure “I” to her affidavit filed 21 December 2015, from Dr K, Consultant Psychiatrist dated 4 February 2015. That letter indicates that the mother’s mental health is of no concern and that she has responded to treatment well. The mother sought to obtain a medico legal report from Dr K however he declined to write one on the basis that he had previously supplied his clinical notes and he was taking extended leave from 22 December 2015 until early March 2016 and would not be available during that time.[2]
[2] See annexure “R” of the mother’s affidavit filed 21 December 2015
The mother gave evidence that she was informed by the father that X was not ready for the preschool because he was not emotionally mature. The mother provides evidence that she attempted to discuss this issue with the father via SMS messaging and the father informed her that he would present material on this issue at trial.
With that in mind the mother provides evidence that she then organised for the preschool at (omitted) to make comment about whether the child was ready for school or not. She received that comment by way of a letter dated 16 November 2015 that was annexed to the mother’s affidavit at “M”.
The mother was informed on 19 November 2015 that the father had filed an application in a case seeking that X be enrolled in (omitted) School in 2016. The mother states that she was confused by the father’s actions and believed it was the father putting his own needs before X’s. As indicated earlier, I also formed the view that the father was placing his own needs before X’s in this regard.
Under cross examination the mother conceded that the father is a capable and loving father. She conceded that X was safe in his father’s care for up to fifty percent of the time.
When asked as to why X would not therefore be safe in the father’s care one hundred percent of the time she indicated that she had some concerns with the level of care that he might receive due to the father’s travel requirements involved in his work.

The mother conceded that she was of the view that X would be safe from physical or emotional harm if it were ordered that X live with him and spend time with her.
When pressed as to what would be the difference as against her proposal for X and that of the father she stated that X would have a different family life because he would be involved with her rich family life in Sydney. Her working hours enabled her to be available more readily for X and her working hours finish when X finishes school and she would be there to do his homework and cook his dinner. The proximity from her work to X’s school would enable her to attend school if needed at short notice. She stated that X had seen his maternal grandparents an enormous amount of time since birth and that he would greatly miss his maternal grandparents and his cousins and aunts if he were to live in (omitted).
The mother conceded that X will greatly miss his father but indicated that she would foster the relationship between the father and X. The mother’s proposal sets out that X would spend more time with the father under her proposal than he would with her under the father’s proposal.
I formed the view that the mother would be more inclined to facilitate X’s relationship with the father then the father would in relation to X’s relationship with the mother.
It was put to the mother that she actually had formed the view to separate, and had told independent people that she had separated on about 8 March 2014 and not as she suggested in August 2014. Nothing turns on this point.
There were aspects of the mother’s evidence which showed that she was making decisions with regards to X’s schooling that did not involve the father. This was against the Order for equal shared parental responsibility made in September 2014.
It was put to the mother that she would not follow Court orders because she did not place the child’s passport with the Registrar pursuant to the Orders made in September 2014. Her evidence was that she placed the passport with her solicitors on 24 September 2014. She conceded that her actions in doing so would not have assisted with the levels of trust between the parties.
The mother conceded that she took the child to see the Psychologist, Ms C without the father’s permission in the latter part of 2015. She said she did that just like the father did not tell her things and that she knew the father would object.
It was put to her that she did it to obtain a benefit for her case. The mother said she did it for the benefit of X so that he would not get held back from school. I am satisfied, having regard to the father’s decision not to discuss the schooling issue with the mother after he raised it, that the mother was attempting, for the benefit of X, to put before the court information as to X’s readiness for school.
After hearing the mother’s evidence under cross examination I formed the view that it was clear both parents were willing to paint a very dark picture of each other and to that extent I find that they both lost child focus at various times throughout this litigation.

Mr R

The maternal grandfather gave evidence that he has been involved in X’s life since X was born. He gave evidence of X enjoying his time with his cousins and playing in the maternal grandparent’s home. He gave evidence that he has a very close relationship with his daughter.
Whilst being cross examined he confirmed that in his view X has everything in Sydney including close proximity to the maternal grandmother, cousins, uncles, aunts, his school and the fact that the mother worked so close to a school. He said in contrast the father cannot provide this.
The maternal grandfather was asked if he considered the father to be important and he answered:
“yes most definitely and we encourage X all the time”.

He was asked if he considered his family more important than the fathers and he said:
“how can you measure, both parents are equally important and that is why we encourage X to see and speak with his father all the time.”

He was asked how do you encourage him and he stated:
“we encourage him to tell us what he did with his father and when he does we say that’s fantastic and if he is sad after spending time with his father we get worried and say next time will be better I promise that we never talk badly about the father to him.”

The maternal grandfather’s evidence was persuasive. I was left with the view that he would encourage X’s relationship with his father and that he would continue to foster that relationship as he considered the father very important in X’s life.

Ms W

The maternal grandmother gave evidence and informed the court that she was a qualified (occupation omitted) with approximately 30 years’ experience.
She informed the Court that she would retire at the end of 2015 and that she should be available to assist in X’s care as a result whenever required.
She gave evidence that she believed the father had a different concept of family than she did. She believed the father to be fairly superficial. Her evidence continues that notwithstanding those aspects of the father, she did her best to accept the father.
Her evidence was to the effect that she had been involved in X’s life since the moment he was born.
She gave evidence that she believed the father had made a negative impact on the mother’s mental health. She continued in her evidence to say that she encouraged the mother after separation to get a referral to a Psychologist. Her evidence was to the effect that after seeing the Consultant Psychiatrist her mood began to stabilise and lift.
The maternal grandmother conceded that she never particularly liked the father although she always did her best to support him and the mother. Her evidence was that as Mr Mansell is X’s father he is important to X and that, therefore, she and the maternal grandfather have a strict rule in place that no one is allowed to talk against Mr Mansell in their presence and this includes X. She gave evidence of encouraging X to talk with his father on the telephone at times when X says he does not wish to.
The maternal grandmother was cross examined as to her involvement in the telephone conversations between X and his father.
She conceded that she was present and that at times another child, who is often loud, is also present. It was quite clear in my view that X was not afforded privacy during telephone calls between he and his father when he is present in the maternal grandparents home.
The maternal grandmother under cross examination again gave evidence that she thought the relationship between X and his father was very important.
The maternal grandmother’s evidence was persuasive. I was satisfied that she would not only support X’s relationship with his father but that she would facilitate and encourage it.

The family report

The family report writer, Mr P provided a report dated 10 August 2015.
He interviewed the parties and also Ms T (check spelling) on 3 August 2015.
Due to X’s age he did not interview X.
Mr P was unable to assess either of the parents as more capable than the other in being the primary carer of X.
He noted that the mother’s extended family supports are ongoing and in close proximity to the mother’s home as is the mothers intended school for a X. It was only for those factors that he would suggest that the child lives with the mother in Sydney.
Mr P was clearly of the view that it would be in X’s best interests for the father to relocate to Sydney and that should he do so continuation of the equal shared time arrangement would also be in his best interests. That evidence is very persuasive although neither parent is willing to relocate in order for a continuation for the equal shared time arrangement to work.
Under cross examination Mr P indicated that the mother’s situation regarding care arrangements for X and noting the close proximity to the maternal family, the mother’s work, and X’s school to the mothers residence, were optimal.
Mr P indicated that he was of the view that X had an equitable relationship with both parents.
He formed the view that both the mother and father would foster and encourage a relationship between X and the other parent.
He conceded that if the Court found that one or the other of the parents might have some difficulty fostering an encouraging relationship problems would flow.
During cross examination Mr P was provided with an update of the evidence relating to the mother’s unilateral decisions around the time of separation and indicated that those things throw some doubt on his recommendations in that it causes some concern in relation to the mother’s capacity to encourage and foster a relationship between X and the father.
He further stated that a lack of truth would be a concerning factor.
He was asked specifically about nightly phone calls between X and the non-residential parent and was of the opinion that daily telephone calls for a child as young as X are not generally good. He indicated that three times a week would be sufficient.
Ms Gillies on behalf of the mother provided the report writer with many incidents of where the father had been found to be misleading in his evidence and the report writer conceded that that aspect about the father was concerning.
Mr P conceded that the reality of the father’s proposal involved big changes for X. He said in relation to the introduction of Ms T that it might demonstrate a lack of insight on behalf of the father.
Mr P went on to say it is always a mistake to introduce partners to children quickly, for a succession of those to occur is not psychologically beneficial to a child and that the fact that the father could not see a problem in this regard indicated that he was not emotionally insightful.
It was put to him that it would be a good thing if X did not have to go through the big changes that flow from the father’s proposal and he was of the opinion that would be so.
Mr P stated that continuity of the maternal family is important and conceded that if the father can travel to Sydney and the mother can’t travel to (omitted), it would be preferable if the child lived in Sydney because his father could visit.

Application of the evidence

It should be said from the outset this Court cannot force either parent to relocate from their current residence. As the High Court held in U v U[3] citizens of this country have a right to live and work where they please (Note: see also AMS v AIS (1999) 199 CLR 160).
[3] [2002] HCA 36, 82.
It was the clear intention of both the mother and father to remain living in their respective homes. Both parents were clear that neither of them would relocate even if the court found that it was in the best interests of X to live in an equal shared time arrangement.
Accordingly I must assess the evidence and weigh it against the relevant considerations pursuant to section 60CC in the context of the current factual matrix.

Section 60CC(2)

Having regard to the evidence of each of the persons cross examined and in particular the persuasive evidence of the family report writer on this issue, I am satisfied that it is in X’s best interests that he would benefit from having a meaningful relationship with both of his parents.
Brown J in Mazorski and Albright[4] provided an interpretation of what is meant by a meaningful relationship as follows:
“[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant”.
[4] (2007) 37 Fam LR 518
The full Court in McCall and Clarke[5] accepted that interpretation as appropriate. The Full Court also stated that the preferred interpretation of section 60CC(2) (a) is the “prospective approach”.
[5] [2009] FamCAFC 92, 27.
I must therefore determine how orders can be framed to ensure that X has a meaningful relationship with both parents.
There is no evidence before me relating to either the mother’s mental health or use of drugs that satisfies me that X is in need of protection from physical or psychological harm from being subjected to, or exposed to, abuse or neglect in the mother’s home.
To the extent that the father’s anger management was raised I am similarly satisfied that there is no need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in the father’s home.

Section 60CC(3)

The views of X were not obtained by the family report writer. In any event, having regard to X’s age I would not be persuaded by any view he expressed.
I am satisfied that X has a close, loving and secure relationship with both of his parents and furthermore with members of the maternal family including, at least, the maternal grandparents and his cousins.
Having considered all of the relevant evidence before me I am satisfied that both parents have taken every opportunity to participate in making decisions about major long term issues in relation to X, to spend time with X and to communicate with X. Indeed both parents have made unilateral decisions regarding the major long-term issues relating to X and did so in the context of this litigation.
No evidence was provided in relation to sub paragraph (ca) and accordingly the fulfilment of the parent’s obligations to maintain the child is not an issue.
It is the likely effect of the changes that must flow from the Orders that each parent seeks that is the most determinative of this matter.
I have set out previously the changes to X’s circumstances that would flow from each of the parent’s proposals.
I am satisfied that X will miss living with each of his parents in an equal time arrangement and that there will be a period of adjustment that flows from an order that results in X’s living predominantly with one parent and spending substantial and significant time with the other parent.
I am of the view that X will need as much stability in his circumstances that can be facilitated having regard to the current living arrangements of each of his parents.
The father proposes many changes for X in the event that this court orders that X live with him predominantly.
I find that the father lacks insight into the emotional needs of X from time to time and that he does not, as a result, understand the potential for X to be significantly unsettled if he were placed in a situation where he would be exposed to so many changes.
The mother’s proposal effectively requires X to come to terms with not living with his father fifty percent of the time and not seeing his friends from preschool in (omitted) fifty percent of the time.
The mother’s proposal, however, will provide stability in my view because X will be surrounded by the maternal family with whom he is closely bonded.
I am satisfied that the mother and the maternal grandmother and grandfather are aware of the difficulties that X might face as a result of living with his mother predominantly and that they have the requisite insight to assist X in coping with this change.
There will be a practical difficulty and potentially further expense for either parent spending time with X on either proposal.
The father was at pains to convince the Court that he has flexibility around his employment. The father also pointed out that he must travel to capital cities whilst performing duties with his current employer.
I am satisfied that the father does have some flexibility with regards to his employment and that he will have more opportunity to spend time with X in Sydney than X’s mother would have to spend time with X in (omitted) during the week.
I note that the family report writer found it difficult to measure any difference in either of the parent’s capacity to provide for the needs of X including his emotional and intellectual needs.
Obviously I was in a position to hear the evidence and assess the witnesses as they were cross-examined and after doing so, formed the view that the mother had a greater capacity to provide for the needs of X particularly in relation to his emotional needs.
There was one aspect of the father’s lifestyle which raised some concerns. That was in relation to the father entering into a series of relationships very shortly after separation and more importantly exposing X to these relationships after a very short period of time.
I note that the father’s current partner, after only having been in a relationship for approximately three months with the father, attended upon the family report writer as both she and the father considered that she would be a significant person in X’s life after such a short period of time.
The relationship with Ms T is untested in relation to both she and the father and her son living together. In those circumstances the Court could not be satisfied that there is certainty in relation to X’s future living arrangements in the father’s home particularly having regard to the father’s lifestyle with regards to his relationships post separation.
Subparagraph (h) is not relevant to these proceedings.
As I have previously stated, I was concerned that the father at times showed a poor attitude to the child and to the responsibilities of parenthood particularly in those circumstances where I have found that he placed his interests above those of X.
Whilst the mother complained of some family violence in the former matrimonial home, on the evidence before the Court I cannot make a finding as to whether there was family violence or that X was exposed to the family violence the mother complained of. Furthermore I cannot make a finding as to whether X was affected in any way.
I must give consideration to making Orders that are least likely to lead to the institution of further proceedings. I am of the view that the Orders that I propose to make will provide X with the stability that will see him adjust as best as he can. I am of the view that if X copes with the change necessary as a result of these Orders it is less likely that further proceedings will be necessary.

Section 61DA

Both parents seek orders for equal shared parental responsibility.
Neither parent seeks to persuade me that the presumption does not apply. I am not satisfied that there is any evidence of abuse of the child or family violence and accordingly the presumption must apply.
Neither party sought to provide evidence or persuade me that the presumption should be rebutted because it would not be in the best interests of X for the child’s parents to have equal shared parental responsibility for the child. Accordingly the presumption is not rebutted.
I propose to make an order for the parents to have equal shared parental responsibility.

Section 65DAA

As I intend to make an Order for equal shared parental responsibility the provisions of section 65DAA must be considered.
The High Court in MRR v GR[6] stated that it was imperative that a Court consider both whether it was in the best interests of the child and whether it was reasonably practicable for the child to spend equal time with each parent and if the Court were not so satisfied that it must then consider both whether it was in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of its parents.
[6] [2010] HCA 4.
There is sufficient evidence before me to be satisfied that it is in X’s best interests for him to live in an equal time arrangement with both of his parents in circumstances where his parents were living in close proximity.

X’s parents do not live in close proximity. Neither parent intends to relocate in order to be closer to the other parent. The distance between the parents respective homes make it onerous for X to live in an equal time arrangement.
If X were to live in an equal time arrangement he would be required to attend two different schools. This could not be in X’s best interests.
The distance between his parents homes’ also make it impractical for X to live in an equal time arrangement.
The parents currently have very poor communication with each other and this would cause difficulties resolving differences that might arise in implementing an arrangement of that kind.
I am satisfied that there would be a negative impact upon X should I order that he live in an equal time arrangement.
For those reasons I am satisfied that it is neither in X’s best interests or reasonably practicable for X to live in an equal time arrangement with each of his parents.
I am satisfied on the evidence before me that it is in X’s best interests for him to spend substantial and significant time with each of his parents.
I am satisfied that the mother’s proposal will allow for X to spend substantial and significant time with his father during the week.
The father’s proposal does not allow for X to spend time with his mother during the week.
I am satisfied that the father, due to the flexibility in his employment, could spend time with X during the week whereas I am not satisfied, having regard to the mother’s employment, that she could spend time with X during the week.
I acknowledge that there will be some cost involved if the father were to make himself available during the week for X to spend time with him. I also acknowledge that the father must travel to Sydney due to his work commitments and that there will be a cost involved in that travel in any event.
I am satisfied that the father would not be put to further cost in making himself available for X if he chose to spend time with X when he would in any event be in Sydney.
I am satisfied that the Order that the mother proposes in relation to Wednesday evening contact can be made and that the parents current poor communication will not interfere with arrangements for mid week contact if orders were made consistent with the mother’s proposal.
Accordingly I am satisfied that it is both in X’s best interests and reasonably practicable for X to spend substantial and significant time with each of his parents.
Accordingly, for the reasons set out above, I find that the orders I have made are in the best interests of X.

I certify that the preceding two hundred and sixty five (265) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 28 January 2016

[2016] FCCA 134

29 January 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction