Meskin and Godfrey

FEDERAL CIRCUIT COURT OF AUSTRALIA

MESKIN & GODFREY

[2017] FCCA 786

Catchwords:
FAMILY LAW – Parenting issues – equal shared parenting time versus substantial and significant time – differing personalities and parenting styles – child’s good relationship with both parents.

Legislation:

Family Law Act 1975 (as amended), ss.60B, 60CA, 60CC, 61DA, 65DA(1), (2), (3), (4) & (5)

Applicant:

MS MESKIN

Respondent:

MS GODFREY

File Number:

ADC 1649 of 2015

Judgment of:

Judge Mead

Hearing dates:

7, 8 and 9 September 2016

Date of Last Submission:

9 September 2016

Delivered at:

Adelaide

Delivered on:

21 April 2017

REPRESENTATION

Counsel for the Applicant:

Ms Ross

Solicitors for the Applicant:

Franklin Legal

Counsel for the Respondent:

Ms Cocks

Solicitors for the Respondent:

SA Family Law

ORDERS

That all previous orders made herein with respect to parenting issues SAVE AND EXCEPT for paragraphs 1 and 2 of the order made herein on 25 January 2017 be discharged.
That the parents have equal shared parental responsibility for X born (omitted) 2012.
That the said child live with the respondent.
That the said child spend time with the applicant as follows:
(a)During the April 2017 school holidays for a total of six (6) nights of which four (4) should be consecutive nights at times as agreed between the parties;
(b)As and from the commencement of Term 2 of 2017 and during school term time:
(i)Each alternate weekend from the conclusion of school Friday (or 4:00pm if a non-school day) until the commencement of school Monday (or the commencement of school Tuesday if the Monday is a public holiday or a pupil free day) in Term 2 on the Friday when the existing alternate weekend time would ordinarily occur;
(ii)In each intervening week commencing on the Monday seven (7) days after the conclusion of the time provided for in paragraph 4(b)(i) hereof, from the conclusion of school (or 4:00pm if a non-school day) Monday to the commencement of school (or 9:00am if a non-school day) Wednesday;
(iii)On each alternate Wednesday commencing on the first Wednesday after the alternate weekend time from the conclusion of school to 7:00pm with such time to include an evening meal;
(iv)During the July and October 2017 school holiday periods for six (6) consecutive nights commencing on either the last day of the school term or the first Friday of the school holiday period in accordance with the term time alternate weekend regime and concluding at 5:00pm on either the first or the second Thursday of the said school holiday period;
(v)During the Christmas school holidays commencing December 2017 for six (6) consecutive nights in each two (2) week period commencing on either the last Friday of the school term or the first Friday of the Christmas school holiday period in accordance with the existing term time alternate weekend regime and concluding at 6:00pm on the following Thursday subject to the provisions herein with respect to time on Christmas Eve, Christmas Day;
(vi)As and from the April 2018 short term school holiday periods, for one (1) half thereof at times to be agreed or in default of agreement for the first half concluding at 5:00pm on the middle Saturday or for the second half commencing at 5:00pm on the middle Saturday in accordance with the term time alternate weekend regime and if the second half, to conclude at the commencement of school on the first day of the following school term;
(vii)As and from the Christmas school holiday period commencing December 2018, on a “week-about” basis at times agreed between the parties or in default of agreement commencing at the conclusion of school on the last day of school term or at 5:00pm the following Friday in accordance with the term time alternate weekend regime and concluding at 5:00pm on the following Friday and each alternate week thereafter between the same times subject to the provisions contained herein with respect to Christmas Eve, Christmas Day and Boxing Day time;
(viii)From 3:00pm Christmas Day to 3:00pm Boxing Day in 2017 and each alternate year thereafter between the same times PROVIDED HOWEVER that X is in the care of the respondent from 3:00pm Christmas Eve until 3:00pm Christmas Day in 2017 and each alternate year thereafter between the same times;
(ix)From 3:00pm Christmas Eve until 3:00pm Christmas Day in 2018 and each alternate year thereafter between the same times, PROVIDED HOWEVER that X is in the care of the respondent from 3:00pm Christmas Day to 3:00pm Boxing Day in 2018 and each alternate year thereafter between the same times;
(x)On X’s birthday in each year if same shall fall on a day when X is in the care of the respondent, from the conclusion of school to 7:00pm if same shall fall on a school day or otherwise for four (4) hours at times to be agreed between the parties or in default of agreement between 10:00am and 2:00pm PROVIDED HOWEVER that should X be in the care of the applicant on her birthday the same provisions will apply to X’s time with the respondent;
(xi)On the applicant’s birthday in each year should same fall on a day when X is not in her care from the conclusion of school to 7:00pm if same shall fall on a school day or otherwise for four (4) at times to be agreed between the parties or in default of agreement from 10:00am to 2:00pm PROVIDED HOWEVER that should the respondent’s birthday fall on a day when X is in the applicant’s care the same provisions will apply to X’s time with the respondent; and
(xii)On Mother’s Day in each year in the event that same falls on a day when X is in the care of the respondent for a period of five (5) hours at times to be agreed or in default of agreement from 9:00am to 2:00pm PROVIDED HOWEVER that should Mother’s Day fall on a day when X is in the applicant’s care the same provisions will apply to X’s time with the respondent.
That both parties facilitate X communicating with the other of them by telephone, Facetime or Skype:
(a)At any time that X may reasonably request; and
(b)On at least one occasion during anytime that X is in the care of either party for a period of time exceeding three (3) consecutive nights.
That the applicant be at liberty to travel with X to (country omitted) during the October 2017 school holidays for a period of up to six (6) consecutive nights and that the respondent do sign all necessary documents and do all such things as shall be necessary to enable the applicant to obtain a passport for X and on condition that the applicant provides the respondent with an itinerary and contact details relating to X’s travel to (country omitted) not less than twenty eight (28) days prior to the date of anticipated departure.
That both parties be at liberty to attend at X’s school for activities and events to which parents are specifically invited including but not limited to school assemblies, sports days and the like.
That each party be at liberty to obtain copies of all school newsletters, reports, academic records, photographs and the like at their individual expense as well as information from X’s school pertaining to the child’s overall school progress including academic social and sporting progress.
That in the event that X suffers any serious illness or accident the party who has the care of X at the time shall provide to the other party advice forthwith as to the nature of the illness or accident together with details of any treatment recommended for the child.
Both parties be at liberty to speak with all relevant medical practitioners as to such treatment and attend upon relevant medical practitioners in relation to the serious accident or injury and attend for the purposes of visiting X at any hospital to which she may be admitted.
That the parties keep the other of them informed at all times of the contact details of any general practitioners or allied health professionals consulted with respect to X, with both parties to be at liberty to attend on or speak with such medical practitioners or allied health professionals with respect to any treatment proposed for X and/or her general medical progress.
That all applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1649 of 2015

MS MESKIN

Applicant

And

MS GODFREY

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Meskin and Ms Godfrey are unable to reach agreement with respect to parenting orders for the child of their relationship X born (omitted) 2012. At the time of trial X was aged 4 ½ years.
The child is known as “X” by her parents and was referred to by them throughout the proceedings as “X”. Accordingly I will refer to the child in that way throughout these reasons without intending any disrespect either to the child or to the parents.
Ms Meskin initiated the proceedings by way of an application filed on 18 May 2015. On 19 April 2016 she filed an amended application followed by two further amended applications on 25 May 2016 and 8 August 2016 respectively.
Ms Godfrey filed a response to the initiating application on 7 August 2015 followed by amended responses on each of 14 April 2016, 16 May 2016 and 19 August 2016 respectively.
On 17 August 2015 orders were made by consent that the parties have equal shared parental responsibility for long-term major issues affecting X and for her to live with Ms Godfrey.
At the time of trial it was common ground that the parties should continue to share parental responsibility for X. They remained in dispute as to the amount of time X would spend in the household of each of them and what school she should attend.

Background

At the time of trial the applicant was aged 32 years and the respondent 34 years. They commenced their relationship and cohabitation in or about mid-2002 and separated in October 2012 at which time X was aged approximately 8 months.
Ms Godfrey is the biological mother of X with both parties registered as the parents of X on her birth certificate. The Court must therefore determine the matter in accordance with the relevant provisions of Part VII of the Family Law Act 1975 (as amended).
X remained in the primary care of the respondent upon the parties’ separation. She had been born some nine weeks prematurely and remained in hospital for some nine weeks following her birth. During this time the respondent spent each day with X in the hospital with the applicant visiting each day, usually on multiple occasions.
Following upon X’s discharge from the hospital in April 2012 the respondent, who was on maternity leave for some time, remained at home and undertook the primary care of X. She returned to work two days per week in September 2012.
During the six months or so post X being discharged from hospital and the parties separating the applicant continued to work but otherwise assisted with caring duties for X.
When the respondent returned to work for two days per week X was initially cared for by a private nanny but commenced attending at childcare in January 2013.
Following upon separation X remained in the primary care of the respondent. The parties reached agreement as to the time she spent with the applicant, commencing with an hour or so at a time on Wednesdays and Saturdays and then in or about November 2012 extending to several hours on a Saturday. The time on Wednesday also extended to approximately three hours with both the Saturday and Wednesday time occurring away from the respondent’s home.
Additional time was agreed on Tuesday evenings around the same time, with the applicant collecting X from the nanny or childcare and then returning her to the respondent’s home.
In April 2013 the parties agreed that X would commence staying overnight with the applicant on a Friday evening, initially until 10:00am on Saturday morning but over a fairly short period of time extending to include most of Saturday.
It was clear from the evidence of the applicant it was her position from soon after separation that the parties should work towards X spending an equal amount of time with each of them. She advised the respondent of her view. It was clear from the applicant’s evidence at trial that nothing short of equal shared parenting time in due course would be acceptable to her.
It was the case of the respondent and clear from her evidence that at no time had she ever considered that such an arrangement would be in the best interests of X.
The parties commenced attending mediation in or about October 2013. It was common ground that they attended approximately five mediation sessions at the Family Relationship Centre prior to the institution of proceedings by the applicant in May 2015.
In the initiating application filed 18 May 2015, Ms Meskin sought on a final basis that the parties have equal shared parental responsibility and that X live with the respondent. She sought a gradual increase of time with X such that from the time of the filing of her application until the July 2015 school holidays X spend two overnight periods per week in her care being a Wednesday and a Friday, as well as four hours on a Tuesday afternoon and on Saturday until 5:00pm each week.
She sought that time increase from the July 2015 school holidays such that X be in her care from 3:30pm Tuesday to 9:00am Thursday each week and 4:00pm Friday to 5:00pm Saturday of each week.
As and from the October school holidays in 2015 she sought that X’s time with each party occur in a fortnightly cycle, with X to spend time with her in week 1 from 3:30pm Tuesday to 9:00am Thursday and 4:00pm Friday to 5:00pm Saturday and then in week 2 from 3:30pm Wednesday to 9:00am Friday. This was a total of five nights per fortnight.
She sought that as and from the April school holidays in 2016 the fortnightly cycle change such that in week 1 X be in her care from 3:30pm Tuesday to 9:00am Thursday and 4:00pm Friday to 5:00pm Sunday (four nights) and in week 2 from 3:30pm Wednesday to 9:00am Saturday (three nights). This was a total of seven nights per fortnight.
The applicant also sought orders providing for both parents to be able to spend time with X on Christmas morning each year and for her to spend the rest of the day with each of them in alternate years and orders for X to spend half of each school holiday period with each parent at times agreed between the parties.
She sought a specific order in relation to the parties spending time with X on her birthday in alternate years.
In her response Ms Godfrey sought orders for equal shared parental responsibility and for X to live with her. She proposed that from the date of the filing of her response being 7 August 2015 to April 2016 X spend time with the applicant from 5:00pm Friday to 5:00pm Sunday each alternate week, on Tuesdays from 3:30pm until the following morning at 9:00am and on Wednesdays from 3:30pm to 7:00pm.
She proposed from April 2016 that X spend time in a fortnightly cycle with the applicant, in week 1 from 3:30pm Tuesday to 9:00am Wednesday and 5:00pm Friday to 5:00pm Sunday and in week 2 from 3:30pm Tuesday to 9:00am Thursday.
She sought that from April 2017 the fortnightly cycle continue with X spending time with the applicant in week 1 from after school Tuesday until the commencement of school Wednesday and from after school Friday until Sunday at 5:00pm and in week 2 from after school Tuesday until the commencement of school on Friday.
She sought what might be described as “standard orders” to cover Christmas Eve, Christmas Day and Boxing Day in each year and for provision for each party to spend three hours with X on her birthday if she was living with the other parent on that day.
She sought orders in relation to each party being able to obtain school and health information, to communicate about the health, care and welfare of X in a respectful and courteous manner and to attend community based mediation in the future to discuss issues that might arise, as well as for the applicant to attend the Kids Are First Program.
The first return date of the application was 17 August 2015. At this time orders were made by consent during the period of the adjournment providing for X to spend time with the applicant from 3:30pm until 7:00pm on Tuesday of each week, from 3:30pm Wednesday to 9:00am Thursday of each week and from 4:00pm Friday to 5:00pm Saturday of each week.
Further consent orders were made on 1 December 2015 providing for X to spend time with the applicant from 8:00am Tuesday to 7:00pm Wednesday in each week and from 4:00pm Friday to 5:00pm Sunday in each alternative week.
Those orders were in place at the commencement of trial.

Orders sought by parties at trial

By the time of trial the parties positions with respect to final orders had changed on several occasions as evidenced by the amended initiating applications and responses filed.
At the time of trial the applicant sought the following final orders:-
1.That the Applicant MS MESKIN and the Respondent MS GODFREY do have equal shared parental responsibility for the child, X born (omitted) 2012 (“X”).
2.That the child X live with the Applicant as follows:
2.1Commencing Monday 12 September 2016 and concluding on Christmas Eve 2016, for 5 nights per fortnight as follows:
(a)Week 1 for 4 nights, from 4.00pm Monday (or conclusion of kindergarten) until 9.00am Tuesday and from 4.00pm Friday until 9.00am Monday (or commencement of kindergarten) of Week 2 of each fortnight; and
(b)Week 2 for 1 night, from 4.00pm Thursday until 9.00am Friday, commencing Thursday 22 September 2016.
2.2During the October 2016 school holidays for a total of 7 nights being from 3.00pm Friday 30 September 2016 to 5.00pm Wednesday 5 October and from 4.00pm Tuesday 11 October to 5.00pm Thursday 13 October.
2.3During the December 2016/January 2017 school holidays after Christmas Eve as follows:
(a)for a period of 6 consecutive nights from 4pm Wednesday 28 December 2016 to 4pm Tuesday 3 January 2017
(b)from Monday 9 January 2017 for 6 nights per fortnight as follows:
(i)Week 1 for 4 nights from 4.00pm Monday until 4.00pm Tuesday and from 4:00pm Friday until 9.00am Monday of Week 2; and
(ii)Week 2 for 2 nights from 4pm Wednesday to 9.00am Friday.
2.4During Term 1 2017 the time commencing on 9 January 2017 do continue in the same fortnightly cycle on the days specified in subparagraphs 2.3(b)(i) and (ii) hereof, with the commencement and conclusion times to coincide with the commencement and conclusion times of the child’s school if they coincide with school day.
2.5Commencing on the first Monday of the April 2017 School Holidays for 7 nights per fortnight as follows:
(a)In the April school holidays from 3.00pm on the first Monday to 9.00am Wednesday Week 1 and from 3.00pm Friday to 3.00pm Wednesday of Week 2 of the holidays and
(b)During school terms thereafter following the same fortnightly cycle and on the days specified in subparagraph 2.5(a) hereof, with the commencement and conclusion times to coincide with the commencement and conclusion times of the child’s school if they coincide with school days.
2.6School holidays from July 2017 and each school holidays thereafter, equal time with the Respondent on a week on week off basis with X’s time with the Applicant to commence in accordance with Week 1 of the cycle of time specified in paragraph 2.5 and X’s time with the Respondent to commence in accordance with Week 2 of the said cycle.
2.7That X live with the Respondent at all other times.
3.That handovers take place at X’s kindy or school or such other place as may be agreed between the parties.
4.That X shall attend the (omitted) Primary School (or such other Primary School that is a feeder school to (omitted) High School) as may be agreed between the parties or ordered by the Court commencing Term 1 Reception 2017.
5.Christmas
That the orders set out in paragraph 2.1 hereof be suspended during the Christmas period such that X spend time:
5.1with the Applicant from 3.00pm Christmas Eve until 3.00pm Christmas Day 2016 and with the respondent from 3.00pm Christmas Day until 3.00pm Boxing Day 2016 and every even numbered year thereafter and
5.2With the Respondent from 3.00pm Christmas Eve until 3.00pm Christmas Day 2017 and with the Applicant from 3.00pm Christmas Day until 3.00pm Boxing Day 2017 and every odd numbered year thereafter
6.X’s birthday
That if X’s birthday falls on a school day X spends 3 hours from 4pm to 7.00pm with the non-residential parent. If X’s birthday falls on a non-school days X spends 4 hours with the non-residential parent at times to be agreed between the parties.
7.Parent’s birthdays
That of the non-residential parent’s birthday falls on a school day X spends 3 hours from 4pm to 7pm with the non-residential parent and if the birthday falls on a non-school day X spends 4 hours with the non-residential parent as times to be agreed between the parties.
8.Mother’s day
That X spends 4 hours with the non-residential parent at times to be agreed between the parties.
9.Travel to (country omitted)
That X be allowed to travel to (country omitted) in either the July or October 2017 school holidays for up to 7 nights with the Applicant and that the Respondent do sign all necessary documents for the issue of a passport for X in a timely manner, with the Applicant to provide the Respondent with an itinerary and contact details for the child no less than 1 month prior to such travel.

The respondent’s position at trial was as specified in the case outline tendered to the court by the respondents counsel which was in the same terms as the further amended response filed 19 August 2016 save as to the addition of a clause requiring the parties to do all such acts and things and sign all such documents necessary to enrol X at (omitted) Primary School forthwith and for X to attend (omitted) Primary School from Term 1 of 2017.
The orders sought were in the following terms:-
1.That the child spend time with Ms Meskin during school term as follows:-
(a)Until the conclusion of Term 1, 2017:-
(i)each Tuesday from 4pm (or the conclusion of school, once the child is attending school) until the commencement of kindergarten or school Wednesday (or 9am if a non-school day);
(ii)each alternate weekend, from 4pm Friday (or the conclusion of school, once the child is attending school) until 5pm Sunday;
(b)As and from the commencement of Term 2, 2017:-
(i)each alternate weekend, from the conclusion of school Friday (or 4pm in a non-school day) until the commencement of school on Monday (or the commencement of school Tuesday of the Monday of a Public Holiday or Pupil Free Day);
(ii)each intervening week, from the conclusion of school (or 4pm if a non-school day) Monday to the commencement of school (or 9am if a non-school day_ Wednesday.
2.That the child spend time with Ms Meskin during school holidays as follows:-
(a) In the October 2016 school holidays:-
(i)from 4pm on Friday 30 September 2016 until 9am on Monday 3 October 2016;
(ii)from 4pm Monday 10 October 2016 until 9am Thursday 13 October 2016;
(b)In the December 2016/2017 school holidays:-
(i)each Tuesday from 4pm until Wednesday at 9am (save for Tuesday 3 January 2017);
(ii)from Friday 30 December 2016 at 4pm to Tuesday 3 January 2017 at 9am;
(iii)from Sunday 8 January 2017 at 4pm to Thursday 12 January 2017 at 9am;
(iv)from Friday 27 January 2017 at 4pm to Sunday 29 January 2017 at 9am;
(c)In the April 2017 school holidays:-
(i)from Tuesday 18 April 2017 at 4pm until Wednesday 19 April 2017 at 9am;
(ii)from Thursday 20 April 2017 at 4pm until Monday 24 April 2017 at 9am;
(iii)from Wednesday 26 April 2017 at 4pm until Thursday 27 April 2017 at 9am;
(d)In the July 2017 school holidays:-
(i)from Tuesday 11 July 2017 at 4pm until Wednesday 12 July 2017 at 9am;
(ii)from Friday 14 July 2017 at 4pm until Wednesday 19 July 2017 at 9am;
(e)In the October 2017 school holidays:-
(i)from Tuesday 3 October 2017 at 4pm until Wednesday 4 October 2017 at 9am;
(ii)from Friday 6 October 2017 at 4pm until Wednesday 11 October 2017 at 9am;
(f)From the December 2017/2018 school holidays and thereafter:-
(i)for one-half of the Christmas school holidays on a week about basis on dates and times to be agreed between the parties and in default of agreement:-
(1)from the holidays which commence in December 2017 and each alternate year thereafter, during weeks one, three and five with all handovers to occur at 4pm on Friday (SAVE AND EXCEPT that handover on the final day of terms be at the conclusion of school);
(2)from the holidays which commence in December 2018 and each alternate year thereafter, during weeks two, four and six with all handovers to occur at 4pm on Friday;
(ii)during each short school holiday period, from the conclusion of school on the final day of terms until 5pm on the middle Saturday of the holidays.
3.That notwithstanding any other order, and to enable the child to celebrate special occasions with each party, the child spend time with each party as follows:-
(a)At Christmas 2016 and each alternate year thereafter:-
(i)With Ms Meskin from 3pm Christmas Eve until 3pm Christmas Day;
(ii)With Ms Godfrey from 3pm Christmas Day until 3pm Boxing Day;
(b)At Christmas 2017 and each alternate year thereafter:-
(i)With Ms Godfrey from 3pm Christmas Eve until 3pm Christmas Day;
(ii)With Ms Meskin from 3pm Christmas Day until 3pm Boxing Day;
(c)On the child’s birthday, and only if she will not otherwise spend any time with one of the parties on that day, then with that party:-
(i)From the conclusion of school until 6pm if the birthday falls upon a school day;
(ii)From 10am to 2pm if the birthday falls on a non-school day;
(d)On Ms Godfrey’s birthday each year ((omitted)), and only if she will not otherwise spend any time with the child on that day:-
(i)from the conclusion of school until 6pm of the birthday falls on a school day;
(ii)from 10am to 2pm if the birthday falls on a non-school day;
(e)On Ms Meskin’s birthday each year ((omitted)), and only if she will not otherwise spend any time with the child on that day:-
(i)from the conclusion of school until 6pm of the birthday falls on a school day;
(ii)from 10am to 2pm if the birthday falls on a non-school day;
(f)On Mother’s Day each year, and only if the child will not otherwise spend any time with one of the parties on that day, then with that party from 10am to 2pm.
4.That the parties do all such acts and things and sign all such documents necessary to cause the child:-
(a)To be enrolled at (omitted) Primary School forthwith;
(b)To attend (omitted) Primary School from Term 1, 2017.
5.That each party be at liberty to obtain copies of the child’s kindergarten and school academic records, report cards, newsletters and photographs (at the cost in each case of the party seeking such items), fee and enrolment information and all other information pertaining to the child’s kindergarten and school and school related sports activities, and both parties are at liberty to attend any kindergarten or school function to which parents are usually invited.
6.That if the said child suffers from any serious illness or accident, the party in whose care the child then is, shall advise the other party of same as soon as possible.
In addition she sought that the orders for equal shared parental responsibility and for X to live with her made by consent on 15 August 2015 remain as final orders.
The applicant sought that X attend at (omitted) Primary School or such other primary school that is a feeder school to (omitted) High School. The respondent proposed that X attend at (omitted) Primary School.
The issue of which school X was to attend was determined by the court as a discrete issue on 25 January 2017 in circumstances where the court was not in a position to deliver reasons for judgment with respect to all final issues on that day. The court delivered oral reasons because it was necessary for that matter to be determined due to X commencing school in Term 1 of 2017, and determined for the reasons given that day that the appropriate school for her was (omitted) Primary School.
The real nub of the dispute between the parties was the rate of increase of X’s time with the applicant and whether that time should ever progress to being equal or whether it should only ever increase to equal time during school holiday periods, with term-time never exceeding five nights per fortnight (or six if the weekend time fell on a long-weekend).

Relevant Legal Principles

Part VII of the Family Law Act 1975 (as amended) provides the legislative framework within which the court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards to children’s orders, namely to ensure that the best interests of the children are met by:-
1.ensuring that the 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 children; and
2.protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
3.ensuring that the children receive adequate and proper parenting to help them achieve their full potential;
4.ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the object are set out in Section 60B(2) and provide that, except when it is or would be contrary to the child’s best interests:-
1.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;
2.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
3.parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
4.parents should agree about the future parenting of their children; and
5.children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order. [1] To determine the best interests of a child the court must consider the factors set out in section 60CC(2) and (3) of the Act.
[1] Section 60CA
Section 61DA of the Family Law Act 1975 (as amended) provides that 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’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the court is satisfied that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility. [2]
[2] Section 65DA(1)(2)(4)
In the event that an order is made for equal shared parental responsibility the court must consider whether it is in the child’s best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur. [3]
[3] Section 65DAA(1)
If the court determines that such an order is not in the child’s best interests, it must consider whether it would be in the child’s best interest to spend substantial and significant time with each parent and whether that is reasonably practicable. [4]
[4] Section 65DAA(2)
The Act defines what is meant by substantial and significant time, [5] and specifies that the court must have regard to certain issues when deciding whether orders are reasonably practicable. [6]
[5] Section 65DAA(3)
[6] Section 65DAA(5)
All of those issues must be considered in this case against the backdrop of the requirement that the parenting order the Court makes must be in X’s best interests, as determined in accordance with the provisions of Section 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.

Evidence and Findings

It is convenient to deal with the areas of dispute in this matter by way of considering the parties’ evidence as it applies to the relevant provisions of the legislation.

Parental Responsibility

The parties consented to an order for equal shared parental responsibility on 15 August 2015. At trial neither party sought to set-aside that order and I found nothing in the evidence of either party to suggest that such an order was not in the best interests of X.
Notwithstanding the inability of the parties to agree on some issues, they are both devoted to X and interested in all aspects of her life. Historically they had some capacity to reach agreement about matters.
Proximate to trial they were in dispute as to the school to be attended by X and that issue did need to be determined by the court. The parties had a history of attending at mediation, which although ultimately unsuccessful was a path that I am satisfied was trodden by both parties in the interests of trying to resolve their disputes.
There was no evidence to suggest that either party should be excluded from the important parenting role that attaches to each parent by virtue of equal shared parental responsibility.

Section 60CC(2) – Primary Considerations

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

The orders proposed by each of the parties contemplated the child having a meaningful relationship with the other of them. The orders that were in place post-December 2015 provided for X to live with the respondent but to spend substantial and significant time with the applicant, comprising two full days and one overnight period in one week and in the alternate week a continuous period of 49 hours.
At the time the order was made X was aged 3 years and 10 months. The order was an order made with the consent of the parties. It was reflective of X’s young age and the fact that she had been in the primary care of the respondent for all but the first eight months or so of her life.
The orders proposed by the applicant involved an increase in X’s time with her such that from September 2016 X be in her care for five nights per fortnight over a two week cycle, increasing to seven nights during the October 2016 school holiday period, with regular increase to six nights per fortnight as and from 9 January 2016, again over a two week cycle.
She proposed X spend seven nights per fortnight in her care during the April 2017 school holiday period and as from the July 2017 school holiday period proposed X live with each party on a week-on week-off basis during school holiday time.
The applicant proposed that following upon the April 2017 school holiday period X live with her for seven nights per fortnight, again over a two week cycle.
The respondent proposed that until the conclusion of Term 1 in 2017 X spend time with the applicant for three nights per fortnight over a two week cycle and from the commencement of Term 2 in 2017 for five nights per fortnight, again over a two week cycle.
She proposed X spend time with the applicant during the October 2016 school holiday period for six nights over the two weeks of the holidays and in the December 2016/17 school holidays for a total of approximately sixteen days. She proposed time for six nights in the April 2017 school holidays, six nights in the July 2017 school holidays, six nights in the October 2017 school holidays and as of the Christmas school holidays commencing in December 2017, one half of the Christmas holidays on a week-about basis.
Both parties also sought orders that would provide for X to spend time with them on special occasions such as Christmas, her birthday, her parent’s birthdays and Mother’s Day and the applicant also sought leave to travel to (country omitted) with X.
I find that it is inherent in the proposals of each of the parties that they acknowledge that it is to the benefit of X to have a meaningful relationship with the other of them.
I find that X has a good relationship with both of her parents and that it is to her benefit to have a meaningful relationship with both parents.

b) the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse neglect or family violence.

This factor was not part of either party’s case and there was no evidence to suggest that X is at any risk in the care of either of her parents.

Section 60CC(3) – Additional Considerations

a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.

At the time of trial X was only aged 4 years and 7 months. In those circumstances I do not consider that this factor is of significance.

b) the nature of the relationship of the children with:

each of the child’s parents; and

any other persons (including any grandparent or other relative of the child).

In this matter an expert report was prepared by Ms M. The report was dated 3 April 2016 and was prepared after interviews with the parties, a brief interview with X, observed interaction between X and each of her parents as well as the applicant’s partner and the applicant’s mother and a brief interview with the applicant’s partner.
It was not surprising, taking into account X’s age, that there was little assistance to the court arising from Ms M’s brief discussion with X. However what was clear from the observed interaction of X with each of her parents is that she demonstrated a comfortable and loving relationship with each of them, with Ms M also commenting on X’s good relationship with the applicant’s partner and with the maternal grandmother.
Ms M commented on page 13 of her report that “it is probably true that her primary attachment has been and is with Ms Godfrey.” She made that comment in the context of her views as to X ultimately building up an equally strong and important attachment with the applicant, and the need for her to spend substantial time with the applicant to enable that to occur.
There is no doubt that X loves each of her parents and that she has a good relationship with the applicant’s partner and the respondent’s partner Ms W. At the time of trial the respondent and her partner were not living in the same premises on a full-time basis but were spending regular time together, which time included Ms W’s two children A aged 6 at the time of trial and B aged 5 at the time of trial.
It was the evidence of the respondent and Ms W that X got on well with those two children and I accept that evidence.
I accept the evidence of Ms M as to the good relationship between X and the applicants partner Ms B, as well as the respondent’s mother.
I am satisfied that both the applicant and the respondent love X very much but also that for the majority of X’s life, at least since the age of eight months, she has primarily been dependent on the respondent for the majority of her needs.
Taking all of those matters into account I find that the court should be careful to ensure that any changes made to X’s day-to-day living arrangements between her parents households should be sensitive to her young age and the need for her to adapt to change at a pace that she can manage.
It was clear from the parties’ presentation and their evidence that the personalities of the applicant and the respondent were vastly different. The applicant presented as having a much more “black and white” forthright approach to life and a confidence that was not matched by the respondent.
The tenor of the respondent’s evidence and her answers in cross-examination strongly pointed to a perception on her part that the applicant was intruding on her life and was “badgering” her with respect to her care of X generally but in particular the issue of the time X should spend with the applicant.
Observation of the applicant in the witness box in cross-examination suggested reasonable a basis for the respondent’s perception. I find that the applicant was frequently unnecessarily critical of the respondent and found it very difficult to acknowledge anything positive as to her parenting capacity. It was her view that the respondent was hampered at many levels by anxiety, and it was clear that she had no insight in to any contribution she may have made towards the respondent’s anxiety.
The court has to take into account the impact on X of two very differing personalities in her parents and the impact that may have on her when strengthening her bonds with each of her parents. I am satisfied that X would find in the respondent a more sympathetic parent but by the same token the applicant’s skill in being more directive towards X may be of benefit to her in helping to define behavioural boundaries.

Taking all of those matters into account I find that the nature of X’s relationship with each of her parents is strong but almost certainly different, with the differences in all likelihood benefitting X’s ability to form a well-rounded personality.

c) the extent to which each of the child’s parents has taken or failed to take the opportunities:

to participate in make decisions about major long term issues in relation to the children;

to spend time with the children; and

(iii) to communicate with the child.

In this matter it is clear that both parents have taken every opportunity available to spend time with X and to communicate with her.
At the time of trial the only live major long-term issue was where X was going to commence attending at school. The applicant wanted her to attend at school at either (omitted) Primary School or another primary school that is a feeder school to (omitted) High School. The respondent wanted X to commence and continue her primary school education at (omitted) Primary School.
The applicant’s evidence in relation to this issue was contained in paragraphs 130 to 147 of her trial affidavit filed 8 August 2016. She deposed to X commencing at a childcare centre in (omitted) in 2013 and remaining there to the end of 2014. She deposed to X commencing at Adelaide (omitted) School in January 2015 but to the parties agreeing to transfer her to (omitted) after the July 2015 school holidays. At the time of trial X was attending at the (omitted) Kindergarten on Monday’s and Wednesday’s.
The respondent’s evidence was contained in paragraphs 238 to 250 of her trial affidavit. There was no issue as to X’s attendances at the various educational institutions referred to by the applicant, although the respondent deposed to finding the applicant very controlling when the parties clearly had a dispute with the (omitted) School in 2015.
The applicant deposed to the respondent making a number of important decisions about X’s care and particularly her education without consultation with the applicant, and to the parties deciding on a private education prior to X’s birth. The respondent agreed in the main as to that course being ideal but deposed to the issue of affordability and the parties both feeling that (omitted) private education did not correlate with their lifestyles or beliefs.
The applicant deposed to the parties considering various schools and to the respondent being very impressed with (omitted) Primary School to which she, the applicant, was not committed. It was the respondent’s evidence that the parties had agreed in early 2015 that X would attend at (omitted) and that she, the respondent, would move into the school zone.
The applicant deposed to the respondent agreeing to attend some tours of local (omitted) primary schools in the latter part of 2015 with the respondent deposing to agreeing to do so even though she and the applicant had agreed by then on (omitted) Primary School. Both parties deposed to various meetings and discussions about different schools.
It was common ground that in October 2015 the respondent moved into premises in the (omitted) School zone and it was the respondent’s evidence that when she informed the applicant of that move she was surprised that the applicant advised her that she was not yet “set on” (omitted) School. Ultimately both parties signed the enrolment forms for (omitted) Primary School after meeting to check through the form and sign it in or about May 2016.
The applicant then deposed to the respondent deciding to move to (omitted)’s and wanting X to go to (omitted) Primary School as and from 2017. This was confirmed by the respondent in her trial affidavit in paragraph 267 and following. (omitted) Primary School is the school attended by the respondent’s partner Ms W’s children, who as at the commencement of 2017 were going to be in Year 4 and Reception respectively at that school.
The parties were simply unable to reach agreement in relation to that issue and it was for that reason that the court determined, for oral reasons given on 25 January 2017 that X should attend at (omitted) Primary School.
I am satisfied that each of the parties had firmly held views in relation to where X should attend at school, that the respondent’s personal circumstances changed in the latter part of 2016 which underpinned a change in her position with respect to X’s schooling and that both parents did their best to participate in discussions to try and resolve that educational issue.
Both parties participated in the decision making process, notwithstanding their inability to reach agreement. They were both genuinely interested in X’s education.

ca) the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents obligations to maintain the child.

It was the applicant’s case that she had paid the initial IVF costs with respect to X in the sum of some $10,000.00 and that she was the primary bread winner during the nine weeks after X’s premature birth until she came home from hospital.
She deposed to paying an average of $380.00 per month child support and paying the majority of X’s medical expenses since separation.
She deposed to supporting the respondent financially by paying all mortgage repayments until their house was sold in June 2013 and to settling an $8,000.00 credit card debt of the respondent’s as well as leaving her with joint property worth approximately $20,000.00 and buying essentials such as nappies and clothes for X.
She deposed to paying half of X’s kindergarten fees, private health cover for X and offering to pay a significant proportion of costs associated with joint counselling for the parties.
In her trial affidavit and in reply the respondent deposed to the IVF costs being funded by refinancing a joint mortgage and to the mortgage payments being made jointly. She deposed to being in receipt of fulltime maternity pay during the time that X was in hospital for the first nine weeks or so of her life and to the applicant being unemployed for several months prior to X’s birth and for the majority of the pregnancy.
The applicant deposed in her affidavit in reply to being unemployed from November 2011 to 4 January 2012.
The respondent deposed in paragraphs 153 and following to the applicant only bringing child support arrears up to date after she filed her application in these proceedings and to the applicant only paying the full mortgage payments between October 2012 and January 2013, at which stage she deposed to recommencing paying half of the mortgage payments.
She deposed to the $8,000.00 owing on her credit card being a joint liability accrued during the relationship and to the applicant receiving more of the sale proceeds from the sale of the property upon the party’s separation.
She deposed to the applicant refusing to contribute towards the costs of X’s childcare or education until 1 February 2016 and to she, the respondent, paying an extra $100.00 per month costs for the few months that X attended at the (omitted) institution.
In paragraph 188 of her trial affidavit the applicant said as follows:
“although I have never raised it I am concerned that money is a contributing factor to Ms Godfrey refusing an increase in time. One more overnight in my care in the fortnight would see the child support payment to Ms Godfrey drop around $100 per month.”
She also commented in paragraph 189 to the orders for X’s time with each parent, consented to in December 2015, saving the respondent childcare costs. In cross-examination the applicant said that her views were not a new issue but rather she had thought about it for a long time. When it was put to her that it was her view that the respondent was not motivated by X’s best interests in her proposals but rather financial aspects she responded that that was “part of it.”
She agreed that the respondent had never said anything to her to support that view and when she was asked by the court why she had formed that idea she responded that it was simply the level of the respondent’s refusal to ever offer for X to spend extra time with her.
She was asked by the respondent’s counsel whether she was over-thinking things and replied that she wasn’t but that child support would change and agreed that she was the only person who had raised child support as an issue. She agreed that the respondent had never said anything to her about childcare costs being a motivator for the consent order of 2015.
I am satisfied that both parties have fulfilled their obligations to maintain X and I find no evidence to support any view that the respondent’s proposals with respect to X’s time with each parent is motivated in any way by issues of child support.
I find the applicant’s attitude in that regard to be an implied and unnecessary criticism of the respondent, unsupported by any evidence but indicative of what I find to be an overall lack of respect for the respondent.

d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any:

either of his or her parents; and

any other child, or other person (including any grandparent or other relative of the child) with whom she or he has been living.

In Ms M’s report under the heading “Key Issues” on page 13 she noted in her opinion that overall X was progressing well and had no major issues. She said the exception to that was that her parents were fighting and in conflict.
I have already referred to the positive comments and opinions Ms M expressed in her report as to the good and comfortable relationship X demonstrated with each of her parents and their loving and positive relationship with her.
It was Ms M’s view however that X’s attachment with the applicant could not build up to be as strong as that with the respondent if she did not spend substantial time with the applicant and have the applicant significantly involved in her life. These matters were raised under the heading of “Key Issues”.
She expressed on page 13 of her report that she wanted to support the initial directions expressed by both of the parties, which she understood to be a goal of X spending equal time with each of them.
I think it is important at this time to note that I neither read nor heard any evidence from either party that could lead me to a conclusion that an arrangement of equal shared parenting time for X was ever a “goal” of the parties.
I find it was certainly a goal of the applicant and one she pursued up to and including at trial with vigour.
I find that the respondent never aspired to that goal, that the applicant was aware of her opposition and that any concessions the respondent appeared to make from time to time to either the applicant or to Ms M were as a result of her feeling overwhelmed by the applicant and trying to be reasonable to Ms M.
I find that both of these scenarios were informed by her underlying anxiety and her wish to avoid a trial.
In terms of the impact on X on any change in her circumstances Ms M said on page 13:
“It is not clear yet whether exactly equal time will suit X, but we have no reason at this point to think that it will not, providing the parents prioritise X’s need for a context of harmony rather than conflict. I think there is value at this time in maintaining the trajectory of equal time and moving in that direction while setting up a process that allows some evaluation of how well this suits X. As suggested below, the next step is to add in another overnight so that X gets to the point of spending five overnights per fortnight with Ms Meskin. Then we could review the matter and consider the next step.”
She goes on to discuss what she considers might be a workable regime for X on pages 13 and 14 before coming to her recommendations on page 15. Her recommendations involve an extension of time for X with the applicant, with the parties to return for review. That recommendation is of course in itself unhelpful in circumstances where the court does not have the luxury of bringing the matter back before it at regular intervals to assess the progress of a child’s time with a parent.
Ms M was cross-examined by both of the parties counsel. It was put to Ms M by counsel for the applicant that in circumstances where the court is generally required to make final orders there was a problem with a review and therefore in those circumstances how did she consider things should progress.
Ms M said in reply that on what had been put to her by counsel (suggestions of some improvement in communication between the parents) she really didn’t know how things should progress but that X connected well with both of her parents and she saw no real obstacle for a sixth night to be built into the parenting arrangement in favour of the applicant. She was however concerned about one issue, namely conflict between the parties.
She said that was why she had suggested that the parties attend at counselling. It was her view that if they could manage each other than six nights with the applicant and eight nights with the respondent in each fortnight would be manageable for X, but if there was “World War III” six nights with the applicant would not be appropriate for X but five nights per fortnight would still work well for her.
She was further cross-examined by Ms Ross as to possible schedules. When it was put to her that the respondent was still arguing that she found communication from the applicant very difficult and entries from her in the communication book bullying, harassing and intrusive, she confirmed that she had had an opportunity to read parts of the communication book. She expressed that her view of the tone and content of the applicant’s entries was that there was too many words and that she just needed to exchange relevant information. She agreed that such an approach should apply to both parties.
When she was asked if she thought the tone of the applicant’s communications were bullying, she replied that she did not see that herself but could see that the respondent may read into the communication pressure from the applicant.
Ms Ross put to the witness evidence of recent respectful communications between the parties, including talking at the respondent’s home for about ten minutes fairly proximate to trial, and asked if she considered communication between the two parents to be healthy enough to support a parenting regime of equal shared time.
Ms M’s response was that it may be but if the respondent was very opposed to such a regime such that a breakdown in communication was caused that would not be good for X, although if things kept going as it was put to her they had been it would be more manageable.
Ms Cox, counsel for the respondent, also cross-examined Ms M. She asked whether when she prepared her report she had done so on the assumption that at an earlier time there had been agreement between the parties towards a common goal of equal shared parenting time. Ms M replied that she did not understand that there was a hard and fast agreement but that the parties had perhaps talked of possibly moving towards that end. She knew however by the time of the report that the respondent was not open to that possibility.
She was asked whether the theme of the report was how to get to an outcome of X having equal time with each parent, not whether to get to that outcome. She replied that at the time of preparing the report she was thinking about how to get X to have an extra night with the applicant and see how she went. She said she thought that the common ground was almost equal parenting time. She said she did not commence her report with that end in sight.
She agreed that the respondent had told her that she agreed to an extension of X’s time to appease the applicant and said that the respondent had talked to her of being bullied and stressed. She agreed that for parents to successfully have an equal shared care time arrangement they both needed to be heard, and she agreed generally to suggestions put to her by the respondent’s counsel that respectful communication was very important. She acknowledged the parties had had differences but had the view that things could settle down.
She agreed that if the court found some substance to the idea that the applicant’s behaviour as perceived by the respondent would continue it was a matter for the court to take into account.
Ms M agreed that overall quality of the relationship between X and the applicant was more important than quantity and that for her to spend five nights each fortnight and half of the school holidays with her would provide reasonable connection between X and the applicant over the years.
Ms M accepted that when she described the respondent as becoming teary on page 5 of her report, the respondent was genuinely distressed and she agreed that the respondent should receive credit for promoting the relationship between X and the applicant, particularly when separation occurred when X was only eight months old.
I find that X has a good relationship with both of her parents and their respective partners as well as extended family members. There was evidence of X spending time with the applicant’s extended family from a very young age as well as her connection with the respondent’s family.
I find that having had the opportunity to observe the demeanour of both of the parties in the witness box over several days I was less optimistic than Ms M as to their capacity to protect X from conflict in the future.
I find that the parties have vastly different personalities and that it was apparent from their demeanour that the respondent struggled with what she perceived to be an overbearing attitude towards her by the applicant.
Nevertheless, I am satisfied that these are two loving parents who in their own ways do their best to be civil and polite to the other and to resolve issues notwithstanding that they are not always successful. I find that X could satisfactorily transition in her care arrangements to spend more of her time with the applicant without any adverse effects.

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.

This factor is not relevant in these proceedings.

f) the capacity of:

each of the children’s parents; and

any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.

I am satisfied on the evidence of the parties that both are well equipped to provide for all of X’s physical needs. I am satisfied that the parties were historically both involved in all aspects of X’s childcare and early learning education. There was however an element of concern as to their capacity to appropriately manage the involvement of each of them in X’s ongoing education.
The applicant was opposed to the respondent’s changed idea of where X should attend at school, initially because it was out of the way from where she lived and worked, was not particularly close to the respondent’s work and did not feed into (omitted) High School.
The applicant also deposed to the respondent booking a parent/teacher interview at X’s kindergarten at the beginning of Term 3 and to the respondent not discussing with her a suitable time for them both to attend at the parent/teacher interview or to discuss what topics should be raised with X’s teachers. These matters were raised in paragraphs 146 and 147 of her trial affidavit.
In paragraph 164 of that same trial affidavit she deposed to her concern that because the respondent’s partner’s children attend at (omitted) Primary School and the partner had been part of the school community for three years, she believed it would be difficult for her to break into the community. She said she felt it was an attempt by the respondent to minimise her relationship with X.

She went on to say in paragraph 166 of the affidavit that she was concerned that if X was living with the respondent’s partner’s two children and going to school with them, she would not have the opportunity to develop connections independent of the respondent’s partner’s family.
She expressed the view in paragraph 167 of her trial affidavit that in order for to have an active role in X’s education, the school that X attended needed to be independent of the respondent’s relationship and her partner’s children.
In the respondent’s trial affidavit and in response to that evidence she confirmed that her partners children would be commencing at (omitted) Primary School and expressed her intention to request that X and B, who would both be commencing Reception, were not in the same class so that there was some separation between home and school to enable individual growth and friendships to occur. It was her view that that would also minimise any discomfort the applicant may feel when dropping X off or collecting her from school.
She expressed her view that from her perspective it was important that X feel part of her school community and the community that she lived in and also that (omitted) Primary School was close to family friends who would be sending their son to school there in a couple of years. She expressed her hope that the applicant would be involved in X’s education at school as much as possible. Those matters were canvassed by the respondent in paragraphs 267 to 273 of her trial affidavit.
She expressed concern in paragraphs 280, 281 and 282 of her trial affidavit about the applicant speaking over her at a joint parent/teacher interview at X’s kindergarten in August 2016, and expressed her view that if the applicant wanted to attend joint meetings and have an open and inclusive co-parenting relationship she, that is the respondent, needed to feel comfortable in asking questions of the teacher.
In paragraph 287 of the respondent’s trial affidavit, she deposed to always attempting to support X’s relationship with the applicant and her partner Ms R and to having invited both of them to all of X’s music and piano concerts and to volunteer at a kindergarten disco but they chose not to attend.
In the applicant’s affidavit in reply she denied in paragraph 30 that the respondent encouraged her and her partner to volunteer for the kindergarten disco and deposed to finding out about the disco in the kindy newsletter and putting a note in the communication book to ask the respondent whether she was attending.
She deposed to the respondent replying that she had already purchased tickets for her, her partner and her partner’s children A and B to attend as a family and the applicant deposed to not then feeling welcome and choosing for her and her partner not to attend. She said that whenever her partner attended events the respondent would not acknowledge her.
The applicant was cross-examined about the issue of the “kindy disco”. It was put to her that the respondent had invited her to all of X’s concerts and other school activities. The applicant very grudgingly agreed to that proposition saying that it had often occurred because X was in their care on relevant occasions and so the respondent had to do that.
She also grudgingly conceded that the respondent, in the communication book, had encouraged her to help out at the disco. When it was then put to her that the contents of paragraph 30 of her affidavit in reply were incorrect she responded that the issue was more about her wanting to ask questions of the respondent about X going to the disco and the issue of she and the respondent deciding as a family before making decisions about other people going. When she was asked what the problem really was, she said there was none but it would be nice to discuss issues of attendance before buying tickets.
I find that was an example of the applicant being angry with the respondent and placing her anger and her need to control situations above X’s best interests who clearly, taking into account her excellent relationship with both of her parents, would have preferred to see them both at the disco and have the opportunity to enjoy the event with both of them.
It is of some concern that if that attitude was to continue it may impact on the applicant’s ability to act cooperatively with respect to X’s school arrangements, although I am satisfied that overall she is very interested in X’s education.
What also concerned me was the ability of the applicant to provide for X’s emotional needs. Overall the tenor of the applicant’s evidence both in her affidavit and in many of her answers in cross-examination was critical of the respondent and what she considered to be the respondent’s undermining of X’s relation with her.
She had formed the view that the respondent excluded her from decisions about X’s parenting, did not provide her with sufficient information about the progress of her new relationship and how X was responding to the new domestic circumstances and undermined her style of discipline.
She deposed in her trial affidavit to numerous instances where she considered the respondent had unnecessarily prolonged handovers or been uncooperative such that X either became distressed or her distress was aggravated by the actions of the respondent.
She deposed to an incident on 12 September 2015 when X refused to speak to her or any of the staff members at the (omitted) Kindergarten orientation day and to that behaviour being reinforced by the respondent holding onto X and not talking through her concerns.
In response in paragraphs 201 and following of the respondent’s affidavit she acknowledged that X was often clingy towards her in new situations, that it was an orientation visit to the (omitted) Kindergarten and that she was concerned to ensure that the experience was positive for X rather than trying to “force her to engage with Ms Meskin”.
She deposed to X relaxing after the applicant left the orientation. She deposed to the applicant criticising her behaviour in the communication book on 12 September 2015 (annexure “G9”) wherein the applicant said:
“in regards to her behaviour today at (omitted), I feel like I need more support from you in these situations. I don’t feel it is appropriate to pander to her demands. In hindsight I should have just removed her and spoken to her properly, she wasn’t just rude to me but Ms S also, she is capable of better. She is not a shy girl, and even if she is she needs to be polite no matter what. Also, yes, she was born premature but this had zero bearing on her health. She had normal kid problems with her ears and has fantastic speech. Saying otherwise is a disservice to her and for her to hear that every time you talk to an educator is setting her up to feel delayed or inferior when she is not in any way.”
The respondent deposed to being aware of the stress that can be caused to children as a result of prolonged handovers and it was her evidence that she attempted to balance “settling” X and leaving as soon as possible.
Ms Godfrey acknowledged in her trial affidavit issues that she has had with her mental health over the years and the counselling and medication that she had from time to time. She also acknowledged how very distressed she was upon the breakdown of the relationship between her and the applicant.
She deposed to feeling overwhelmed by the level of detail sought from her by the applicant with regard to almost every aspect of her and X’s lives. She said she wished to amicably co-parent with the applicant but that she found it difficult when her efforts to respond to the applicant’s demands for information and detailed consultation were usually met with disapproval. This of course included her resistance to X spending as much time with the applicant as requested by her.
What was concerning was the emphasis placed by the applicant in her evidence in chief and in cross-examination on the respondent’s mental health issues and ongoing anxiety. At times she found it very difficult to say anything positive about the respondent that did not have an element of “paying lip service” to her confidence in the respondent’s parenting capacities.
These issues were also raised by the applicant in her discussions with Ms M, as were her concerns about the respondent not giving her sufficient information in response to questions that she asked of the respondent about X and about the respondent’s life and personal details.
Ms M discussed with both of the parties the issue of their differing personalities and parenting practices. That issue was abundantly clear from the parties’ presentation in the witness box and the tenor of the evidence.
I find that the respondent genuinely felt bullied and harassed by the applicant from the time of separation with respect to entering into a parenting arrangement leading to X eventually spending equal time in each of their households.
I accept that at no time has she ever felt that such an arrangement was in X’s best interests and that the applicant was aware of that, as conceded to and reported by Ms M.
Examples of email correspondence between the parties as annexed to the respondent’s trial affidavit in particular indicates an overwhelming intrusion by the applicant into the respondent’s day-to-day life and parenting of X. The correspondence, when considered with the applicant’s evidence and demeanour is suggestive of a wish to be in control of the co-parenting arrangements.
I find that the respondent reasonably felt harassed by the applicant in circumstances where the applicant made it abundantly clear to her that she would never desist from efforts to achieve her aim of equal shared parenting time.
The applicant was aware of the more fragile state of the respondent’s mental health. She was also aware at all times that X’s primary care had to the date of trial by virtue of the parenting orders in place, always been with the respondent.
My concern as to the capacity of the applicant to provide for X’s emotional needs arises from what I find to be determined efforts by her to pressure the respondent into agreeing to a progression to equal shared parenting time. I find that this behaviour in turn increased the respondent’s susceptibility to anxiety. This of course has at least the possibility of impacting on her parenting capacity.
Such conduct on the part of the applicant is indicative of a determination to put her desire to achieve her aim ahead of careful thought as to the possible impact of her behaviour, albeit indirectly, on X’s emotional health.

g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.

X loves both of her parents. Her parents have vastly different personalities and approaches to life’s issues. Both the applicant and the respondent see X as a determined little girl. Both of her parents have re-partnered, X has a good relationship with both of her parents’ new partners and with the respondent’s new partner’s children. X has an opportunity to mix with extended family in the care of each of her parents.
I am satisfied that X has much to learn from being able to spend significant time in the care of each of her parents and extended families and in doing so will have the opportunity to discover for herself different approaches to life’s challenges and complexities.
The fact that her parents’ personalities are so very different will of itself provide opportunity for her to develop an ability to maximise her skill base as she matures.

h) if the child is an Aboriginal child or a Torres Strait Islander child:

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

the likely impact any proposed parenting order under this Part will have on that right.

This factor is not relevant in these proceedings.

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

Both the applicant and the respondent love X. They have at all times used their best endeavours to attend to the responsibilities of parenthood to the extent of their respective abilities. They are hampered however in doing so because of the applicant’s difficulty in accepting that the respondent is a competent parent who is not attempting to excise the applicant from a meaningful role in X’s life.
I find that the respondent’s reluctance to engage in a high level of communication with the applicant arises because of her perception that the applicant is bullying towards her in terms of the level of information she seeks from the respondent as to her own personal affairs and X’s life in her care.
It is not difficult to see from the demeanour of the parties and from their evidence how their attitudes each to the other developed. An important responsibility of parenthood is that parents ensure they give children the ability to have a close and meaningful relationship with their other parent without engendering any feelings of disloyalty.
If the parents in this particular matter are unable to find a way to improve the state of their co-parenting relationship, it may eventually come to the point where X determines that to protect her own emotional wellbeing she will have to take sides. That would be very unfortunate and an outcome that would not be in her best interests.
The reality is that whatever criticisms the parents each have of the other in this matter, X is a lovely child who is progressing satisfactorily in the care of each of them, and in her education and she appears to be a child who is socially adept.
She has spent the majority of her time to date in the care of the respondent but significant time in the care of the applicant. She has a close and loving relationship with both. That of itself is indicative that each of the applicant and respondent must have provided an appropriate nurturing and loving environment for X, which has enabled her to develop and maintain such close relationships with each parent.
I do not find there is any basis for the applicant’s numerous criticisms of the respondent as to her alleged attempts to minimise the role of the applicant in X’s life. If the respondent had followed that course of action, X would not have the relationship with the applicant that she had at the time of trial.
Both the applicant and the respondent are completely capable parents, save that they are not able to communicate effectively with the other.
I find that the applicant’s complaints about the unreasonableness of the respondent’s attitude to her proposal for X to eventually live with each parent for equal time are without any proper basis.
Difficulties in communication never arise because of the actions of one person. Nevertheless, they frequently arise when there is at least from the perception of one or other of the parties involved, a “power imbalance”. I am satisfied that the parties ability to communicate effectively and thereby improve X’s quality of life would be assisted if the applicant ameliorated her attitude to the respondent to some degree such that the respondent genuinely believed her role as one of X’s parents was valued by the applicant. I find on her evidence and observation of her demeanour that in those circumstances, she would be far more open in her communication with the applicant.

j) any family violence involving the child or a member of the child’s family.

This factor is not relevant in these proceedings.

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:

the nature of the order;

the circumstances in which the order was made;

(iii)any evidence admitted in proceedings for the order;

any findings made by the Court in, or in proceedings for, the order; and
any other relevant matter.

This factor is not relevant in these proceedings.

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.

It is always to be hoped that parents will accept the determination of the court when they are unable to agree parenting issues, because to do otherwise continually subjects children to feelings of conflicted loyalty and insecurity if they perceive that they are the source of on-going conflict between their parents. X is yet very young but will become more aware of conflict between her parents if the issues to which I have already referred in terms of their communication do not improve.
It is difficult to make orders for very young children that will always be suitable for them in the long-term. Parent’s life circumstances change but that is not always sufficient for the court to see fit to interfere in existing parenting orders.
X loves both of her parents and has a good relationship with both of them. So long as she is confident that her parents are respectful towards each other and put her best interests above their own when necessary, it is unlikely that the court would ever need to interfere again in her parenting arrangements, but rather any changes would be respectfully and mutually negotiated.

m) any other fact or circumstance the Court thinks is relevant.

The court does not consider there are any other relevant circumstances in this matter.

Parental Responsibility

Parental responsibility is defined in section 61B of the Family Law Act[7] as follows:
“In this part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
[7] Family Law Act 1975 (as amended)
Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility. The section is in the following terms:
“This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”
Section 65DAE makes it clear that there is no need for parents to consult on issues that are not major long term issues. That section is in the following terms:
“If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major-long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.”
The most common issues that arise that require joint decisions to be made involve schools attended by children, observation of particular events, activities or customs that arise from particular religious and/or cultural beliefs and major health issues arising from serious ill health or accident.

The parents in this matter have agreed to an order for equal shared parental responsibility and I find that such an order is appropriate. Notwithstanding the issues of conflict to which I have referred, these are parties who in the main have consulted the other in relation to decisions to be made about long-term issues, particularly the issue of education to which I have referred, and I am satisfied that they made a genuine effort to come to a joint decision although ultimately they were unable to do so and the court was required to determine that issue.
The parents in this matter both appreciate that it is in X’s best interests to have a close and meaningful relationship with the other of them, even though they are not agreed as to the time that she should ideally spend with each of them to maximise the benefits of that relationship. I have found for reasons previously given herein that such a meaningful relationship is in X’s best interests.
I have referred earlier herein to the requirement for the court to consider, in circumstances of an order being made for equal shared parental responsibility, whether it is in the child’s best interests to spend equal time with his or her parents and whether it is reasonably practicable for that to occur. If the court is of the view that such an order is not in the child’s best interests it must, as a next step, decide whether it will be in the child’s best interests to spend substantial and significant time with each parent and whether that is reasonably practicable[8].
[8] Family Law Act 1975 (as amended) s.65DAA
Substantial time is defined in Section 65DAA(3) of the Family Law Act as including days that full on weekends and holidays, days that do not fall on weekends or holidays, and time that allows a parent to be involved in a child’s daily routine and occasions and events that are of particular significance to the child and the parents. That list of factors is not deemed to be exhaustive[9].
[9] Section 65DAA(4)
In determining whether an order is reasonably practical, the court has to consider how far away parents live from each other, their capacity to implement arrangements to support an order for equal shared or substantial and significant time and their current and future capacity to communicate and resolve issues, as well as the impact of an arrangement of that kind on the child and any other relevant matters the court deems relevant[10].
[10] Section 65DAA(5)
The orders proposed by each of the parties certainly include weekend time, non-weekend time, time on special on occasions for X and time on special occasions for each of the parents. In terms of reasonable practicality, the parents do not live a great distance from each other and they have already shown a capacity to implement an arrangement for X spending substantial and significant time with each of her parents, taking into account her young age.
I am concerned however about the capacity, both now and in the future, of the parties to communicate with each other and resolve difficulties that might arise in implementing an arrangement of equal shared parenting time.
Neither of the parties’ proposals of course include an immediate move to such an arrangement. The applicant’s proposal commences with an extension of the current four nights per fortnight to five nights per fortnight over a two weekly cycle for approximately three months, with an extension then to six nights per fortnight over a two weekly cycle for a further four months and thereafter for seven nights per fortnight again over a two weekly cycle.
Her proposal included increasing nights in a two weekly cycle during school holiday periods to six and then seven nights, with her proposal from the July 2017 school holidays being for time in school holidays on a week-on week-off basis.
Their proposals by the time of trial with respect to time on Christmas Eve, Christmas Day and Boxing Day in each year were effectively identical such that in one year X spend time with a parent from 3:00pm Christmas Eve to 3:00pm Christmas Day and in the following year 3:00pm Christmas Day to 3:00pm Boxing Day. They were also agreed effectively with respect to the time that X would spend with each of them on her birthday depending on whether it was a school day or a non-school day and on their own respective birthdays.
The applicant proposed time on Mother’s Day as agreed between the parties, with the respondent proposing the child spend from 10:00am to 2:00pm with the parent with whom she is not otherwise in the care for that day.
The applicant also proposed that she be able to take X for a holiday in (country omitted) in either the (omitted) 2017 school holidays for up to seven nights. In cross-examination the respondent said she considered such a holiday in (omitted) 2017 would be too early and that (omitted) 2017 would be a better time.
When she was asked whether she had any problem in principle with the applicant’s proposal, she replied that she was a bit nervous because of the nature of the country and X being very young and not having spent, certainly by the time of trial, a block of time that long with the applicant.
She also said that notwithstanding the orders sought by the applicant, she was only able to agree to X spending periods of five consecutive nights with the applicant. She ultimately said that if she was provided with all of the information and able to communicate by Facetime or Skype she did not oppose in principle X spending up to five nights in (country omitted).
The respondent’s proposal was that until the conclusion of Term 1 in 2017, X continue to spend four nights per fortnight with the applicant in accordance with the existing order and as from the commencement of Term 2 in 2017 the time extend to five nights in each two week cycle. She initially proposed school holiday time for up to four consecutive nights until the end of the 2016 school year and as from April 2017 six nights spread over the holiday period in each of the April, July and October 2017 school holidays and as of the December 2017 Christmas School Holiday period for half of the Christmas school holidays on a week-about basis. Both parties proposed specific provisions of course in relation to Christmas Eve, Christmas Day and Boxing Day. Her proposal was that as of 2018 short school holiday periods X’s time be divided equally with handovers on the middle Saturday.
Although many efforts have been made by both of the parties over the years to mediate outcomes to issues in dispute, such a process is usually only successful when there is what might be best described as a “level playing field.”
I have already referred to the very different personalities of each of the parties in this matter. The applicant is a person of firm opinion and very determined in her approach, and I find on the evidence, that she has been consistently determined to progress X’s time with her to absolutely equal shared parenting time from the time the parents separated when X was only eight months old.
The respondent is of a much more fragile personality. I have already referred to my findings as to the reasonableness of her feelings of having been bullied and harassed by the applicant. I have referred to accepting her evidence that earlier proposals for up to six nights per fortnight and discussions with Ms M as to the possibility of equal shared parenting time having come about because of feeling harassed by the applicant and wishing to appear very reasonable to the expert.
She clearly has a softer parenting approach to X than the applicant, with one example of that occurring when she took X to a birthday party and allowed her to have a chocolate frog when because of unacceptable behaviour to both the applicant and respondent the day before, she had agreed with the applicant that X should have no treats at the party. I accept that she determined that X is a child that behaviour issues arise from time to time but made a considered and measured decision on the day that X had not behaved so badly that punishment should be so severe.
That approach was disapproved of by the applicant and although it is not difficult to understand her perspective, the reality is that it is a more authoritarian approach to parenting, suggesting that X may find having equal time in each of her parents households puts her in a position of having to cope over greater periods of time with different parenting expectations. If X lives in circumstances where her parents have equal shared parental responsibility for major long-term issues but she spends greater day-to-day time in the care of the respondent, in accordance with her experiences to date, but substantial and significant increased time with the respondent, as proposed by the respondent, I find that X will be less exposed to having to navigate differing parental expectations of the various aspects of her day-to-day life.
I am pessimistic about the future success of mediations that may occur more frequently if X spends equal time in each household, thereby increasing the possibility of differences arising and problems having to be resolved.
I am concerned that the applicant’s determination in those circumstances would cause further stress and distress to the respondent and that the respondent is very likely to feel overborne by the applicant’s personality. This is likely to lead to her feeling insecure about her parenting and shutting down further in terms of communication with the applicant, which is not to the benefit of X.
I am satisfied that X can manage an increase in the time that she spends with the applicant with whom she has an excellent relationship. I note that the expert was of the view that she could cope with an arrangement ultimately of equal time with the applicant provided that communication between the parties improved and conflict decreased. For the reasons I have given, I am not satisfied that such an outcome is likely.
I have already commented on the very positive relationship that X has developed with the applicant during the regular time that she has spent with her since the parties separated when she was eight months old. It is a relationship of good quality.
I find that the increase in time proposed by the respondent meets the requirement of substantial and significant time, I find that the parties are not able to sustain and maintain a level of communication necessary to support equal shared parenting time and I find that the special occasion and school holiday time proposed by each of the parties provides for X to spend additional time with the applicant, which she will enjoy and from which she will benefit.
Taking all of those matters into account, I make the following orders.

I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 21 April 2017

[2017] FCCA 786

21 April 2017

Key Legal Topics

Areas of Law

Family Law