Merritt and Merritt - [2012] FMCAfam 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MERRITT & MERRITT

[2012] FMCAfam 314

FAMILY LAW – Parenting – presumption of equal shared parental responsibility – applicable principles in determining whether to order an equal time arrangement or an order for substantial and significant time – child’s best interests.

Family Law Act 1975, ss.60 CC, 61DA, 65DAA

MRR v GR [2010] HCA 4

Applicant:

MS MERRITT

Respondent:

MR MERRITT

File Number:

PAC 947 of 2011

Judgment of:

Henderson FM

Hearing dates:

13 February 2012, 14 February 2012,
15 February 2012 and 5 March 2012

Date of Last Submission:

5 March 2012

Delivered at:

Parramatta

Delivered on:

5 April 2012

REPRESENTATION

Counsel for the Applicant:

Ms Haughton

Solicitors for the Applicant:

Ian Harper & Co

Counsel for the Respondent:

Ms Doust

Solicitors for the Respondent:

Baker LJW Lawyers

ORDERS

That the child, [X], born [in] 2007 (hereinafter “the child”), shall live with the father each alternate week from the cessation of school Thursday to the commencement of school the following Tuesday morning, commencing the first Thursday after these orders are made.
The child to live with the mother at all other times.
The parents to have equal shared parental responsibility for the child.
The child to spend one half of each school term holiday period with each parent and no more than two (2) weeks at any one time in the January school holiday period, or otherwise agreed.
The parents are to spend time with the child, at all other times as agreed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 947 of 2011

MS MERRITT

Applicant

And

MR MERRITT

Respondent

REASONS FOR JUDGMENT

This matter concerns the parenting arrangements for the child, [X], born [in] 2007 (hereinafter “the child”).
At the final hearing of the matter, Ms Haughton of Counsel represented the mother and Ms Doust of Counsel represented the father.
[X] has been living in an equal time arrangement with his parents for almost three years now since his parent’s separation in April 2009.
The mother seeks that the child primarily live with her and spend significant and substantial time with his father.
The father seeks a continuity of equal time.
A Family Report was prepared by Mr G, Family Consultant and this was marked Court Exhibit 1 at the hearing. In this report, Mr G said at paragraph 49:
The overall impression was that [X] is an emotionally well adjusted four and a half year old, with excellent verbal ability, and sound motor skills. On the basis of the observations, one would conclude that his relationship with each parent is similarly secure.
Thus, [X] is a most fortunate child in that he is an intelligent and emotionally robust child. He has received better than average parenting from his parents, even though they are separated and the separation was traumatic for the parents, particularly for the father.
The documents I read for the hearing were as follows.
For the Mother
a)Initiating Application, filed 4 March 2011;
b)Affidavit of Ms Merritt, filed 25 November 2011;
c)Affidavit of the mother’s partner, Mr S, filed 25 November 2011; and
d)Affidavit of the maternal grandmother, Ms B, filed 25 November 2011.
The Mother’s Exhibits
Exhibit 1, a document entitled Response to Mr Merritt’s Affidavit. This document was little more than a stream of consciousness. The document was not in proper form and traversed matters dealt with in cross-examination and I place no reliance upon its contents.
Exhibit 2, a document entitled Response to Mrs T Merritt, Affidavit from Ms B. This document fell into the same category as mother’s exhibit 1, and I place no reliance upon its contents.
Exhibit 3, a letter from the mother’s employer, [organisation omitted], indicating that the mother has some flexibility in her work arrangements.
The mother, her partner and the maternal grandmother were

cross-examined.
For the father I read the following ;
a)Response, filed 8 April 2011;
b)Affidavit of Mr Merritt, filed 22 December 2011;
c)Affidavit of the paternal aunt, Ms R Merritt, filed 22 December 2011; and
d)
Affidavit of the paternal grandmother, Mrs T Merritt filed

22 December 2011.
The father, his sister and mother were all cross examined.
Mr G’s, Family Report dated 11 September 2011, was marked Court Exhibit 1.
Mr G was cross-examined in person.

ORDERS SOUGHT

When the mother commenced the proceedings her application was that the child live with her and spend alternate weekends from

5:00pm Friday until 4:00pm Sunday with his father and one other night during the week.
The mother’s initial application was amended at the commencement of the hearing to the child spending time with his father until Monday morning each alternate week and alternate Wednesdays from 5:00pm to the commencement of school the following day.
The response filed by the father was a mirror image of the mother’s initial application.
At the commencement of the hearing, and throughout the hearing, the father maintained that the equal time arrangement should continue. He was content for the Court to determine the precise arrangement of time. This was a markedly different position to that contained in his response.

SHORT CHRONOLOGY

The parties commenced co-habitation in 2002 and married [in] 2005.
[X] was born [in] 2007.
The parents separated in about April 2009, with the mother and child remaining at the former rented matrimonial home and the father going to live with his parents.
The parties share the care of [X], with changeovers to be Wednesdays and Saturday afternoon or Sunday.

EVIDENCE

At the family consultant interview, which took place on 29 August 2011, the father told Mr G that as he and the mother had been able to reach an agreement for shared care and it was important for [X] to maintain a relationship with both parents that [X] would benefit from a continuation of the current arrangements. .
In the father’s view, any significant change either way could have an unsettling effect on the boy. This is reported at paragraph 29 of Mr G’s report.
The father did not agree the format of time needed to change once [X] commenced school, as he intended maintaining his present level of commitment to his son. He further believed that the parents lived sufficiently close to each other to practically carry out an equal time arrangement. This is also reported at paragraph 29 of Mr G’s report.
Yet, in his affidavit which he prepared himself and filed in December 2011, some months after the family report interview, and at paragraph 42, he said:
I am concerned that Ms Merritt states she will be only working school hours when [X] starts, Ms Merritt has constantly told me how she is broke and is counting her dollars each week to the last 5c, I do not see how she will be able to afford to live with a reduced income if she cuts her working week to only 30 Hours, I believe Ms Merritt will solely rely on her Parents to pick [X] up from school and care for him until she finishes work at 5pm.
He states at paragraph 43:
If [X] lives with me during the week I will take [X] to school on my way to work, I will pick [X] up from school and he will stay with me at my [workplace] for the hour and a half until I close the doors at 5pm. I have an office and a waiting room in which [X] can watch TV, do his homework or use the computer. If in the event I cannot pick up [X] for any reason my mother will pick him up.
He states at paragraph 52:
I have repeatedly brought to the attention of Ms Merritt the necessity of securing a more stable routine for [X] particularly when he starts primary school…
This is very different from what he told Mr G.
However, the comments at paragraph 52 of his affidavit are perceptive as to the absolute necessity for routine and stability for [X] once school commenced. There is a vast difference to the appropriate and realistic care arrangements for a child when they are at pre-school and when they commence school.
[X]’s care has been shared to date between his parents, grandparents and his pre-school.
The commencement of school is the time when a child’s life takes on a new meaning and a child commences a life independent to that of his mother and father. He will commence to play sport at some time. He will have his own friends; attend birthday parties and have a life separate and distinct to that of his parents over time. The father was rightly concerned that [X] be in a stable routine. He continued at paragraph 52:
The last time I spoke to Ms Merritt about this she shrugged it off and said it’s a year away we don’t know what our situation is going to be. I believe [X] would greatly benefit from a stable residence and a stable routine, not withstanding that the current routine is not stable but that a routine with longer periods of residence would be better for [X].
At paragraph 53:
I would like [X] to live with me primarily so as to ensure he is completing his schoolwork and to monitor his development especially in this area. Owning my own business, I have the flexibility to look after [X] personally before and after school without having to put him in before and after school care.
That alleged comment and behaviour of the mother, as described by the father in paragraph 52 is inconsistent with the mother bringing an application to the Court in March 2011 to have the regime of time changed to something she regarded as more appropriate when [X] commenced school.
The father’s comment to Mr G that he did not think the regime of time should be changed even when [X] commenced school is inconsistent with the father’s position as set out in his affidavit.
The father went on to say at paragraph 55:
I believe I am more capable of raising [X] as I do not present any distractions that would prevent me from caring for [X]. Ms Merritt has a great fondness for many animals and this I believe is detrimental to her ability to care for [X] as it takes up a lot of Ms Merritt’s time.
At paragraph 58:
I believe and expect that [X] should have a meaningful relationship with both his mother and his father. I believe it would be in [X]’s best interest and this would be best accompanied by [X] having a stable home with me and spending time with Ms Merritt.
At paragraph 72:
I also think it would assist Ms Merritt to attend an alcoholic’s anonymous class.
At paragraph 75:
I am quite concerned that Ms Merritt has sought parenting orders of this nature and I believe if they are granted that Ms Merritt would not ensure [X] and I maintain a full and meaningful relationship. On occasions over the past 2 years she has taken it upon herself to exclude me from important first activities with [X]. The particular activities I am referring to are of [X]’s first time visiting [the] Zoo. Ms Merritt and I had previously agreed that such events should be shared and that [X] should have memories of both his mother and father at such important events.
Ms Merritt took it upon herself to take [X] to [the] Zoo with her mother. I was not told this until they had returned on that day. Ms Merritt has also done this in the same fashion with the [the] Aquarium and the Wild Life [Park]. If I have ever decided to take [X] on any new experience or the like I have always extended an invitation to Ms Merritt to join us. Ms Merritt has always declined the invitation.
Paragraph 75 is a rather rose-coloured and somewhat immature view of the world when parents are separated and have been since 2009.
At paragraphs 77 and 79:
…Ms Merritt on two separate occasions over the past two years has admitted to me she had attempted to commit suicide.
[X] constantly tells me he does not like Mr S and that he is a lazzy bones and sleeps all the time and he doesn’t like him because he calls his mum a “cat” and it makes his mum sad and angry.
None of this concerning behaviour or concerns of the father as set out in his affidavit were told to Mr G, yet all happened before the report was prepared.
Of even greater concern for me, is that in cross-examination, the father put something different to that in his affidavit.
In cross-examination, the father said he wanted things to stay the same. He agreed that perhaps there should be a different regime of time, but stated that the child was to continue in an equal time arrangement.
This is not what the father’s affidavit so clearly sets out, namely that the child should primarily live with him and spend time with his mother. Rather, he reverted to Mr G’s recommendations of equal time under cross-examination.
Either, I find that at the report writing interview the father was putting to Mr G a position he did not think was in the child’s best interests at that time or, his affidavit is a document I cannot rely upon at any level or, thirdly that the father will say what he thinks will achieve his end at any given time.
It was submitted by the father’s Counsel that the contents of the affidavit was a form of “one-upmanship” and could be explained on the basis that the father was scared and worried that the mother’s initial application would succeed and he would be spending less time with the child. That may be correct. If it is, it supports the mother’s clear position that the father is immature, sees his needs and the child’s needs as the same and is still wishing to get back with her.
Parents who play the one-upmanship game do not put children’s needs first, are immature and can pose a risk to a child as the decisions they make may be self centred and not child centred.
The father either tells persons in authority what he thinks they want, or need to hear, or makes decisions that are not child focused but self-focused. Either finding is contradictory to the father’s position, that he and not the mother is the most stable and best parent or that he and the mother can share parenting. There is however, even more evidence to support the error of the father’s position and opinion.
The mother’s position that [X]’s care regime needed to change once [X] commenced school has not changed and has remained constant. Her position that [X] have a weekend with each parent, spend time with each parent mid-week, together with time in the holidays, has not changed in principle. The amount or structure of the time the mother sought may have changed to suit the child’s needs or to take account of Mr G’s learned opinion, but the principle has not changed. This is in stark contrast to the father’s chopping and changing of his position.
There is a mature and child focused approach demonstrated by the mother both in her written material and her oral evidence. This was lacking from the father who was emotional, ready to defend his parenting role at all times and at other times simply lost.
After Mr G gave his evidence and opined that if there was to be a change, he believed it was more appropriate for [X] to have five nights in a stretch in one parent’s care, the mother accepted his learned position and again acting in [X]’s interests amended her orders to reflect this recommendation. The mother then said [X] should be in his dad’s care from the Thursday after school to the commencement of school the following Tuesday morning. Otherwise, the mother’s position remained constant in this matter.
The mother gave evidence that on or around 11 February 2012, she had discussed with [X] going to the [omitted Caves]. [X] became upset and she asked him why. He said he had spoken to his dad about going to the [omitted Caves] and said “daddy got very upset”, because he said that he was going to take him. [X] said, “and then I knew I shouldn’t have said anything”. [1]
[1] Transcript of proceedings, 13 February 2012, page 23.
I am unable to make a positive finding that the father became upset or that [X] said those words. However, this described reaction and behaviour of the father is consistent with paragraph 75 of his affidavit, where he says:
On occasions over the last two years she has taken it upon herself to exclude me from important first visit activities with [X]. The particular activities I am referring to are of [X]’s first time visiting [the] Zoo. Ms Merritt and I had previously agreed that such events should be shared and that [X] should have memories of both his mother and father at such important events. Ms Merritt took it upon herself to take [X] to [the] Zoo with her mother. I was not told this until they had returned on that day. Ms Merritt has also done this in the same fashion with the [the] Aquarium and the Wild Life [Park]. If I have ever decided to take [X] on any new experience or the like I have always extended an invitation to Ms Merritt to join us. Ms Merritt has always declined the invitation.
Faced with this evidence from the father’s own material, on balance, I accept the father did become upset when [omitted Caves] was mentioned by [X]. The father denied this in cross-examination and said he did not become upset, but told [X] he was planning to take him to [omitted Caves]. Even this comment is likely to have upset the child and indicates the father has little idea of what it means on a day to day basis to parent a child when you are separated.
It is a naive and immature belief that the sharing of these events is possible and in [X]’s best interests, when the separation was bitter, nasty and hurtful for the father and his family. The paternal family are yet, if ever, to recover from the separation.
I find favour with the mother’s version of events as they are consistent with the father’s belief and behaviours on this issue.
The mother has worked in her occupation in a [omitted] business at [location omitted], for approximately seven years. She is the [occupation omitted]. There are nine people including casual staff and it is a full-time job. The mother has engaged in consistent full-time work since [X] was ten (10) months of age. The mother is a valued employee.
The father started up his own [omitted] business during the marriage. Each parent has worked steadily and full time and have only been able to do so due to the support of each of their parents. Both the maternal and paternal family have been significantly involved in the child’s care.
Although, much was sought to be made against each parent in

cross-examination of their inability to take time off work and pick [X] up from school needing then to minimise their work hours this did not weigh heavily on my mind for the following reason.
In evidence, I asked each grandmother a question to the effect of “will you still be available to assist in the care of your grandchild?” and each responded “yes”.
I accept this has and will always been the case, and that [X] is accustomed to being cared for by these two families. I accept that if [X] is in his dad’s care and he cannot collect him, his mother or father will do so. Similarly for the mother, if [X] is in her care and she cannot get to him, her parents will assist her. I attach no weight to this issue in so far as [X]’s best interests are concerned.
In relation to the father’s evidence, he states at paragraph 53 of his affidavit:
I would like [X] to live with me primarily so as to ensure he is completing his schoolwork and monitor his development especially in this area. Owning my own business, I have the flexibility to look after [X] personally before and after school without having to put him in before and after school car.
This indicates a lack of understanding of caring for a child.

Mr G said when commenting on this “flexibility” that it would be far better for [X] to be cared for by an adult available to him after school and before school, rather than in a room at a [workplace]. Again, the father’s criticism of the mother were not made out and reflected poorly on him and not her.
What I do attach weight to is this; I am satisfied that the mother can work around [X]’s care if and when needed. Exhibit 3, a letter from the mother’s employer, tells me this:
Throughout her employment I have always been very flexible with Ms Merritt’s hours when it comes to [X] and understand now he is attending primary school her priority will be to ensure [X] is taken care of before and after school therefore her work hours will vary according to [X]’s needs.

I do not accept the father’s evidence, that he will now vary his working hours to satisfy his child’s needs. He said in his affidavit and to Mr G that one of the reasons the relationship broke down is that all he did was work. It is apparent he has continued to devote himself to his work, even when [X] is in his care, as although [X] lives equal time with his parents, his father has never spent a full weekend with him.
[X]’s time with his father always commences at 4.00pm Saturday or Sunday morning, to enable the father to work every Saturday. This is not a criticism, merely an accurate picture of how the reality is for [X] and his mother.
[X] and the mother, with the help of [X]’s paternal grandparents, have ensured that the equal time arrangement has fitted around the father’s work as a sole trader.
That is contrary to the best interests of a child being the paramount consideration and thus the law.
Thus, even though over the intervening three years since separation the father has had ample opportunity to vary his working hours to ensure [X] spent a whole weekend with each parent, he has not and the mother has accommodated this.
The father said he has to work, as he had debts to pay off and he needed to earn an income. He is very fixed on saving up sufficient money to buy a house and is currently living with his parents, and these are all worthy goals.
However, he simply did not tell the truth to Mr G when this very issue was raised. Mr G stated in paragraph 16 and 28 of his report:
Mr Merritt agreed that he spent much time away from the family home during the marriage, on account of business demands. Under financial pressure brought about by building up a sole trader [omitted] [workplace], he said he usually did not get home till late evening. This caused considerable conflict with his wife, but Mr Merritt could see no alternative at the time.
Mr Merritt said he had radically altered his working arrangements since the separation. He had obtained assistance at work and restricted his input to daylight hours so he could maximise his time with [X]. It was intended this would be maintained indefinitely.
In his cross-examination, the father indicated that the assistance he receives at work is his father sometimes attending his workplace. The father has not employed anyone. He has not varied his work arrangements. He certainly may come home a little earlier and may not work all nights when [X] is with him, but he works as much as he can to pay off his debts. That is a priority, and this Court is not being critical of him, it is the reality. However, he has not repaid a loan of $15,000 to the wife’s father, which was advanced when he set up his business.
In his affidavit the father says at paragraph 12:
It was on rare occasions that I would work through the night to keep up with work and financial demands, There has never been a time where I have spent more than two consecutive nights working. When I did work late Ms Merritt was very unsupportive and would become irrational and accuse me of Infidelity, I would try to explain our situation and when I asked Ms Merritt where her wages have gone as Ms Merritt did not contribute at all to any household expenses Ms Merritt would say, “I have to buy [items omitted] and I don’t know I don’t write it all down”. Ms Merritt has on one occasion cooked a meal and brought it to the [workplace].
At Paragraph 10, he states:
I own my own business, [business omitted], I am a sole trader and I do not employ any staff. I work 5 days a week and Saturdays I leave as an optional work day.
That is not what he told Mr G. The father considerably gilded the lily about his past failures as a parent and husband to Mr G and his affidavit speaks the truth.
For the father to now assert, as he did, that as he is a sole trader and works for himself yet has flexible working hours could not be further from the truth.
I accept that he is a sole trader. I accept that to maintain and grow his business, he must be available to do work when required by the public. Thus, although I would not have criticised the father for maintaining his work hours when [X] is in his care as he has the assistance of his parents, I will criticise him for not being truthful to Mr G. Further, for the father to criticise the mother and say he did not believe she would be able to leave work is breathtaking when the evidence is he is the one unable to leave work not the mother.
A real concern for me was the dispute about the school the child would attend. My brother, Federal Magistrate Dunkley made directions on 11 April 2011 that the parents were to file material and information in relation to [X]’s schooling for the final hearing, which had been set down for 12 and 13 December 2011. The parents were to obtain enrolment forms from [School A], which was the mother’s preferred school and [School B], which was the father’s preferred school.
Unfortunately, the matter was not reached in December 2011 and was stood over to 13, 14 and 15 February 2012 and then the matter being part-heard concluded on 5 March 2012. Consequently, the schooling issue was not determined in 2011.The mother had wished for [X] to attend [School A], being the local school near her home and the father wished for [X] to attend a private Catholic School.
I took exception to the fact that this impasse had meant that [X] missed out on what is a very important day for all children; the first day at school. Despite what his mother and father may have thought, whether he attended [School B] or [School A] meant little to him. What mattered to him was that he, like all the other little five year olds, attended his first day at school, got to know the teachers, got to know the school, got to know the other children and got to know his routine. That has been denied to him by his parents.
His parents should have reached an agreement, and the mother could have agreed for him to go to [School B], so he at least attended a school. However, the father knew that the mother did not agree to the child attending a Catholic school. In those circumstances, for a submission to be made by his Counsel, that the mother should have consented to [X] attending a Catholic school, and as she did not it was permissible for the father to hold out for what he wanted is an untenable submission.
If the father was putting [X]’s needs first in the knowledge of the mother’s attitudes to a Catholic school, then he should have relented, and allowed his son the experience of his first day at school with all the other first time children. The focus was on the father’s needs, not the child’s demonstrating an infantile approach to parenting.
Happily, [X] commenced his first year of school at [School A], the week of the hearing, by agreement between his parents.
The father lamented in his affidavit that the mother did not provide the child with a stable routine in contrast to him. Those criticisms were not made out and the mother was not touched in cross-examination concerning her appropriate care for the child or the routine she has in place when he is in her care, such as bed time and the like.
The father’s evidence on this issue was significantly flawed. The mother raised a concern that [X] was tired on a Thursday after being at his dads on Wednesday. She said the father permitted the child to watch a show called [television program omitted], which is on a Wednesday night at 8.30pm. If the child is watching that show and unless it had been pre-recorded by video, which the father said was not the case, then [X] was not going to bed at 7.30pm as his father says he always did.
Mr G stated at paragraph 26 of his report:
He [Mr Merritt] felt Ms Merritt’s stated concerns about aspects of his parenting were unjustified. He said he always supervised [X] appropriately, and set a 7.30pm bedtime curfew. Denying that [X] usually slept in his bed, Mr Merritt stated the boy had his own bedroom. He was aware of the mother’s attitude towards a certain TV programme, but Mr Merritt considered it suitable for [X], saying it was rated PG, and [X] loved it.
Mr G said he did not explore with the father what time the TV program was on and believed that the concern about the TV program was that it was unsuitable and that the father really took objection to this. Mr G said he got the impression that the child had watched the show a few times.
The father during cross-examination stated:
The only time he has ever seen [television program omitted] is if he goes to bed and comes back out again repeatedly saying, “I can’t sleep, I’m scared,” makes an excuse, he is allowed to lay with me on the lounge and I would be watching [television program omitted]. Within 15 minutes of him laying with me on the lounge he would be asleep and I would put him in his bed.[2]
[2] Transcript of Proceedings, 14 February 2012, page 182.
As night follows day, if the child is watching this television program at 8.30pm, he is not going to bed at 7.30pm.
The mother says that [X] comes back from his dad’s place tired. The mother is concerned that the father is unable to set the same boundaries and routines she can and she used this television show as an example.
The father’s affidavit at paragraph 73 reads:
[X] has got a regimented bedtime routine. At no time has [X] ever been allowed to watch any sort of television show which is not appropriate for his age.
That is incorrect. [X] does not have a regimented bed time. [X] has been allowed to watch a show his mother believes is inappropriate and a show that the censors of this country believe is inappropriate for a five year old to watch.
This disagreement highlights the poor communication between the parties. It shows a lack of understanding from the father’s point of view of the sensibilities that the mother may have to particular shows. Further, given that the mother reports that the child is tired, I accept that there have been occasions where [X] has been allowed to stay up and that his regime and bed time is not 7.30pm at his father’s house.
The mother said the Sunday night before the hearing, she had rung to speak to [X]; it was 8.00pm and he was putting his bike away. I am satisfied the 7.30pm bed regime does not exist in the father’s home, as much as he might like to think it does and it extraordinary, in the light of this evidence that the father maintained that he had a strict 7.30pm bed time for the child.
I accept the mother’s concerns that at his father’s home, [X] is not in bed by 7.30pm as the father asserts.
The mother ensures that [X] speaks to his dad and the paternal family every night he is in her care. They speak, to use her words for “ages”.
This is not the case in his father’s home. When [X] is with his dad, if the mother does speak to him, it is a short conversation. The mother’s concerns were not that she believes the paternal family is shortening [X]’s telephone time, but that [X] does not feel comfortable talking to his mother or about his mother when he is in his father’s care.
The mother believes there is a negative view of her in the paternal family’s household and this raises concerns for her of [X] continuing in an equal time regime. This is a very significant and potentially harmful outcome for [X]’s emotional health if I accept the mother’s concerns.
Despite Ms Doust’s excellent submissions that I could not make such a finding; I will do so on the evidence that this negativity exists and is conveyed to [X]. Perhaps it is not intentionally conveyed, but it is happening for the following reasons:
[X]’s paternal aunt, Ms R Merritt, states at paragraph 13 of her affidavit:
[X] is very happy and content living with his father and our family. He is very well spoken. He has rules and abides by them. We all sit down every evening and eat dinner together and share our day. We say prayers before dinner to say thanks and [X] very much enjoys this. [X] does have a few communication problems when it comes to telling us what has happened at his mother’s on a few occasions he will start telling us something that has happened at his mother’s house and then he would suddenly stop himself. We would ask him why has he stopped, and he would say, “it’s a secret”. It concerns me a great deal as in our house we want [X] to feel as open as possible.
The mother said at paragraph 56 of her affidavit that the child came back and said to her words to the effect of “poppy is angry with you”. It is clear that the paternal grandfather was mortified by the behaviour of his daughter-in-law. It is the paternal family’s case that the mother was having an affair with the father’s best friend during their marriage and that she hurt them, hurt their son and breached the confidences and trusts that the family had in her. The paternal family all have a very negative attitude towards the mother, whether they accept that they do or not, and this comes through clearly in their affidavit material.
I am not the thought police or the morals police and adults are free to believe what they wish. Where I take issue is, if the negative attitude leaks through to a child. The issue for me is the consequences of adult behaviours upon their children.
During the hearing, the one person whose name came up again and again as having a negative attitude towards the mother and which the child has picked up on is the paternal grandfather. He was not involved in the family report interview, did not file an affidavit and he did not give evidence.
This is an important omission, as Mr G said of the people he interviewed with [X] being the mother, the mother’s partner, the father and both grandmother’s he was confident that none had said anything negative to the child about the mother. Mr G formed this view on the basis of [X]’s relationship with them and his interaction with them, which was confident, open, and happy.
I accept that evidence, and that the adults at the interview are protecting the child from any negative feelings they may have about either parent. The adults missing were the paternal aunt and the paternal grandfather, and he is the one the mother has concerns about, and her concerns are valid.
Reading from the paternal grandmother’s affidavit which was prepared by her at paragraph 11:
During the early part of Mr Merritt and Ms Merritt’s separation Mr Merritt’s father was friendly with Ms Merritt he had no problems in speaking to her in the hope of reconciliation. It was only when he discovered her affair with Mr S and yet she was still leading Mr Merritt on that my husband was badly hurt and finds it difficult to overcome her lies and be-trail but he never lets his feelings of hurt show in-front of [X] and only speaks kindly of his mother to him.
Mrs T Merritt described that she had seen Ms Merritt hugging and kissing Mr Merritt in the [workplace] during their separation, which led them all to believe there was hope of reconciliation. The paternal families’ dismay at the mother’s conduct is still evident.
[X] is a happy, playful and intelligent child who wants to learn. Both the paternal grandmother and aunt talk about what a wonderful child he is. Yet, nowhere in their affidavits do they credit the mother for this. The affidavits are critical of the mother. They do not speak well of her. They do not say one positive thing about her, and each woman was unable to say positive things about her in evidence. The aunt talks in paragraph 3 and 4 of her affidavit:
...Mr Merritt had invited two of his employees his first year apprentice Mr W and his labourer at the time Mr L they brought a female companion with them. On arrival Ms Merritt was very vindictive, acting very unkindly towards the female guest making remarks to me and other guests.
Later on in the evening after Ms Merritt had a few drinks her remarks became loud and irrational. She was now accusing Mr Merritt of having an affair with this female, she begun screaming at Mr Merritt and telling the girl to get out of her house…
I have no idea when this event occurred but it is not positive. The paternal aunt continued in paragraph 5:
Ms Merritt then continued to scream at Mr Merritt saying he was cheating on her and that she is leaving. She went inside and grabbed [X] who was asleep he would have been one year old at the time and proceeded to put [X] in the car. Ms Merritt was highly intoxicated she strapped [X] in whilst still yelling at Mr Merritt…
The affidavit continues at paragraph 7:
In the morning quite embarrassed of what she had done Ms Merritt had pretended nothing had happened and continued her morning.
In relation to the operation of the household, the aunt said at paragraph 8 and 9 :
During the course of Mr Merritt and Ms Merritt’s marriage I spent a lot of time at their house in [location omitted] and also at Mr Merritt’s [workplace] in [Suburb omitted]. As Ms Merritt was at home with [X] most days I had witnesses countless calls from her during the day getting Mr Merritt to run household errands for her whilst he was at work, for example, doing the grocery after work, bringing home nappies Mr Merritt on many occasions dropped what he was doing at work to attend to her needs.
Mr Merritt working was the only source of income, his business first opened in 2005. He worked the first few years on his own building the business and then once [X] was born he hired an apprentice and labourer. This gave Mr Merritt a little more freedom when it came to his business but being a sole owner he did have to work hard but Ms Merritt and [X] always came first.
There was not one positive thing said about this young mother. Neither, the paternal grandmother nor the aunt could find it in their hearts to say part of the reason [X] is such a wonderful child is because of the excellent parenting he receives from his mother.
When asked why there was nothing positive about the mother each the father, his mother and sister said words to the effect of, “I didn’t say anything bad in there about Ms Merritt” [3] or “well, in an affidavit aren’t you supposed to point out things that concern you”.[4] I could have accepted this, had these adults been able to say something positive about the mother in oral evidence but they could not.
[3] Transcript of proceedings, 15 February 2012, page 222 (Cross-examination of the parental grandmother, Mrs T Merritt).
[4] Transcript of proceedings, 15 February 2012, page 231 (Cross-examination of the paternal aunt, Ms R Merritt).
Further, the paternal grandmother’s affidavit at paragraph 14-15 says:
Mr Merritt prepares [X]’s breakfast there are days when [X] is very hungry and eats it all and other days when he has little appetite and struggles to have a few mouthfuls of cereal or toast.
Several times when I have picked [X] up on Thursday morning from his mothers place of work she has openly said [X] has had no breakfast and given him a packet of twisties. I reassure her that he will get some breakfast.
The evidence was that [X] sometimes eats breakfast when he wakes and sometimes he cannot be fed breakfast. He is not a child that likes to eat breakfast as soon as he wakes up. He needs time to get going, to start his day, and given that the mother knew he was going to his paternal grandmother’s home, it is extraordinary that the grandmother would choose to criticise the mother when the grandmother herself says, “other days he has little appetite and struggles to have a few mouthfuls of cereal or toast”.
The father was devastated by the breakdown of the marriage. That is clear. I spoke to him at some length, as I did with the paternal grandmother, about this. I asked the father if he had been seeking counselling to assist him. It was apparent the mother had determined to emotionally separate from the father some time before she physically left him. Thus, it is not surprising when the father says to Mr G, that although his lengthy work hours had caused considerable conflict with his wife, he could see no alternative. The father said they were living on acres, they had owned a number of horses and other animals which needed to be fed and looked after, a circumstance adding to their financial stress. Mr G reports at paragraph 18:
Despite this situation, Mr Merritt did not see the separation looming, and was surprised when his wife left the marriage. He stated he loved her and did not want to separate, but could not convince her of his genuine intentions. In his opinion, Ms Merritt had entered a relationship with another man.

Mr G states at paragraph 22 of his report:
He [Mr Merritt] told me he still had feelings for Ms Merritt but did not believe this influenced [X]’s arrangements, as he did not discuss the situation with the child. Although the mother maintained the father held a negative attitude towards Mr S, this was not apparent during the interview, as he offered no negative comment of this person, or his relationship with [X].
That evidence is inconsistent with the father’s affidavit at paragraph 79:
[X] constantly tells me he does not like Mr S and that he is a lazzybones and sleeps all the time and he doesn’t like him because he calls mum a “cat” and it makes his mum sad and angry.
At paragraph 29 of the father’s affidavit, he details the following conversation with Mr S.
You are not to touch [X]…If you hurt [X], I will hurt you.
Mr S responded:
I’m not scared of you name a time and a place.
The father went on to say:
You have threatened me before and like the last time I told you like the last time, you know where and when I work. You know where and when I work, come and do your best, but like last time, I’m sure you won’t turn up.
I am unsure as to how this is a child focused approach. Further, I do not know how I reconcile these statements in the father’s affidavit of December 2011 and what he told Mr G in September 2011, other than to say the mother’s assessment is correct and the father is again gilding the lily to make himself look good in Mr G’s eyes.
The father’s affidavit is filled with his regret, hurt and upset at the mother’s leaving and how he felt betrayed by her entering into a relationship with Mr S, a best friend of his and that this happened whilst they were still under the one roof. The fact the father tells Mr G that he had no idea that this separation was looming is itself a very telling statement.
It is clear these parents were not connecting, and due to his excessive work hours the father could not see it. Here, was a young mother at home under financial stress with a young baby, and the father’s response was to work harder.
The father recounts in some detail how he found out about the relationship with Mr S. At paragraph 15 of his affidavit he states:
I became suspicious of Ms Merritt and Mr S’s behaviour approximately a month and a half after Ms Merritt and I separated…
Further, he says at Paragraph 21:
During the relationship we had never discussed separating at all. The arguments that we had were about the amount of time I spent on working…
The father says the mother has a poor recollection of events. I am certain the father is the one who has trouble with recollection and not the mother.
Further the father states as paragraph 35 of his affidavit:
It is no secret that I believe that a Child should grow in a loving family environment and that despite the troubles of the past 2 years I still love Ms Merritt dearly and would not hesitate for a second if the chance arose for us to repair our marriage. Although I have never and would never manipulate [X] and use him as a pawn to facilitate or to convince Ms Merritt into reconciliation, I have had many a discussion with Ms Merritt about the quotes [X] has made to me about what would make him happy and I have asked Ms Merritt is he has said things of the like to her. Ms Merritt’s response has always been one of your putting these things in his head to which I always respond “[X] is a very intelligent boy and has his own thoughts and feelings”. I would never say things like that to him although when he asks me if I would be happy if we all lived together again, I do not lie to my son and answered with a simple, “Yes, mate, I would”.
The father asks for me to accept that he does not raise the topic of reconciliation which is near and dear to his heart with [X] and rather I accept that [X] just comes out with comments such as “Daddy says that we are waiting to get a bigger house so we can all live together again”[5] off his own back.
[5] Affidavit of Ms Merritt, affirmed 24 November 2011, paragraph 35.
Looking at the mother’s affidavit and the father’s affidavit, I accept that on any opportunity he can, the father will raise the issue of he and the mother being back together again with the mother or his son. The father continues to hold a torch for the mother. He told me in his affidavit of December 2011 that he still loves her and would have her back, yet asks me to accept in February 2012, some six weeks after he swore the affidavit that he was over the relationship and he had moved on. I do not see it.
The father raises his adult issues with his child, as I find he would like nothing more than to get back together with the mother.
The mother says at paragraph 35 of her affidavit that [X] has said to her “Do you know what would make me happy? If you, me and Daddy all lived together again”.
I accept what the mother says in paragraph 35 of her affidavit filed on 25 November 2011:
Mr Merritt consistently questions me about getting back together with him…
He does do this. He says so in his affidavit at paragraph 35:
I have had many a discussion with Ms Merritt about the quotes [X] has made to me about what would make him happy…
What the father should be doing is protecting his son and gently but sensitively letting him know that mummy and daddy still love him, but are leading their separate lives. The father cannot do this and has been unable to move on at this point in time.
With a child who is as bright as [X], this is going to cause problems in the future for I do not accept that Mr Merritt is at all over the wife. It will confuse and distress [X] if he cannot accept that his parent’s relationship is over and it will confuse the father’s decision making. The submission, that as he consented to abridge times necessary for the divorce to go ahead on 15 February 2012, does not satisfy me that he does not want to get back with his wife.
He is also very negative of Mr S. At paragraph 37 of her affidavit, the mother said she asked for some help with the costs of preschool, and the father said:
That shows what a loser your boyfriend is. Isn’t he supposed to be earning heaps of money?
And the mother said:
Do you really want me to ask Mr S to pay [X]’s school fees instead of you?
They argued, but no money was received.
There have been times in 2009, shortly after separation when [X] has yelled out, “stop yelling at my mum”.[6] The father has behaved poorly at times, although I accept he does not behave in this manner now and has learned to pull back.
[6] Paragraph 26 of Affidavit of Ms Merritt filed 25 November 2011.
There was a degree of immaturity in the father’s reactions at the hearing, similar to that described by the mother, as he has not recovered from the breakdown of the relationship. In hindsight, the mother may have behaved differently, but I am not the moral police or the thought police. I am tasked to determine the consequences of adult behaviour upon their children, and that is all.
It was an untruth from the father to tell Mr G that he did not have a negative attitude towards Mr S. He does. It was an untruth for the father to tell me in Court that he was now over the mother and did not want to get back together with her when he told Mr G in September he still loved her and told me the same in his affidavit of December 2011.
[X] has been protected by his parents from the marriage breakdown to a significant level. However, he has been exposed to a negative attitude towards the mother in the father’s household. This may be perpetrated by the paternal grandfather. The grandmother tells me so in her affidavit. His aunt tells me so in her affidavit. [X] does not feel comfortable speaking about his mother when he is in their home. This is confirmed by the mother with the short telephone conversations she has with him in his father’s home, in contrast to the long telephone conversations he has with his dad whilst in her home.
[X] has been exposed to his father’s almost overwhelming desire to resume the relationship, and I accept the father does say things to him like, “we are waiting to get a bigger house so we can all live together again”. That is confirmed by the father’s own affidavit evidence, where he tells me he has been most upset during post separation when the mother did not think to call him to share with him events they agreed they would share when together in relation to [X], such as going to [the] Zoo, and the aquarium and wildlife park. That is an extremely immature behaviour for a parent to take, and [X] has been exposed to this.
[X]’s mother has been badly treated by the father. He has written her rude texts. They are attached to his affidavit and hers. He has an exceedingly negative attitude toward Mr S referred to in his own affidavit and yet would not admit this to Mr G. [X] has a very good relationship with Mr S and his father should be pleased with this.
During the mother’s cross-examination, I asked her the following:
So it would be fair to say the separation has caused Mr Merritt to step up to the mark?
A: Yes.[7]
[7] Transcript of proceedings, 13 February 2012, page 62.
This is true. Prior to separation, the father only worked and could not be a hands-on father. This demonstrates the stark difference in the mother’s attitude to the father and the breakdown. She had many positives things to say about the father and his family. The father’s family have not helped him recover, as they have laid the blame for the breakdown on her, when the reality is it was a shared difficulty and sadness for each of them and for [X].
There have been some isolated incidents of poor behaviour since separation, however the one that caused me concern occurred on

18 December 2009 and is described at paragraph 26 of the father’s and mother’s affidavits.
This occurred in the early stages of their separation. The mother said the father behaved poorly, the child witnessed this and became upset as did she. The mother said the father was asking her about her relationship with Mr S when the child was being passed between them. The mother wanted the father to stop as it was not the right time to discuss these matters in front of [X]. The father persisted.
The father’s own affidavit confirms the mother’s version of events but not the version the father put to the Court in cross-examination. He says at paragraph 26 of his affidavit:
…As per usual on this day, my parents would come to drop [X] off. On this day [X] had fallen asleep in the car ride over and my mother had said to me that he hadn’t had a sleep that day so in the best interest of [X] I did not wake him up but removed him still in his baby seat and put him in the waiting room of my business so that he could stay asleep until Ms Merritt arrived to pick him up in 10 minutes. When Ms Merritt arrived I told her [X] was asleep and I asked if we could spend 2 minutes talking about our situation to which she agreed. In this conversation I brought up the topic of her being in a relationship with a friend of mine, Mr S. To this she became very vindictive and nasty in her comments and then picked [X] up still asleep in his seat and strapped him into her car, at this point I was crying and begging Ms Merritt to stop being so standoffish and to please talk. She opened her car door and got in. I was standing at the front of her door leaning over her windshield trying to get some sense out of her when she rolled down the window and yelled at me that I was scaring [X] who had just woken up. She then started her car and drove off.
That is the father’s description of the incident. It describes concerning and poor behaviour by him in the presence of his young child. I have no doubt the father was crying, was preventing the mother from leaving, leaning into her car and harassing her. I have no doubt [X] was crying, that the mother was upset and anxious and that she was somewhat fearful and only wished to get away from the father.
The father then and now has not accepted the separation, and he and his family are blind to this.
Counsel for the father sought to cross-examine the mother on events in 17 June 2010 leading up to the father consenting to an Apprehended Violence Order. The thrust was the mother’s version of events was incorrect. I would not permit this as the father had failed to mention this incident in his material, although he mentioned many others and thus, I took it that he agreed with the mother’s version particularly where he had consented to an Apprehended Violence Order.
On 17 June 2010, the father rang the mother and said, “don’t bring [X]. He does not need to see this”.[8] The mother said the father had threatened to hang himself at his work. The mother did attend the work premises, although she should not have with hindsight. She left the child with the father and attempted to close the door. He blocked her way, reached in and grabbed the keys from the ignition and then took a step backwards. She got out of the vehicle. A balloon came out of the car, and the child ran to get the balloon. Both the parents ran after him, and the father grabbed the balloon and popped it. The child cried. The father took a step backwards and threw the mother’s keys at her which hit [X], who was then standing next to his mother. The child began to cry, and the mother picked him up and comforted him but left him with his father.
[8] Annexure “A” to the Affidavit of Ms Merritt filed 25 November 2011.
The mother received ten calls from the father that day. The mother was most concerned about his comments and the effect on [X] of his fathers’ behaviours, yet he remained with his father or his paternal family despite these concerns.
The father again harasses the mother with constant text messages and on 24 January 2011 and the mother makes a complaint and according to her evidence the father is placed on a good behaviour bond. The mother said in cross-examination that she still receives many text messages from him. Further, she said:
I’ve received numerous phone calls. There was a lot of yelling. He’s still very very angry. But he’s worried about losing a couple of days with his son. I’m worried about his son losing a longer time with his dad, because his dad is being silly. [9]
[9] Transcript of proceedings, 13 February 2012, page 80.
I accept that evidence. It is child-focused, mature and protective of the child.
I am unable to make the same comment in relation to the father’s behaviours and reactions even three years after separation.
The mother was asked if [X] spent only five nights in two weeks with his dad, an arrangement he has not yet experienced, whether he would be able to cope. The mother said she did not think he would panic if it was a few nights different than it is now, but it could not be much less than five nights as he is very attached to his dad and he enjoys his time with him. Again, the mother was able to focus on what was best for [X] and be positive of his strong relationship with his father, in contrast to the father’s comments about the mother.
The mother’s partner, Mr S gave evidence. I found nothing adverse in him, and his evidence was not touched. He is supportive of the mother, has a good relationship with the child and knows he is not the child’s father and does not seek to step into that role. I asked him if [X] spoke about his dad to him. Mr S said:
..The stuff he does with his dad when he is with his dad, the things his dad shows him or takes him to…
Further he said:
If I’m doing something with [X], he says, “I do this with my dad as well”.[10]
[10] Transcript of proceedings, 14 February 2012, page 115.
I contrast this with the paternal aunt’s evidence that, [X] does not speak very much about his mother at their home.
The maternal grandmother is a caring and loving grandmother. Although, she said she is not friends with the maternal family, they get on well for [X]’s sake and she would make whatever order the Court made work for her grandson. She was critical of the father in that she did not think he would get the child to school on time. I found that criticism unfair. He has not had to get him the child to school on time because he has been at preschool. I have no doubt that the father will ensure this child gets to school on time when in his father’s care.
The father endeavoured, unsuccessfully to explain what he meant in paragraph 35 of his affidavit, when he said he still loved Ms Merritt and would have her back. His explanation was that his feelings for Ms Merritt has never got in the way of decisions he has made for [X] and what he meant to say in paragraph 35 was how he felt in the past.
That is not what the affidavit says. The father was at times not responsive to questions and minimised matters when he realised the truth was not going too well for him. The father changed his evidence to Mr G and again to me to try and create a situation that he thought would best preserve his time with his much loved son, who is an ongoing connection to the mother. His feelings for the mother will continue to get in the way of making the best decision for his son, unless he deals with this grief.
The father, ultimately agreed [X]’s care regime would probably need to change as he was now at school and he was content with any arrangement of time, provided it was equal time.
In his oral evidence, he said the mother was a good parent and he had no criticisms of her management of [X]. This is the opposite of his affidavit. In his affidavit he complained the mother did not provide a stable regime for [X], was consumed in caring for her animals to [X]’s detriment and argued that he is better able to ensure his son’s homework is done and provide him with the necessary stability and routine.
There is criticism of the mother in the father’s affidavit, as there is criticism by the mother of the father in her affidavit. The difference is, when the mother was pressed on her criticism she maintained them and unlike the father, did not shy away from them. The mother’s openness and honesty was thrown up in stark relief to the father’s obfuscation and back tracking.
The father was asked for an explanation of the changes to his orders. As already noted he originally sought that [X] live with him primarily and then told Mr G that he believed that the arrangement of equal time should stay the same. He answered;
I was seeking advice off people and I was advised that, you know, I should seek the same in return because I don’t know how these things go. [11]
[11] Transcript of proceedings, 14 February 2012, page 142.
That is not an adult or child focused approach but rather an immature tit for tat approach.
In cross-examination, he was asked:
Did you not have the courage to come to Court and tell the Court what you truly thought the arrangements should be for your son?
A: It’s not a matter of courage, it was a matter of advice.[12]
[12] Transcript of proceedings, 14 February 2012, page 143.
The father had struggled to see that his comments to [X], along the lines of wanting to get back with the mother, were confusing for the child. It is a normal wish for any child that their parents reunite. However, to use this as the father did as an excuse for even discussing such adult matters with the child demonstrated the father’s lack of insight into his sons’ needs and his capacity to protect his son and ensure that his needs do not overbear on [X]’s needs.
During cross-examination, the father gave the following evidence:
Q: At the time you signed this affidavit, you were proposing to seek that [X] live with you primarily?
A: Yes.
Q: And, so, as of the time you signed this affidavit, you believed you were much more capable of caring for [X] than my client?
A: Well, time-wise, yes.
Q: So you believed at the time you signed this affidavit that it was better for [X] having a stable home with somebody and spending time with the other party?
A: Yes.
Q: So what changed between you telling the Family report writer in September that it was in your best interests to leave it as it was and you doing your affidavit, a matter of only a couple of months later?
A: …There is a lot more to it of why I think [X] would be better off living with me. [13]
[13] Transcript of proceedings, 14 February 2012, page 158.

It was put to him that he sought the order that the child primarily live with him to punish the mother or reconcile with her. He said “no”.
I could not divine when this hindsight came to the father. In September 2011 he wanted equal time and in his affidavit of December 2011, the child was to primarily live with him. At the hearing he returned to equal time. I could not understand the factors that had changed the father’s mind.
The father was asked:
Q: Your family certainly don’t have any respect for my client do they?
A: That is very untrue…I don’t know how to say this right. They can hold their own views.
They have their own views but none of that is expressed to [X] or anything of that nature…Ms Merritt is not degraded or anything in front of [X], at all, let alone in the house. We don’t degrade her.[14]
[14] Transcript of proceedings, 14 February 2012, page 159.
Ms Merritt is degraded at times and [X] may well have overheard such degradation unwittingly. This must be correct as the child knows he cannot speak fondly about his mother in his father’s home. The mother is not spoken about at all. [X] is picking up on this negativity.
Exploration of the fathers’ understanding of the possibility of [X] unwittingly overhearing negativity about his mother from his paternal grandfather resulted in this:
And dad will go out or he will go in his boat. [15]
[15] Transcript of proceedings, 14 February 2012, page 162.
However, the father told the Court his dad comes to the [workplace] to help him and that this was the help he told Mr G he had obtained. Whatever the position, the father was not truthful.
The father agreed that he had noticed [X] stops talking about his mother and says words like, “it’s a secret”. He could not join the dots and accept this may be because [X] knows the negative view the father’s family have of his mother.
The father admitted he and his family believed that the mother was telling [X] to keep secrets and the position I put had not occurred to him. I am certain his mother has never said to [X] to keep secrets.
The father has not lodged a tax return since June 2008 which made it difficult for the mother to receive parenting payments for [X]’s benefit until late 2010 and for child support to be assessed. This demonstrates a poor attitude to the responsibilities of supporting your child to the best of your ability and speaks again of immaturity on the father’s part.
The father tried to justify his decision not to provide the mother with money for part of [X]’s pre-school fees:
Ms Merritt had always sorted out that aspect [the payment of fees] of it. And it was up to her to let me know what she needed and I’ve always offered whatever she needs for it. [16]
[16] Transcript of proceedings, 14 February 2012, page 172.
I accept that the mother would be hesitant to get back to him when he made such a fuss about her asking in the first place and made derogatory comments about Mr S.
He was asked:
Q: Was it beyond your capacity to contact the pre-school and say “Here, here is some money for my son’s pre-school fees”?
A: No.[17]
[17] Transcript of proceedings, 14 February 2012, page 172.
Again, an immature attitude towards the responsibilities of parenthood.
I did not receive a straight answer about his business hours. He faffed, obfuscated and simply would not answer.
I accept that it is a 40-45 minute one-way journey from the father’s home to the child’s school at [School A] and only a 10 minute or so journey from the mother’s home. That is not weighing heavily on my mind as a factor in my determination, although it is a factor.
When it was put to the father that he had simply put himself in a good light by telling Mr G he had radically changed his work hours and now had help, he said:
I am a sole trader with no employees but my father comes to the shop and helps a lot…My father is semi-retired now and he loves tinkering around with things like that.[18]
[18] Transcript of proceedings, 14 February 2012, page 179.
That does not constitute a radical change in work arrangements.
The father was asked whether he believed, as he stated in his affidavit, that if the mother had primary care of the child she would in some way thwart the child’s relationship with him and he said:
A: Well, no
I asked:
Do you think [X]’s mum could actually put a wedge between you and him?
A:I doubt it very much. [19]
[19] Transcript of proceedings, 14 February 2012, page 199.
The paternal grandmother during cross-examination was asked to accept that [X] had said to his mother “Poppy is angry with you”.
From this premise, she was further asked as to how this could occur if her family never said anything negative about the mother.
A: …The whole family has been hurt by it ok? So when Ms Merritt feels this, and she knows that Mr M hasn’t been talking to her …maybe it came from Ms Merritt. [20]
[20] Transcript of proceedings, 15 February 2012, page 220.
I reject that evidence. Parents ought not to involve themselves in their adult children’s relationships. It is far more helpful to their children and grandchildren if they pull back and support their children by caring for their grandchildren and letting the protagonists work it out.
The paternal grandmother was asked why she did not say something nice about the mother in her affidavit. Her answer was words to the effect of “I didn’t say anything bad”. That is incorrect she said many negative things about the mother.
She was asked why she did not encourage the father to ensure her grandson had a first day at school, at whatever school. She answered

“That wasn’t up to me. That was up to his mum and dad”
.[21] This is an area where some calm objective advice in his father’s ear may have been helpful for [X].
[21] Transcript of proceedings, 15 February 2012, page 223.
As to the father’s continued feeling towards the mother, the grandmother said she had seen a change in her son’s attitude to Ms Merritt and had seen progress. The grandmother said she has seen happiness, smiles and planning for the future:
…Yes, he’s planning. He took [X] camping. [22]
[22] Transcript of proceedings, 15 February 2012, page 227.
I see no progress. The father’s feelings for the mother were the same in December 2011 as they were at separation two and a half years ago.
A kerfuffle ensued as the matter was completing. The maternal grandmother had collected the child and was most concerned about comments he made. Accordingly, I gave the parties leave to reopen. The maternal grandmother’s further evidence was that she had collected [X] at 9am from [Suburb omitted]. When she put [X] in the car he to her “I’m going to my mummy’s school”. The grandmother said “Yes you are, but you liked that school when you went there. That’s a good school”. [X] asked “Why are they doing all this talking for three days?” [X] was able to tell his grandmother all of the people who were at the “meeting”. [23]
[23] Transcript of proceedings, 15 February 2012, page 247.
I note that the word “meeting” is a euphemism for the ‘Court’.
He said, “No, it’s not fair. If Mummy gets the school she wants, Daddy should get me for more time. Mummy can’t have it all her way. If she gets one thing, daddy should get the other. [24]
[X] was described as being “tired”, “grumpy” and “annoyed” and fell asleep shortly after these comments were made.
[24] Transcript of proceedings, 15 February 2012, page 247.
[X] probably was annoyed. If I was [X], I would be annoyed. His mum and dad should have worked this out. The grandmother, when being cross-examined said “and I thought, well, how does he know that they’re talking for three days”?
The father gave evidence to the effect he got home at around six or six thirty on Monday and [X] was already there having been collected from a friend’s house by the paternal grandfather earlier. The father said:
He [[X]] asked if we had decided what school he is going to, and I said “Yes” you’re going to go to – to the school that mummy – that mummy showed you. [25]
[25] Transcript of proceedings, 15 February 2012, page 250.
The father then said that [X] spoke to his mother on the telephone at 7.30pm and was in bed by 7.45pm. The father was present when [X] spoke with his mother and said that [X] said to his mother, “I’m going to go to your school” and Ms Merritt agreed with this. The father said he got up at 6am the next morning, woke [X] up at roughly 7.10am and left with [X] at approximately 7.30am.
He said there was no discussion about the case. [X] was with his grandfather on that day, on the Tuesday. The aunt was sick on the Monday and didn’t speak because she was too sick.
He was asked if he had discussed the case with his dad.
A: No we did not.[26]
[26] Transcript of proceedings, 15 February 2012, page 254.
It is clear to me [X] is well aware of the dispute. He knew it was about his school. It would hardly surprise me if he raised these important issues for him with his father. It would have been unusual if he did not. He is a particularly intelligent and perceptive child. He knew his parents were involved in a meeting for three days and that all we do is talk, talk, talk. Naturally he was annoyed and it would have assisted me if the father had been open and honest about what happened after Court as it may have shown some insight and capacity in the father of the same level as the mother, which I am struggling to see.
The best I got was that the father said, “[X] has seen me wearing a suit, whereas I’m usually wearing, my work clothes”. [27]
[27] Transcript of proceedings, 15 February 2012, page 258.
Mr G gave his evidence in person on 5 March 2012 at the resumed part-hearing. He was told what the parents’ competing applications now were and that the mother’s concern was the father was still attached to her, there was negativity about her in the father’s home and there was an overemphasis or indulgence of the child in his home and the parent’s poor level of communication.
Mr G said the 40-minute trip was not such a consideration for him and would not be, to use his words a “deal breaker”.
Mr G, agreed that paragraph 35 of the father’s affidavit was consistent with the words he spoke to him,” I still love her”.Mr G said if he still thought like that and now realised it was over, he could perhaps react negatively. However, neither I nor Mr G believes the father would be physically or overtly difficult. He may make the odd cruel and unkind comment to the mother or send the odd unkind and cruel SMS, but as Mr G said as he has not behaved poorly in the last three years although there have been some issues. Mr G believed that the father will not react badly to a realisation that there is no hope for he and the mother to reconcile.
Mr G was of the view the change in the father’s application after the report interviews was a form of one-upmanship in his affidavit.
Mr G said, however if the father’s motivation was to hurt the wife and punish her by this one-upmanship, it could be a bit of a problem as when he realises there is no chance of a reconciliation, it may impact badly on the child as he may lose focus on the child and focus on his own hurt.
Mr G agreed that it is a strong possibility [X] is not comfortable telling his paternal family about his mother if he does clam up or say “it’s a secret”.
The child saying “Poppy is angry with you” to his mother may support that he hears something negative about her in his father’s household, or he views negative behaviours or he has picked up on things. The consequence for [X] is that it would cause confusion if he really believed his poppy was angry with his mother.
Similarly, Mr G said if the father became upset when the child told him mummy was taking him to [omitted Caves], this would cause the child confusion and would put a psychological strain on him.
Further, if the Court accepted that the father’s household does behave in this way at times, then that could affect the position that Mr G posited in his report, that there should be no change. It would make [X] unhappy, because he cannot be himself, the real boy that he wants to be at his father’s home.
Mr G said the confusion would be as to what is right and wrong and about separated families and this added pressure upon [X] would be negative to his emotional and psychological wellbeing.
Mr G was asked what he understood when the father said he had radically altered his work. At paragraph 28 of his report he states:
Mr Merritt said he had radically altered his working arrangements, since the separation.
That is not correct.
I find the father’s proposal for the care of the child is not as clear as the mother’s proposals. There is uncertainty as to the father’s work hours as he was not forthcoming and I am unsure what the arrangements would be. I accept that [X] will be well cared for because he will be with his grandparents, if not his father.
Mr G was quite firm that the father thought the mother was most unreasonable complaining about the [television program omitted] program and he could not see from her point of view why there might have been an issue. Further, he had the impression the child had watched the program. This evidence is inconsistent with the father’s affidavit and consistent with the mother’s.
Mr G said he determined the high standard of each parent’s parenting capacity due to how [X] reacted to them rather than anything each parent said about the other. Mr G said the father believed he had put his feelings for the mother to one side but on the evidence now before him perhaps he had not.
Mr G said the way he worked out the capacity of parents was to ask about their routines, bed time, eating schedule, school collection times, and involvement in school, leisure activities and what happens at the home. He was satisfied that [X] was a well cared for child in both homes.
Mr G said when he recommended things stay the same, he was concerned that starting school and changing care arrangements at the same time would be too much for the child as starting school is a big enough event.
The child was equally attached to both parents and as he had been in this arrangement for two and a half years, to change it now could definitely be an issue. If there was to be a change, [X] will know he is spending less time with one parent.
However, as [X] can understand time and knows what next week and this week is, this will soften the impact of any change for him. Mr G further said that [X] will feel sad at the prospect of spending less time with a parent, but it is a manageable issue for this child. To minimise the impact, what [X] would need is the same statements from each household. This may be problematic.
Mr G opined that given the evidence he had heard of the view the paternal family held about the mother this may be problematic.
Telephone contact each night, Skype and the like would certainly overcome most of the impact of change for [X] and the 40-minute trip was said not to be a deal breaker. Mr G preferred five straight nights rather than a break up of the week as [X] will benefit from a longer time.
When questioned as to why he had recommended at paragraph 58 of his report, that time should commence on a Friday afternoon he said this was to ensure each parent and [X] had a full weekend unlike now. I find the current arrangement for a shared weekend came about to suit the father’s work commitments and for no other reason.
The mother agreed, that if I put in place the 5 nights a fortnight time with the father and [X] really missed his dad she would do whatever was required, such as another night or week to assist him. I accept this evidence. I have no such faith in the father’s capacity to be as child focused.
The parties separated in June 2009. An Apprehended Violence Order was taken out on 29 September 2010 to be in force for two years. The father was still harassing the mother in January 2011 with his SMS messages, and the mother made a complaint and according to her evidence, the father was placed on a good behaviour bond. The mother’s evidence was that the father was at times still harassing her and she has made no complaint as she does not want the father to go to prison and this is accepted by me.
There is an evident level of immaturity in the father’s attitude and behaviours. If the mother makes a criticism of the father he takes it personally rather than taking it on board to see if a change may benefit his son. Thus, if the mother complains about a TV show or a bed time, the father takes that as a personal criticism about him and his parenting rather than saying, “Well, perhaps that show isn’t right, perhaps his bed time isn’t right”. This evident level of immaturity does and will have a negative impact on the child if he spends equal time in each parent’s home.
The submissions for the father were that the presumption of equal shared parental responsibility be maintained and this was agreed to by the mother and that an equal-time arrangement in a different format as is presently constituted continue.
To make an order for equal time, I must not only be satisfied that it is in a child’s best interest to do so; it must be reasonably practicable and realistic for the order to be made. If I am not satisfied an equal time order is reasonably practicable, then I cannot make such an order as it is not then in a child’s best interests to do so: MRR v GR [2010] HCA 4.
I have real concerns about the practicality of an equal-time arrangement continuing. My concerns are as follows.
There is a degree of negativity emanating from the father’s household towards the mother.
As the child matures, Mr G opined, he will pick up on this even more. No one in the paternal family has satisfied me, except perhaps the aunt, who had some glimmer of recognition, that they understand what it is they are doing to send these negative messages to [X].
I accept they do not speak directly to him about their mother. My concern is that they do not speak about the child’s mother at all and that will, as time goes on, eat away at this child’s emotional stability, causing him unhappiness and confusion, as he loves his mum and he will not be able to understand why the paternal family do not love his mother.
Secondly, in the practical sense the child is not in preschool any more; he is at big school. He now begins to lead his own life. These parents do not communicate very well and had they not agreed to share parental responsibility, there is evidence that could lead me to rebut same.
I accept the mother’s evidence, that when she does communicate with the father, at times she gets a tirade of abuse by way of an SMS message in return. The father does not have a mature attitude to parenting. He takes any negative comment personally, and he does not accept anything the mother says to him, for example, an inappropriate TV show or getting a child to bed on time. He rejects her concerns outright. The father has no concerns about the mother’s care of the child and those he raised were illusory.
The criticism the father made about the mother not being able to get time off work as reducing her work hours will result in her struggling financially was both illusory and hypocritical. The father works six days a week every week and has a very poor attitude in assisting the mother to support their son in payment of pre-school fees and the like.
I accept the parents have created a secure base for [X], however with the significant inconsistencies in the father’s evidence, even Ms Doust’s valiant and useful submissions on how I should deal with these inconsistent points, did not satisfy me that I could look the other way. The father was not only inconsistent but he was untruthful.
I must look at the whole picture. The whole picture is a mother prepared to tell the story, whether it is against her or not, in her interests or not, clearly and well. Her position; that the care regime for [X] needed to be changed was consistently maintained and only changed as to the make up of the time after she heard Mr G’s evidence that her arrangement was a bit patchy and that [X] needed a longer period of time with his dad.

I contrast that with the father’s position. A position he put to

Mr G in September, that being; equal time whether it be the same school or not, was inconsistent with his response filed before he saw Mr G, but consistent with his affidavit filed in December 2011, after he saw Mr G and inconsistent with his oral evidence before me.
A father, who although focused on his work tells me he has a flexible work arrangement because he is self-employed, tells Mr G that he has radically altered his work regime and employed an assistant when he has not. He does not have an assistant. His dad comes in occasionally. The story about how his own father spends his day is on point as to the poor way the father gave his evidence. It came out in dribs and drabs what his dad did which I still do not know. Was it working with him, fishing on his boat, staying at home with [X], all of the above or something different? I have no idea. Little was forthcoming.
The father takes no responsibility for his conduct, his poor behaviour and his actions towards the mother after separation. The father does not refer to the incident on 17 June 2010 which was very much against his interests when he rips the car keys out of the mother’s hand and accidently hits [X] with them. The father tells me in his affidavit in December 2011 he still loves the mother and will have her back, told Mr G the same in September 2011, yet in the witness box says he is over it. The father says he has no problems with Mr S to Mr G yet runs him down to the mother and in his affidavit.
These are not the actions of a parent who is child focused, able to prioritise the needs of the child or who understands the responsibility of parenthood. He cavils with paying child support, will not assist the mother to pay half the child care fees and never thought of contacting the pre-school to arrange payment for some of the fees. I am satisfied the father has failed to support his child to the best of his ability.
This is not the behaviour of a parent who is able to put the needs of a growing, intelligent boy, who will become more demanding and more perceptive as he grows, before his own. His attitude to [X]’s school is breathtaking. He knew the mother opposed the child attending a Catholic school. The hearing could not take place in December 2011. Rather than putting his son’s need to have a first day at school with all the other little Kindergarten kids as a priority he dug his heels in and [X] missed out.
Who benefited from that conduct? No one. Who was damaged or lost out by that? His son, again demonstrating an inability to put his son’s needs before his own.
I accept the father believes he, the mother and [X] should have together attended events he and the mother discussed attending when their marriage was on foot such as [omitted Caves], the zoo, wildlife parks and the aquarium. Even though the parents have been separated for almost three years he believes the mother is unreasonable and his approach is proper. It is not.
He is not over the breakdown of the relationship with the mother or over his strong feelings for her. He still holds a torch for the mother and he cannot be honest with the Court although he was honest with Mr G on that point. His lack of candour cannot be explained as a natural reluctance to admit things against his interest. It is more than that. It is inconsistency, gilding the lily, not being truthful. It is not evident with the mother. The mother has a mature approach to parenting and taking on responsibility for situations she may have caused. The father has not and cannot do this, or very rarely does so.
Looking at these matters, pursuant to the Family Law Act 1975, the presumption of equal shared parental responsibility will be maintained.
Therefore, I must consider an equal-time arrangement which is what the child has been used to. If this is not an order in [X]’s best interests then I am to consider a time regime providing for significant and substantial time with the parents.
An equal-time arrangement is not practicable. The father has an immature attitude to parenting. He does not see matters always from the child’s best interest and seeks on most occasions to put blame at the mother’s feet if things do not go well. He was inconsistent with me and Mr G and put inconsistent and differing points of view at each time when it suited him and at times was untruthful.
He has minimal insight into the impact on [X] of the clear negative emanations from his family evident in their affidavit, and the one person I needed to hear from and for Mr G to see; the paternal grandfather, did not participate at all in the matter. I do not accept that the paternal grandfather’s English was not good enough but rather accept that that was an excuse. We have interpreters available in this Court used again and again.
The mother has a consistent child-focused, child-appropriate position. The father is all over the shop. He has had a bet each way. His attitude to the child missing out on his first day of school speaks volumes to me and indicates that there is an ongoing risk that the father’s needs and wants will overtake the child’s. He still carries a torch for the mother and that clouds his judgment, and his family has not assisted him in this.
The child’s wishes are not relevant. He is too young to express a wish.
Equal time may diminish the benefit to [X] of his meaningful relationship with his mother due to the negativity of her in the father’s household and poses a potential risk to [X]’s full emotional functioning over time, as set out by Mr G.
Significant and substantial time will maintain, for [X] the benefit of his meaningful relationship with his father and I accept the mother will provide for additional time if this is what [X] needs.
There will be a change to the child’s usual care arrangements if I accept the mother’s and Mr G’s position of Thursday to Tuesday each alternate week with his father. He will be missing out on two days a fortnight with his dad that he is used to having.
I accept that the child will feel sadness but it is manageable and in his mother’s primary care it will be managed well. There is no question that in his mother’s household his father is spoken of positively, as is his father’s family. It is reported by Mr G that during the interview, [X] had blurted out that he had forgotten to brush his teeth this morning at his father’s place, but said “lucky nanny remembered” and the mother said, “she’s a good nanny”.[28] The mother said good, positive things about the paternal family in her affidavit and in oral evidence and to Mr G. It did not happen with the father’s family.
[28] Report of Mr G, 11 September 2011, paragraph 47.
The father said in oral evidence the mother was a good mother. He had no concerns of her care of [X] but that was as positive as he could be. The father’s immature attitude to parenting and lack of a strong child focused is in stark contrast to the mother’s exemplary parenting.
The father has not supported the child financially to the best of his ability, and his attitude in that regard causes me concern because that is the reason for the breakdown of his marriage, his desire to pay off his debts and get his business going.
The father lied concerning his attitude to Mr S, to Mr G and to the Court. He has a negative attitude toward Mr S. Mr S is a member of [X]’s household and he has a good relationship with [X] and that again is going to be a problem for this little boy as he grows up.
For all these reasons I do not see that it is reasonably practicable that this child continue to live in an equal shared care arrangement. He must be in the primary care of the parent who has a strong child focus, mature attitude to parenting and personal responsibility, who has been the most open and honest with the Court, who will manage the consequences of change the best for [X] and who will promote a positive attitude to each parent and that is clearly the mother.
It is an order in [X]’s best interests that he live primarily with his mother and spend significant and substantial time with his father and I will so order.

I certify that the preceding two-hundred and sixty-four (264) paragraphs are a true copy of the reasons for judgment of Henderson FM

Date: 5 April 2012