MEYER & SHIPTON (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEYER & SHIPTON (No.2)

[2013] FCCA 2198

Catchwords:
FAMILY LAW – Final arrangements for parenting of child now aged five years and two months – child has lived in a shared care regime since age of sixteen months – father lives in (omitted) – mother lives in (omitted) – two locations separated by distance of approximately ninety kilometres – child has lived week about in (omitted) and (omitted) for approximately three years – child due to commence primary school at the start of 2014 school year – which primary school child attends will determine with whom of his parents child will predominantly from end of January 2014 onwards – both parties seek to be primary residence provider for child – consent order made by Local Court in November 2010 – orders provided for child to attend school in (omitted) – application of rule in Rice & Asplund – mother asserts father coerced and controlled her during parties’ marriage and afterwards – nature of family violence – relevance of views of child given age and lack of maturity – insights into the responsibilities of being a parent – both parents well motivated and capable – any difference in their respective parenting capacity marginal – necessity to closely consider applicable section 60CC factors – whatever is outcome child will spend substantial and significant time with other parent – best interests.

Legislation:

Family Law Act 1975, ss.4, 60CC, 61DA, 65DAA

Rice & Asplund (1979) FLC 90-725
C D J v V A J (1998) FLC92-828
Meyer & Shipton [2013] FCCA 307
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461

Applicant:

MS MEYER

Respondent:

MR SHIPTON

File Number:

CAC 90 of 2013

Judgment of:

Judge Brown

Hearing dates:

13, 14 & 15 November 2013

Date of Last Submission:

15 November 2013

Delivered at:

Adelaide

Delivered on:

19 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Tonkin

Solicitors for the Applicant:

Elringtons

Counsel for the Respondent:

Mr Gill

Solicitors for the Respondent:

Dobinson Davey Clifford Simpson

ORDERS

Orders 8 to 15 of the orders entered into, by consent, at the Local Court at Wagga Wagga on 16 November 2010 be discharged.
The mother and father have equal shared parental responsibility for the child of the marriage X born (omitted) 2008 (hereinafter referred to as “X”).
X live with the father.
X spend time with the mother at such times as may be agreed between the parties and failing agreement as follows:
(a)During New South Wales school terms from 4:30pm Friday until 8:30am the following Monday, (or 8.30am the following Tuesday in the event of a public holiday) on each alternate weekend;
(b)From the start of term 2 in 2014 during school terms, in the other week of each fortnight, from 4:30pm on Wednesday until 8:30am the following Thursday;
(c)For one half of each school holiday period, the halves to be agreed between the parties and failing agreement to be with the mother in the first half of all school holiday periods commencing 2014 and each even year thereafter and the second half in the year commencing 2015 and each odd year thereafter, subject to the following arrangements in respect of Christmas;
(d)From 5:00pm on Christmas Eve until 3:00pm Christmas Day in the year commencing 2013 and each odd ending year thereafter;
(e)From 3:00pm on Christmas Day until 5:00pm Boxing Day in the year commencing 2014 and each even year thereafter;
(f)Each alternate Easter in the years ending in an odd number;
(g)Each Mother’s Day weekend from 4:00pm Friday until 8:30am the following Monday.
In the event that X’s time with his mother falls on the weekend of Father’s Day, the mother’s time with the child will be suspended for Father’s Day weekend only an in lieu thereof she will spend time with the child on the preceding weekend.
The father be authorised by this order to enrol the child at (omitted) Primary School for his primary education commencing in term one of 2014.
Wherever possible the child is to be exchanged between the parties, to give effect to order 4 hereof, at his school in (omitted), unless the parties agree on some other location and in default of agreement and when the school is not available the child is to be exchanged at (omitted).
Each of the parties take all reasonable steps to ensure that X regularly communicates with the other parent, such communication to include email, telephone, and visual internet contact (for example, Skype) and each party is responsible for the cost of purchasing, installing and maintaining the required telephonic, computer and internet access and equipment at their respective homes and other places to facilitate such communication.
Both parents be permitted to liaise directly with the child’s school and sporting bodies and receive any notices, information, newsletters, school reports, order forms for the child’s photographs, information about X’s progress at school, parent/teacher appointments and information about extracurricular activities involving X.
Each parent is at liberty to attend the child’s school for the purpose of any function to which parents are normally invited to attend.
Each party keep the other informed of changes to X’s health while X is in their care and as soon as practicable notify the other parent of any medical emergency involving X and keep the other parent informed of all medical treatment prescribed for X.
All applications herein be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 90 of 2013

MS MEYER

Applicant

And

MR SHIPTON

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment are concerned with the adjudication of a difficult parenting case, involving relocation and educational issues, within the context of a long standing shared parenting regime for a relatively young child.
Ms Meyer “the mother” and Mr Shipton “the father” are the parents of X, born (omitted) 2008. Accordingly, at the time of judgment, X is five years and two months old. He must commence his primary school education at the start of 2014.
The parties both have significant ties to (omitted), where each grew up and went to school and where indeed they themselves met and began to live together, in early 2004. They married, in (omitted), on 18 February 2006. Mr Shipton continues to live in (omitted).
Both Ms Meyer and Mr Shipton acknowledge that their marriage was frequently unhappy and they argued often. However, they have different views as to what caused the conflict in their marriage and how each responded to it.
From the mother’s perspective, there was a clear power imbalance in the parties' marriage. She categorises Mr Shipton as a domineering bully, who exerted control over her through various forms of coercive behaviour.
Mr Shipton does not accept this characterisation of his behaviour. Rather, it is his position that, in the difficult circumstances of an unhappy relationship, both parties behaved badly, from time to time, in reaction to their conflicted circumstances.
From the father’s perspective, one of the challenges, arising in the parties' marriage, arose when the mother joined the (employer omitted), in 2007, following the completion of an (omitted qualifications) in (course omitted).
Ms Meyer did not wish to be a (occupation omitted) in (omitted), where she was concerned that she would have to exercise authority in respect of people she knew well through her community ties in (omitted). For these understandable reasons, she sought a posting at the (employer omitted) .
(omitted) is approximately 93 kilometres south west of (omitted). It is a drive of about an hour, largely along the (omitted) Highway. When one considers the size of continental Australia, it is a trifling distance. When one considers the day to day issues arising from the parenting of a primary school child, it is a significant distance.
Throughout the period of the parties' marriage, apart from a period of six months maternity leave and a three month secondment to the (omitted) in (omitted), Ms Meyer commuted between the parties’ former marital home in (omitted) and her job in (omitted) on a regular basis.
Mr Shipton is a (occupation omitted), who has been employed by (employer omitted) and based in (omitted) for over eighteen years. Mr Shipton’s parents live in (omitted), as do his sister and a close cousin. As a consequence, X has many relatives in (omitted), including children, to whom he is close. Mr Shipton’s life is based in (omitted) and he has no desire to live anywhere else.
The parties finally separated, in difficult circumstances, on 12 February 2010 when X was around sixteen months of age. At the time, the parties were living at their former family home situated at Property A. It was subject to a large mortgage.
The separation had serious financial implications for both parties, particularly in the context of their joint mortgage commitments and in respect of the repayments required to be made on a joint car loan. In addition, there were the complexities of ongoing parenting arrangements for X, in circumstances where both his parents were engaged in full-time employment. It must have been a difficult time for all concerned.
At separation, Ms Meyer moved in with her mother, Ms B. Ms B lives in (omitted), which is a suburb of (omitted). Although the two were close and continue to be so, it was difficult for Ms Meyer to live with her mother. She wanted to secure her own accommodation.
In March of 2010, she found a unit in (omitted), which was suitable for her needs and which she wished to buy. She exchanged contracts, in respect of the property, on 20 May 2010. She borrowed $50,000.00 from her father to use as a deposit. She needed to disentangle her financial affairs, with Mr Shipton and extricate her capital entitlements from the jointly owned Property A property.
Prior to the parties’ separation, Ms Meyer would categorise herself as having been X’s primary carer. She does however acknowledge that, due to her work commitments, Mr Shipton played a significant role in providing for X’s day to day care, from the period of his early infancy.
It is Mr Shipton’s view that he and Ms Meyer essentially provided equal levels of care for X. It is his case that he organised his work to fit in with Ms Meyer’s often long shifts, in (omitted), to ensure one parent was always available to care for X. In addition, from time to time, X was placed in day care or was cared for by another member of his extended family.
In these circumstances, it is common ground between the parties, that from the time of their final separation, X was parented in an equal time regime, moving between his parents’ respective homes regularly. However, notwithstanding this arrangement, for X, relations between the parties remained tense and difficult, particularly as they continue to work through the financial issues arising from their separation.
It is Ms Meyer’s position that Mr Shipton insisted that there be a formal document dealing with both final arrangements for the division of marital property and parenting arrangements for X. It is her case that, due to the settlement of the purchase of her property in (omitted), she was under a degree of financial pressure, particularly in respect of repaying the moneys borrowed from her father.
Ultimately, a raft of orders, in respect of both property and parenting orders, was made by the Local Court at Wagga Wagga on 16 November 2010. Ostensibly, the orders were made with the consent of each of the parties and after both had received independent legal advice.
It is now Ms Meyer’s position that she agreed to the orders against her better judgment and subject to duress applied by Mr Shipton, which replicated his coercive and controlling behaviour towards her, during the currency of the parties’ marriage.
It is Ms Meyer’s evidence that, during the process of negotiation between the parties, Mr Shipton insisted that she pay one half of the mortgage payments and other outgoings arising in respect of the former matrimonial home in (omitted). This placed her under an extreme level of financial pressure, particularly when she was liable to purchase her own property in (omitted).
In this context, she asserts that Mr Shipton informed her in a conversation occurring shortly after she had told him of her intention to purchase in (omitted) that he would assist her in the fulfilment of her plans to purchase in (omitted) only as long as she agreed for X to go to school in (omitted).
Mr Shipton denies that the intent of the conversation was to coerce Ms Meyer, in any way. It is his position that the consent orders were negotiated on a level playing field and Ms Meyer clearly understood the import of the orders concerned.
In the context of the current dispute between the parties, the relevant orders are as follows:
“The child X born (omitted) 2008 (“X”) live with the mother and the father on a weekabout basis.
The parties have equal shared parental responsibility for X.
…
From 1 January 2014, X shall reside in (omitted) in the State of New South Wales.
In the event that the mother and father are residing in (omitted) from 1 January 2014, the weekabout arrangement shall continue in place.
In the event that either party does not reside in (omitted) from 1 January 2014, X shall reside with the parent who continues to reside in (omitted) and shall spend time with the other parent as agreed.
X shall attend school in (omitted).”
The orders also provided for Mr Shipton to pay Ms Meyer the sum of $50,000.00 in consideration of her transferring to him her interest in the former matrimonial home in (omitted). In addition, he was to transfer a motor vehicle to Ms M and discharge the loan in respect of it.
Following the making of the orders, on 16 November 2010, until the present time, X has been parented in an equal time regime, moving between his parents’ respective homes, in (omitted) and (omitted), on a weekly basis.
Regrettably, there has been little improvement in the parties’ facility to communicate with one another. They rarely talk face to face and, at best, information pertaining to X is exchanged between them in text messages (often terse and vitriolic) and emails.
The week about regime, with X moving regularly between his mother’s home in (omitted) and his father’s home in (omitted), has been in place for well over three years. Given X’s age when it began, it is likely to be the only arrangement for his care that he can remember. As such, it is the reality of his life.
Given that X must start primary school, in 2014, it is common ground between the parties that the week about regime cannot continue, if Mr Shipton continues to live in (omitted) and Ms Meyer continues to live in (omitted) or close by in (omitted). This is the background to the dilemma currently confronting both the parties themselves and the court.
Mr Shipton has sold the former matrimonial home and purchased a new home, located at Property B. His work, family and interests are centred in (omitted). He does not wish to move.
Ms Meyer continues to work, as a (occupation omitted), attached to the (employer omitted). Her position is the (occupation omitted). She travels to (omitted), in the (omitted) area to perform her duties, mostly in conventional hours. She enjoys her job, which suits her and her responsibilities to parent X.
In addition, Ms Meyer has re-partnered. Her current partner is Mr P. Recently, he moved in with Ms Meyer and X. They have relocated, as a family, to a larger home in (omitted). It is close to where X’s maternal grandmother lives.
Ms Meyer’s life is based in the (omitted) area. She does not want to move. In these circumstances, the application of orders 12 to 15 of the orders made at the Local Court at Wagga Wagga, in November of 2010, come into play.
From Mr Shipton’s perspective, the orders are clear and unequivocal. It was agreed by the parties that X would attend school in (omitted). In the event that one of X’s parents elected not to live in (omitted), the child was to live predominantly with the parent resident in the town.
As previously indicated, Ms Meyer now asserts that the Wagga Wagga orders were not negotiated fairly. In any event, she does not believe that it would be in X’s best interests for him to live predominantly in (omitted) with Mr Shipton. As she cannot easily leave (omitted), it is her position that X should live predominantly with her, notwithstanding the import of the November 2010 orders.
This is the background to the current proceedings, which Ms Meyer commenced on 22 January 2013. In his response to Ms Meyer’s application, Mr Shipton invoked the November 2010 orders and sought the dismissal of the mother’s application. He argued that the issue of X’s care had been determined by the earlier orders.
In support of his position, Mr Shipton invoked the so-called rule in Rice & Asplund[1]. The rule in Rice & Asplund is a manifestation of the paramountcy principle. In all cases, the best interests of the child concerned are the paramount or most important consideration.
[1] See Rice & Asplund (1979) FLC 90-725
Litigation between their parents is generally not helpful for children. It is desirable that arrangements for the care of children be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in the future.[2]
[2] See C D J v V A J (1998) FLC92-828 at 85,449
For that reason, a court will not readily re-open a case concerning parenting orders previously made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund. It is fundamentally a mechanism to protect children from the consequences of unnecessary litigation regarding their care.
In Mr Shipton’s submission, there had been no significant change in the parties’ circumstances, since November of 2010. Ms Meyer had moved to (omitted) prior to the making of the orders. The orders themselves clearly envisaged a situation in which she continued to do so, whilst he remained living in (omitted).
In these circumstances, Mr Shipton sought to agitate the application of the rule as a preliminary issue, prior to an exhaustive final hearing, which would necessarily be expensive and emotionally draining for both parties concerned.
This aspect of the proceedings was determined by Judge Brewster in May of 2013.[3] His Honour determined that Mr Shipton’s application to have Ms Meyer’s case dismissed should be refused. In his published reasons, in support of his decision, Judge Brewster, in my view sagely, said as follows:
“Orders made by consent are in a different category. They may represent what the parties believed was in the best interests of a child but there may also be other factors in play. The agreement may not have been concluded between parties in an equal bargaining position. An assertive party may have an advantage over an unassertive party. A party who agrees to arrangements which he or she believes is not in the best interests of the child may do so because of the costs involved in litigating the matter and/or the stress involved in litigating it. The orders may be a result of a compromise. Where each party is contending that the child should primarily live with him or her and each has an arguable case they may take the attitude that a guaranteed half a loaf is better than facing the possibility that the result will be no loaf at all and agree on a shared arrangement. There is no reason to assume that consent orders must have been made solely on the basis of what the parties perceived was the best interests of the child.
In the present case a matter to which I have regard is the fact that it is most unlikely that a judicial officer at the conclusion of a contested hearing would have made orders of the type the parties agreed on. The child was just two years of age when the orders were made and it would be an unusual case where a week about arrangement would be found to be in the best interests of a child this age. This would particularly be the case where the parties would be living a significant distance apart and a change would have to be effected when the child commenced school.”[4]
[3] See Meyer & Shipton [2013] FCCA 307
[4] Ibid at paragraph 10-11

I agree with Judge Brewster’s assessment that a court, such as this one, was unlikely to have made an order, of its own initiative, creating an equal time regime, for a child of around two years of age, whose parents communicated poorly and whose homes were separated by a significant distance.
Such a scenario would appear axiomatically to offend the two legislatively stipulated and essential pre-conditions for the making of an equal time order, namely such an arrangement must be both in the best interests of the child concerned and objectively practical to implement.[5]
[5] See Family Law Act at section 65DAA
The immediate consequence of Judge Brewster’s decision was that the current hearing and the resulting decision required became inevitable. The nature of the parties' relationship; their unwillingness/inability to move; and their divergent views about how X’s interests would be best served; made compromise between them impossible. Sadly, the case must come to a denouement.
This is sad for a number of reasons. Firstly, although the parties have many longstanding issues with one another, and although there are many irritants in their relationship, they are united in the view that they should continue to have equal shared parental responsibility for X and, as such, it is implicit in their mutual position that each concedes that the other is a positive influence in X’s life and has much to offer him.
If the circumstances had been different, it seems clear that both Ms Meyer and Mr Shipton would have been content to allow the week about regime to continue indefinitely – perhaps not without misgiving – but to utilise Judge Brewster’s terminology, in light of the realisation that “half a loaf was better than none.”
In these circumstances, regardless of the outcome of the case, both parties promote X spending substantial and significant time with his other parent. This time will include alternate weekends, in term time, as well as an overnight period in the other week; lengthy blocks of time, in school holidays; and arrangements for X to share special occasions with both his paternal and maternal family.
Fortunately, the distance between (omitted) and (omitted) is not so great that X will become a stranger to one of his parents. However, the change of circumstances will possibly leach a little of the intimacy and warmth in one the parental relationship concerned.
Secondly, notwithstanding the lack of positive indicia, for a shared care regime, the evidence indicates that X has thrived in the arrangement. He is a bright, chatty, sociable child. He is much loved, by all in his family, particularly of course, by his mum and dad. X is well parented and is doing well himself, in the shared parenting regime. This must be a credit to his parents, who are doing a good job for him.
Happily, unlike many other cases, which come before the court, this is not a case which centres on concerns of neglectful or incompetent parenting or where the parents themselves are victims of social disadvantage; alcohol or drug abuse; or some other significant impairment on their parenting.
Both Ms Meyer and Mr Shipton are good people and honest citizens, who, like many others before them, have suffered the misfortune of marital breakdown, resulting in them taking different courses in their now separated lives.
For readily understandable reasons, Ms Meyer has chosen to live in (omitted) and Mr Shipton has chosen to remain in (omitted). In this country, which is a free and democratic one, individuals are entitled to lead the lives of their preference. This situation has created the current dilemma. A decision has to be made, by an independent arbiter, which is in X’s best interests. It is a heartbreakingly difficult decision.
Necessarily, given the circumstances of the case, and its history to date, the decision is finely balanced. Neither party has a clear cut advantage over the other. The final decision must be informed by a closely calibrated consideration of the various legislatively stipulated criteria, by which a court is directed to determine how a child’s interests will best be served.[6]
[6] See Family Law Act at section 60CC
The parties, through their experienced and well prepared counsel, recognise the reality of this situation. From Mr Shipton’s perspective, the case comes down primarily to two inter-related considerations:
·For idiosyncratic reasons, related to his innate psychological makeup X has a deep seated preference to live with his father. His natural orientation is to identify with male figures. He is a boy’s boy or a daddy’s boy. This innate preference has been solidified by his strong relationship with his father, fostered over the previous three or so years of the shared care regime.[7]
·Associated with this strong paternal relationship, X is particularly connected to his family in (omitted) and identifies with people in his life, who are associated with the town. These include not only his father, but also his paternal cousins, his extended paternal family and a cohort of friends, who attend preschool and play hockey with him.
In Mr Shipton’s submission, the significant degree of connectedness of X to him and the child’s entwined life, with other relatives and friends in (omitted), tips the balance, in a delicately poised case, in his favour.
[7] See Family Law Act at section 60CC(3)(a)(b)
For her part, Ms Meyer accepts that X has an excellent relationship with his father and many close connections in (omitted). It is she who has previously characterised X as a daddy’s boy. However, she cautions against too much weight being given to X’s views or apparent preferences, at this stage, given his obvious immaturity. In her case, two significant factors tip the balance her way:
·Mr Shipton has unwittingly invested too much emotion in his relationship with X and has so become emotionally dependent upon the child. This is potentially psychologically unhealthy for X. As such, she is the better placed parent to cater for X’s emotional needs, into the future.[8]
·It is also her case that she is comprehensively the better parent and so her household is the superior one for X. It is a structured household, where proper boundaries are set and she herself is a reflective and insightful parent.[9]
[8] See Family Law Act at section 60CC(3)(f)
[9] See Family Law Act at section 60CC(3)(i)
Given the inherent difficulty associated with the case, it was clearly appropriate that the court commission an independent expert to examine the matter and provide some objective assessment of the nature of X’s relationship, with each of his parents. The family report, in this case, was prepared by Family Consultant Ms D on 5 September 2013.[10]
[10] See exhibit D Family Report dated 5 September 2013
Not unsurprisingly, Ms D was unable to make a clear recommendation in the case. She acknowledged X presented as being especially close to his father, but also recognised he loved his mother. She described X as a confident and socially assured child, which was attributable to both his parents’ efforts and was to their mutual credit.
In her family report, Ms D expressed the dilemma created in the case as follows:
“The shared arrangement these parents have maintained appears to have worked well for the child. They have each had extended families to support them. X has therefore had a rich family experience. He is allegedly especially close to his paternal cousins. X expressed a clear desire to live mainly with his father. He is therefore likely to experience sadness and ‘confusion’ if he sees less of his father. He will feel the same regarding his mother. While the present situation has possibly denied an equal relationship with each parent, X is still close to both. He is going to have to adjust to the different situation that he will be undergoing once he starts school. He will also be adjusting to school.”[11]
[11] See family report at paragraph 55
Whatever is the outcome of this case, X will have to accommodate a significant level of change. As well as having to adjust to living more in one of his parents’ households than the other, he will also have to make the transition to full-time school, a major milestone for all children.
Underpinning Ms Meyer’s case is her assertion that she will be more sensitive to this adjustment and will ensure it happens as smoothly as possible for X. On the other hand, Mr Shipton believes that the significant degree of integration of X into his home and family, based in (omitted), is the best environment to support X through this process of transition.[12]
[12] See Family Law Act at section 60CC(3)(d)
For all these reasons, this is a difficult case, which presents no ready or obvious solution. Whatever is the outcome, it will have some potential shortcomings, so far as X is concerned. In addition, one of his parents will feel hard done by.
If I make the orders the mother wishes, Mr Shipton will feel sad that he will not be so involved in the day to day aspects of X’s life and care. He is likely to be bitter that the issue he considered resolved, by the orders of November 2010 has been decided in a manner adverse to his interests.
If I make the orders the father wishes, Ms Meyer will be similarly upset. In addition, given how closely balanced the case is, each party is likely to believe that, if the case goes adversely, the court has made a fundamental error in its judgment.
I am gravely concerned that the consequences of the problem, created by this case and its circumstances, and its ultimate resolution, may well be a source of continuing bitterness between Ms Meyer and Mr Shipton.
I say this, at this stage, because I think it right to acknowledge and express my regret for the inevitable distress the resolution of this problem will bring, for one of the parties concerned.
I hope that the parents will each cope with the situation, as well as possible, so that any difficulties arising for X will be minimised and his relationship with each of his parents, already very sound and secure, will be maintained well into the future.
In these circumstances, it is appropriate to emphasise the positive factors, which arise in the case and the matters which the parties have in common with one another, rather than to focus on the things which draw them apart.
They both love X, who is an engaging, healthy and happy little boy. The distance between their homes is a manageable one. Whatever is the final decision, each will be able to play a significant and abiding role, in X’s life, as he grows to maturity.

The legal principles applicable

Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[13]
[13] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[14] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[15]
[14] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[15] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
This is not a case which focusses on the primary considerations. The parties agree that X will benefit from having a meaningful level of relationship, with both of his parents. These already meaningful relationships for X, will continue regardless of whether he lives predominantly in (omitted) or (omitted).
In addition, it is not a case, which raises protective concerns in respect of X. Rather, it is a finely calibrated case, which turns on the application of various of the additional considerations arising under section 60CC(3).
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. The presumption is rebutted if there are reasonable grounds to establish that the child has been abused or exposed to family violence or such an outcome would not be in the best interests of the child concerned.
In this particular case, there is no basis for the presumption not to be applied to X’s ongoing parental situation. Both Ms Meyer and Mr Shipton are engaged parents, who are vitally interested in every aspect of X’s care. In any event, both parties agree that the presumption should be applied.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
In this case, the parties agree that, although the theoretically desirable outcome for X is an equal time arrangement, such an option is impracticable, if his parents’ respective households are separated by a distance of around 90kms and X himself must attend one primary school located in reasonable proximity to one of these households.
However, as already indicated, whatever is the court’s ultimate decision in the case, X will be able to spend “substantial and significant time” with each of his parents.
However, necessarily, X’s time, with one of his parents, will be significantly reduced during the school week. I accept that this reduction must have implications for the degree of meaning, in the parental relationship so affected.
Children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This is the rationale behind the concept of “substantial and significant time”.
In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents. The aim being for parent and child to spend a variety of time together, including time just hanging out together, so that the relationship between the two is comfortable and intimate.

In the context of what has gone before, in this case, it is interesting to consider the legislatively mandated criteria, which apply to whether it is objectively feasible for there to be either an equal time regime or a substantial and significant time regime. These issues of practicality are dealt with by section 65DAA(5).
The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
As previously indicated, in my view, if the parties’ case had come before the court in November 2010, it is unlikely that an equal time order would have been made because of the distance between the parties’ respective homes and the impediments existing in their parental relationship, particularly in terms of easy communication with one another. However, with the benefit of hindsight, it appears that the November 2010 arrangement has had a positive outcome for X himself.
The question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made (and with equal effect a substantial and significant time order).
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. This is because s65DAA(1) & (2) are expressed in “imperative terms” and oblige the court to consider both questions. The affirmative answer to both being an essential jurisdictional fact before an equal time or substantial and significant time order are made.
Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable, in the sense of facilitative of the child’s best interests alone, that an order for equal time to be spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[16]
[16] See MRR v GR (2010) 240 CLR 461 at [13] & [15]

The documents relied upon and the witnesses called

Ms Meyer has personally provided three affidavits in the case.[17] Mr Shipton has filed two affidavits.[18] All five of these affidavits are interrelated, as the parties reply to what has been said in earlier affidavits.
[17] Filed on 22 January 2013; 11 September 2013; and 5 November 2013
[18] Filed respectively on 11 July 2013 and 24 September 2013
This leads to a process of incremental elaboration or varnishing of the incidents concerned, as the case has proceeded. Accordingly, much of the evidence, in this case, certainly so far as the parties themselves are concerned, is reactive in nature.
In addition, Ms M relies on affidavits obtained from the following:
i)An affidavit of her mother, Ms B filed 11 September 2013;
ii)An affidavit of her partner Mr P filed 11 September 2013;
iii)An affidavit of her father, Mr D filed 6 November 2013.
Of these witnesses, all but Mr D were required for cross-examination.
In Mr Shipton’s case, he relies on the following affidavits:
i)An affidavit of his mother, Ms M filed 24 September 2013;
ii)An affidavit of Ms L filed 20 September 2013;
iii)An affidavit of Mr S filed 23 September 2013;
iv)An affidavit of Mr J filed 23 September 2013.
Of these witnesses, all but Mr J were required for cross-examination. Mr J is Mr Shipton’s supervisor at (employer omitted). He gave evidence as to Mr Shipton’s work roster and deposed that (employer omitted) has a commitment to providing its employees with flexible hours so that they can have “a balance between work life and family life.” His evidence does not appear to be controversial.
The only other witness called in the case was the court appointed expert, Ms D. Her family report was tendered into evidence and she herself was extensively cross-examined by counsel for each of the parties.

The evidence

The issues arising in this case are subtle and complex. They have arisen over many years and have evinced deep emotion on the part of the parties concerned. During this period, both Ms Meyer and Mr Shipton have had to weather a number of major crises, particularly in the period before and immediately after their difficult separation.
As a result of the level of complexity, which invariably arises in family law cases, it is often fatuous for the court to decide cases involving a child, on the basis of findings of credit relating to the parties themselves – that is the court believing one parent over the other. In effect, determining one is truthful and the other is not. Very often this is a simplistic reduction.
It is, I think, becoming increasingly recognised that it is very difficult, if not impossible, for courts to make findings of fact, about myriad issues, which have arisen over many years, through the imperfect tool of assessing evidence provided in the artificial (and to many intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
In addition, given the importance for children that their parents maintain, at least, the possibility of having a functioning parental relationship with one another following court proceedings, the court should avoid making potentially hurtful findings of fact, wherever possible, which may in future be damaging to such parental relationships, unless it is absolutely necessary to do so.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings such as these tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotion created by such proceedings, which involve the person or the persons the parties to them hold most dear – their children – blur perceptions and recollections of past events.
Invariably, the court process requires parties to account for their conduct, in difficult and emotionally laden situations. That is the case in this matter. For obvious reasons, people placed in such situations, do not always behave well. These situations lend themselves to a subsequent process of self-justification, either consciously or unwittingly.
In addition, in spite of well intentioned legislative initiatives, designed to make proceedings relating to children less adversarial in nature, such cases very often remain fiercely combative. The parties concerned have much invested in the outcome of these types of cases. Both want to be successful. These situations lend themselves to exaggeration or even the suppression of material facts.
Finally, all witnesses share the same human failings of imperfect memory and flawed recollection. It is a common phenomenon for two persons, involved in the same set of occurrences, to have very different views of those events, which are nonetheless honestly and genuinely held. The differences in recollection arising because of differences in perspective and personality.
For all these reasons, the court must be cautious about making findings of fact. However, imperfect as it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily, therefore, the court must form some impression of the parties and witnesses involved, particularly their truthfulness and objectivity, so that this adjudication can occur.
As with the legal considerations arising in the case, the findings of fact required to be made, turn on delicately nuanced circumstances, where the parties have subtly different views, as to what actually occurred between them. In addition, many of the situations involved happened when each of the parties’ emotions are likely to have been aroused.
This, of itself, is likely to impede both the objectivity and accuracy of their respective recalls. In addition, the parties do not communicate effectively, if at all. This state of affairs is also likely to lead to situations, where the parties are unwittingly at complete cross purposes as to what they said and did to each other, particularly in regards to what they meant to convey to the other.
In my view, which is informed by my impressions of each of them, garnered by their respective appearances in the witness box, the parties also communicate in different ways. Mr Shipton, although an intelligent person, is not adept with words. He is, at times, a clumsy communicator. Ms Meyer is a more articulate person, who is structured and accurate in her use of language.
Ms Meyer is also a trained (occupation omitted). Some of the issues, in this case, turn on what individuals are reported to have said to one another and the import of those conversations. Ms Meyer has purported to record those conversations verbatim, often many years after they occurred.
Although (omitted) are trained to record and recall such things, I find it unlikely that she is able to remember the details of those conversations, so fluidly, particularly their exact content, long after the events themselves happened.
It is not beyond the bounds of possibility that she has forgotten what actually happened and has later reconstructed what she thought must have been said (or not said) in the light of her subjective perceptions of Mr Shipton, informed by the conflicted nature of their relationship, with one another, particularly in the context of these difficult proceedings.
Finally, the parties have largely parented X, up to this stage, in parallel. There is a clear line of demarcation between their two households, which only X crosses. As such, the parties, of their own knowledge, do not know what actually occurs in the other’s home.
For obvious reasons, it is fraught with all manner of dangers, in relation to misconception and misreporting, to adopt X as an accurate purveyor of information about what happens in the other household. Although I accept that X is a sensitive child, he lacks sufficient insight and maturity to be able to interpret actually the emotions and behaviours of his parents.
Notwithstanding my reservations about the accuracy of recall, in both parties, in my assessment, both the father and the mother were pleasant and honest witnesses, who attempted to tell the truth, as they each saw it, about the nature of their relationship with one another and their respective involvement with X.
Clearly, both the father and mother love X dearly and both want what they think is the best outcome, for him, from these proceedings. In this context, in my assessment, both Mr Shipton and Ms Meyer genuinely think that their proposal, for X, is the superior one.
Accordingly, for obvious reasons, the proceedings themselves were often infused by an extreme level of emotion. Ms Meyer herself broke down, whilst giving her evidence, particularly in its later stages.
Mr Shipton conceded that he was devastated at the end of his marriage to Ms Meyer and was deeply fearful of losing X as well as his marriage. In my impression, he is a sensitive person. Overall, I do not categorise him as being calculating, in the presentation of his evidence. At times, he seemed to me to be painfully honest.
Accordingly, as with the legal considerations arising, the evidentiary aspect of the case presents a dilemma. Both parties appear as frank and credible witnesses, albeit subject to all manner of ordinary human frailties, intensified by the invidious situation in which they currently find themselves. As such, I do not automatically favour one over the other, as the better historian.
Rather, I must examine carefully each area of controversy arising between them and determine, issue by issue, what I believe is more likely to have been the truth of the situation overall, given the context in which the issue arose. The standard of proof to be applied, in the case, is the balance of probabilities.
The areas, in the case, which create controversy, can be summarised as follows:
·What was the nature of the parties’ relationship prior to their separation?
ØWas it a coercive and controlling relationship, as the mother contends;
ØOr did the parties both behave poorly, from time to time, in reaction to their difficult circumstances, as the father contends;
ØWhat are the implications of their relationship, if any, in the context of the Wagga Wagga orders of 16 November 2010;
ØWhat are the implications of the parties’ prior conduct for X now.
·What is X’s perception of the nature of the relationship between his parents, in the context of:
ØThe mother informing X that she left the father because he was a “bully”;
ØX’s alleged statement to his mother that his “dad misses me so much when I’m gone. He nearly cried in the shower because he was going to miss me so much”;
ØWhat are the implications, if any, of statements such as these, in the context of the parties’ capacity to encourage and support the relationship between X and the other of his parents.
·It is agreed that, in the past, X has exhibited emotional distress at handover:
ØWhose conduct drives that distress;
ØDoes it derive from the father’s emotional neediness and lack of insight;
ØDoes he either consciously or unconsciously seek to perpetuate the child’s distress by extending the process of handover;
ØOr, is the distress a reflection of some form of preference, on X’s part. Is he just a child, who is reluctant to return to his mother.
·Mr Shipton acknowledges that, in response to X’s distress, at handover, he engaged a psychologist, Ms S, in October of 2011.
ØDid this involvement arise because Mr Shipton was not coping with other significant factors in his parenting of X;
ØWhat are the implications arising from the father’s failure to involve the mother in this counselling;
ØDoes this indicate that he has an essentially flawed level of insight, into the responsibilities of being a parent.
·Ms S’s notes[19] indicate that she urged Mr Shipton to arrange for Ms Meyer to attend upon her to discuss issues pertaining to X.
[19] See exhibit A
ØIt is clear that this did not occur. Mr Shipton asserts that he requested Ms S to telephone Ms Meyer, in this regard, as she would be likely to disregard anything he suggested about X.
ØWho of the parties is more responsible for deriving their impaired capacity to communicate effectively, regarding X’s needs.
·In early 2012, Mr Shipton alleges that X disclosed to him that Mr P had been touching him and that Mr P and Ms Meyer had been hitting each other;
ØMr Shipton informed Ms S of these issues and, given their gravity, she urged him to inform Ms Meyer;
ØIn this context, after an exchange of text messages, the parties arranged to meet at a hotel in (omitted) on 10 March 2012, at the father’s instigation;
ØThe father asserts he told the mother of both Ms S’s involvement with X and the nature of the allegations made by the child;
ØThe mother denies that this was the case;
ØIt is the mother’s case that this alleged omission, on the father’s part, is indicative of his shortcomings as a parent.
·The parties agree that each telephones X “most evenings” when he is with the other parent and there are sometimes difficulties in getting him to speak with that parent;
ØIn this context, what is the significance of Mr Shipton allegedly “bribing” the child to speak with his mother;
ØWhat is the relevance of this, in context of any assessment of any overall parental capacity of each of the parties.
·What are the respective parenting styles of the parties, are they different? Does this matter?
ØIn this context, is the father an unduly permissive parent, who is spoiling X by giving him too many presents, particularly Skylander toys and other electronic devices;
ØIs the mother the more responsible parent, in the setting of boundaries and discipline for X.
These matters, delineated, I hope with care, are emblematic of the central issue arising in the case – will X be better off living in (omitted), with Ms Meyer, because she is quantifiably the superior parent, or is X going to be better off in (omitted), living mainly with Mr Shipton, because it is his innate preference and where he feels he belongs, as a consequence of the nature of this relationship with his father and others, who live in (omitted).
a)General background
Ms Meyer was born on (omitted) 1982. Mr Shipton was born on (omitted) 1976. They each currently enjoy good health. Neither has any other children, apart from X. They met in 2002, in (omitted), and began to live together in 2004, initially occupying premises owned by the father’s parents.
Ms Meyer began her (course omitted) qualifications in 2005. She began to work as a (omitted), in 2007, working six to seven shifts, per fortnight, in (omitted). The parties moved into their former family home, at Property A, in 2008.
Mr Shipton had purchased a vacant block of land, at Property A, in the early days of the parties’ relationship. The parties elected to build their home on the block and it was transferred into their joint names. They seem to have been under some financial pressure, at the time, which continued up until and after they separated.
Once Ms Meyer fell pregnant with X, she obtained a secondment at the (omitted) in (omitted) between May 2008 and shortly prior to X’s birth, in October 2008. Thereafter she took six months maternity leave. Mr Shipton took six weeks paternity leave, after X’s birth.
In early April 2009, Ms Meyer returned to work at the (employer omitted). In May of that year she began a full-time three month secondment at the (employer omitted). Mr Shipton took ten weeks leave, from about the time X was six months of age, to provide care for him.
There is no dispute that Mr Shipton has been integrally involved with parenting X, in a significant way, since his early infancy. As both of his parents were engaged in the paid workforce, X began to attend day care, when he was still a baby.
Ms M worked other jobs, in addition to her employment with (employer omitted). She worked at a (omitted); (omitted); and was a (omitted). Mr Shipton did private jobs, (omitted). Money was tight.
There were many sources of tension in the parties' relationship, apart from the obvious ones arising from financial pressures and the need to balance work responsibilities with caring for a young child. The mother complains that the father controlled her need to exercise. The father felt excluded from the mother’s career as a (occupation omitted). The issue of the mother working outside of (omitted) was a source of friction. The parties agree that they argued frequently.
Often Ms Meyer had to get up early to go to work in (omitted). In those circumstances, Mr Shipton got X up and took him to child care before starting his own work. He would also collect X from child care, in the afternoons, when Ms Meyer was working. Her shifts were long, when she was working – up to twelve hours in length with travelling on top.
In those circumstances, there was disagreement about the division of parenting responsibilities, housework and the cooking of meals. Ms Meyer felt she did more in this regard, with care arrangements for X automatically devolving onto her as soon as she got home from work. Mr Shipton believes that he often cooked dinner and the care of X was about even.

In the context of these proceedings, these are difficult issues for the court to resolve definitively. Ms Meyer would categorise herself as being X’s primary carer in the sense that she was X’s main source of both physical and emotional succour.
This may be so, but in no way can Mr Shipton be characterised as an uninvolved father. I accept that he pulled his weight, so far as providing care for X was concerned. Ms Meyer was very busy. Given X was a baby it is more likely than not that she provided more care for him but she was frequently away. The basis for shared care was fixed at a very early stage.

b) Family violence

It is in the context of the difficult circumstances surrounding the parties' relationship, particularly in the period leading up to their separation, that the allegations of family violence raised by the mother and the father’s response to them must be examined.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour, which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·       An assault;
·       Repeated derogatory taunts;
·       Intentionally damaging or destroying property;
·Unreasonably denying a family member financial autonomy or unreasonably withholding financial support
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that coerces or controls that person.
In my view, the essence of the definition is that it reflects a power imbalance between family members as a result of which one party is able to control the behaviour of the other through a process of intimidation and coercion.
As previously indicated, it is my finding that the parties, during their relationship, were subject to all manner of pressures. They disagreed about several important issues, including Ms Meyer’s choice of work and its location. They argued frequently and no doubt were each frequently unhappy and dissatisfied with the conduct of the other.
These significant differences led to their ultimate separation. Individuals do not always behave well when unhappy or stressed. In these circumstances, I must be careful not to attribute fault too easily or apply unduly utopian standards to the parties’ respective conduct. For all manner of reasons, their relationship was fraught with emotional difficulties, to which each reacted, perhaps in idiosyncratic ways.
Ms Meyer does not assert that Mr Shipton ever hit, punched or kicked her. She does however acknowledge that she herself punched Mr Shipton, in the mouth, causing his lip to split. This incident happened in November of 2004, when each had drunk to excess. An argument ensued, in which Ms M alleges she was provoked by comments made by Mr Shipton about her family.
Obviously, the incident in question is an unfortunate one which does neither party credit. It happened long before X was born. In my view, the incident demonstrates the volatility of the parties' relationship.
It is also my view that both parties contributed to this volatility. As such, in my finding, it is inaccurate to assert that one party was always the protagonist in the arguments between the parties and the other always the victim. Ms Meyer is capable of retaliation.
In this context, Ms Meyer acknowledges that the parties had loud arguments together and frequently swore at one another. However, it is her perception that Mr Shipton swore more at her, than she did at him. She also puts significant emphasis on the fact that she is petite woman and he is a large, well-built man.
In this context, Ms Meyer asserts that Mr Shipton, whilst towering over her, would yell at her from time to time, in the parties’ various arguments, which caused her to be intimidated. However she concedes that this situation did not prevent her swearing back at him. She agrees that the word “fuck” was part of their mutual vocabulary.
For his part, while conceding, as he must, that Ms Meyer is considerably smaller than him, Mr Shipton asserts that, during the parties arguments, she would come up to him and yell in his face, whilst poking him in the chest. Ms Meyer denies that she ever poked Mr Shipton thus.
In my view, behaviour of this type is indicative of situational violence. The behaviour of both parties does them no credit. However, in my estimation they each gave in to the volatility of the situation. One was not intimidating the other. This is not an indicia of some form of power imbalance between the parties.
Ms Meyer alleges that Mr Shipton slammed a door violently on one occasion causing it to fall off its hinges and on another punched a hole in a door. Again, these incidents occurred in the context of arguments occurring between the parties. However, Ms Meyer does not provide any aetiology of the arguments in question.
For his part, Mr Shipton acknowledges slamming the door in question but asserts that it was already damaged. He denies punching the wall as alleged. To his credit, I think, he does not seek to stigmatise Ms Meyer for punching him, agreeing with her assessment that it was an isolated incident, out of character for Ms Meyer.
Like many individuals, exercise, including gym attendance; cycling; and taking part in aquathons; is important for Ms Meyer. The extent of her exercising was, I accept, a bone of contention between the parties. There is no evidence to indicate that Mr Shipton ever forbad Ms Meyer from exercising.
From his perspective, he wanted to know when she would be home. I do not accept that this aspect of the case amounts to coercive or controlling behaviour. Rather, in common with many other issues, it was an issue about which the parties disagreed.
The parties each independently recollect arguments in their home after X was born. Neither specifies what the arguments were about or who started them. In one, Ms Meyer asserts Mr Shipton barged past her whilst X was lying in a sling on her chest. Mr Shipton denies the gravamen of the allegation that he pushed the mother in some way.
In another incident, Ms Meyer asserts that the parties were arguing in X’s bedroom. She asserts she pushed Mr Shipton away in order to create some space for herself. In contrast, Mr Shipton asserts that Ms Meyer followed him into X’s bedroom, where he had gone to get away from the arguing and attend to X, upon which Ms Meyer pushed him away from the child’s cot, causing him to fall against the cot.
In my view, there is a commonality in how both Ms Meyer and Mr Shipton have described what was undoubtedly an unpleasant incident between them, other than in respect of the attribution of fault. Both blame the other for the escalation of the incident. In my view, there is a mutuality about their conduct. Again, this seems to me to be indicative of situational violence.
The parties complain about the other’s conduct in telephone conversations. They hung up on each other. At times they talked over one another. Mr Shipton wanted to know when Ms Meyer would be coming home. They swore at one another. The parties were frequently discourteous to one another.
However, at other times as Mr Shipton was quick to point out, they behaved appropriately to one another. They cooperated in parenting X.
Ms Meyer places particular emphasis on two specific incidents, involving Mr Shipton, which she would categorise as being coercive and controlling behaviour on his part. In addition, she asserts that, throughout the parties' relationship, Mr Shipton deprived her of a significant degree of financial autonomy.
The first incident happened just after Ms Meyer had finished her major exam, at the (omitted). No specific date is provided, but it seems to be prior to X’s birth. Ms Meyer was to pick up Mr Shipton, after being out celebrating. She was late and an argument ensued, which continued when they got home.
Ms Meyer indicated that she was leaving, in the parties’ car, when Mr Shipton said words to her to the effect of: “You take that car and I’ll ring the cops and report it stolen. It’s registered in my name.” In response to this threat, Ms Meyer apparently left the home on foot.
The second incident occurred when X was a baby and the parties were living in the former family home. Mr Shipton had arranged for his father and another relative to do some concreting in the back yard. Ms Meyer was delayed at work due to her involvement in a (duties omitted). An argument ensued. Mr Shipton swore at Ms Meyer and demanded that she look after X.
Neither incident does Mr Shipton any credit. He was angry and abusive on each occasion. However, in each case, it seems to me to be more likely than not, that Mr Shipton acted and spoke in the heat of the moment when he was under some stress. As such, I do not think that this behaviour can be easily categorised as coercive and controlling behaviour, rather he reacted badly to a stressful situation.
Ms Meyer complains that Mr Shipton pried into her affairs at work and wanted to know when she would be home. From Mr Shipton’s perspective, he was concerned, at his perception, that Ms Meyer was drifting away from him.
He has also indicated, in his evidence, that he was often worried about Ms Meyer, particularly in the context of her long drive from (omitted). In my view, these areas of dispute are more indicative of an unhappy relationship, rather than one partner actively controlling and intimidating the other.
Ms Meyer complains that Mr Shipton controlled the family’s finances. Mr Shipton agrees that he was focussed on ensuring that the parties’ mortgage commitments and other bills were satisfied and that he took the lead in overseeing the parties’ finances. Ms Meyer concedes that she could access moneys to finance her own immediate needs. In my view, this situation is a long way away from one spouse unreasonably withholding financial support from the other.
Overall, I am satisfied that the marriage between the parties was frequently unhappy and Ms Meyer, in particular, grew increasingly dissatisfied with it. The tensions between the parties often boiled over and each of them reacted to those tensions and, as a consequence, said and did things which were regretted later. This was not a relationship characterised by a marked power imbalance between its participants.

c) The circumstances surrounding the parties’ separation

The parties finally separated on 20 December 2012, when Ms Meyer left the (omitted) home and moved in with her mother in (omitted). The separation took Mr Shipton by surprise. He did not want the marriage between the parties to end. For obvious reasons, the separation intensified the financial pressures on the parties, as previously shared expenses had to be duplicated.
In these circumstances, the parties had to continue working as a consequence of financial necessity. From this early stage, the week about care arrangement for X devolved. It suited Ms Meyer, to some extent, because of her work requirements. It was also acceptable to Mr Shipton. It did not come about at the direct instigation of Mr Shipton or as a consequence of some intimidation of Ms Meyer on his part.
Clearly, it was a difficult and emotionally fraught time for all concerned. Decisions had to be made on an ad hoc basis, in an environment where communications were extremely strained and emotions were heightened.
Ms Meyer complains that Mr Shipton demanded that she contribute to the parties’ car loan; credit card debts; and the rates on the (omitted) property. She kept one of the cars to which a loan agreement related. Mr Shipton asserts that he continued to pay the mortgage on the Property A property. This does not seem to me to be a situation where one party was attempting to exploit the financial weakness of the other.
Ms Meyer also seems to have been anxious to move on from the marriage (and her life in (omitted)), as soon as possible. At an early stage, following the separation, she found a property, in (omitted), which she wished to purchase. She would have been naïve in the extreme, to have considered that this decision, on her part, would not have precipitated some reaction from Mr Shipton, given what had occurred up to that stage.
In my view, if each of the parties are honest with themselves, they will concede that the major issue, which is now central in this case – the problem of the father living in (omitted) and the mother choosing to live in (omitted) – was potent and alive, in each of their minds, from March of 2010 onwards and, as such, each knew how important the issue was to the other. In this sense, there was absolutely no level of misunderstanding between the parties.
Ms Meyer complains that Mr Shipton indicated to her that she was free to buy in (omitted), so long as there was no argument that X would go to school in (omitted). She asserts that he threatened not to agree to a property settlement and to oppose any application which she might bring to take X out of (omitted).
Mr Shipton does not dispute that he threatened Ms Meyer with such litigation. The implication of Ms Meyer’s position is that Mr Shipton should be criticised for playing “hard ball” in this way. I am not persuaded that there is any great validity in this criticism.
For understandable reasons, the issue of X moving away from (omitted) precipitated strong emotions in both Mr Shipton and Ms Meyer. In such circumstances, it is a frequent occurrence that one party threatens another with litigation. After all, the purpose of litigation essentially in this context is to resolve parenting disputes.
Notwithstanding that she knew the moment of the decision from Mr Shipton’s point of view and given that the shared care arrangement for X had naturally arisen, Ms Meyer chose to purchase a property, in (omitted), in May 2010, prior to any agreement being formalised between the parties, either in respect of X or in financial terms. This does not seem to me to be a situation of Mr Shipton’s actions putting Ms Meyer “over a barrel”.
From both parties’ points of view, each had much to be apprehensive about in respect of prospective legal proceedings. They had few financial resources to fund such a case. Each had a vested interest, in reaching some form of compromise, in order to avoid a hearing which might be disadvantageous to one or other of them.
In my view, it is simplistic to assert that Ms Meyer was forced to enter into the consent orders, through a process of duress, when one of the major pressures in her life at the time came about as a consequence of her decision to purchase in (omitted).
She must have known what were the implications of the consent orders made in November of 2010. She had, after all, apparently received comprehensive legal advice about them and had had a significant period of time in which to consider them.
In addition, she can have been under no misapprehension as to how seriously Mr Shipton regarded the possibility of X living permanently outside of the (omitted) area. He had been a fully involved parent up to this stage providing week about care for X. From his perspective, he wanted the consent orders to be “water tight”.
The implication of the orders is unequivocal. Ms Meyer understood them, certainly after she received legal advice in respect of the orders and signed off on them. Undoubtedly, she had some misgivings about them, but at the time it suited her to finalise the case because of the natural fear of something worse. In any event, in November 2010, January 2014 seemed a very long time away and like Mr M, no doubt, she thought something would turn up in the meantime.
In this sense, Ms Meyer intended to kick the (omitted) issue, like a can up the road to worry about another day. In this, she has been successful, as the current proceedings demonstrate. The court has returned to the issue, notwithstanding the import of the November 2010 orders.
As in all cases to do with children, X’s best interest remain the paramount consideration. Both parties knew in November 2010, that a week about regime for X was impracticable once he started primary school. Mr Shipton must be considered naïve if he thought either Ms Meyer would return back to (omitted) or she would surrender X’s primary care to him. In my assessment, Mr Shipton is not naïve.
In this sense, to a large extent, both parties knew that the current proceedings were inevitable, but in November 2010, it suited both of them for those proceedings to be deferred. There was no duress or lack of a level playing field between them in the period leading up to the consent orders.
d) The parties’ current situations and proposals in detail
I am satisfied that X has a rich and emotionally satisfying life when he spends time on both his maternal and paternal aspects. Both his parents are able to provide him with a comfortable and well-resourced existence. One household is not materially superior to the other.
Ms Meyer no longer works shifts since becoming the (occupation omitted) in (employer omitted). Her hours are flexible and she does not need to access day care to any great degree if X lives mainly with her. She would be able to take him to all necessary appointments and undoubtedly, if she is successful in her application, she will be a fully involved parent at X’s school.
In this regard, she proposes that X attend (omitted) Public School, which is located 500 metres from her home. She asserts that it is the best primary school available in the (omitted) area.
In February of 2013, Ms Meyer, Mr P and X moved house. Their new home is bigger than the property Ms Meyer originally bought in (omitted). It has two fenced outdoor areas and is close to a number of parks.
Mr P and Ms Meyer have been involved with one another for over three years but have proceeded gradually with their relationship because of concerns for X’s sensibilities. Mr P moved in with Ms Meyer in October 2011. Mr P has worked for seven years in the (omitted) industry. He is also a part-time (occupation omitted).
Mr P was a pleasant and fit looking person. He enjoys an active lifestyle. He and Ms Meyer are involved with taking X on bushwalking and camping trips and other enjoyable activities for children in the Canberra area. I accept that Mr P is a positive element in X’s life. X has a dog at his mother’s place.
Mr P and Mr Shipton do not know each other well and the relationship between them appears somewhat uneasy. Mr P has some criticism of Mr Shipton’s parenting, regarding it as being indulgent and permissive. In this context, Mr P asserts that:
“… I feel we [he and the mother] do the day to day parenting. Mr Shipton does grandparenting parenting … not the hard yards.”
Like many children of his age, X is a devotee of Skylanders. Skylanders is a video game, which is played through toy figures which light up when placed in the Wii or computer console. The relevant manufacturer releases new Skylanders regularly, which range in price from around $9.00 to $14.00.
Ms Meyer and Mr P bought X a bicycle and Wii for Christmas and his birthday. X also has a Wii at his father’s home. Mr P is critical that this was not purchased in conjunction with any specific special occasion in X’s life. Other controversies arise between the parties as to the number of Skylanders which Mr Shipton buys X from time to time.
Given the ubiquitous power of marketing, it is likely to be difficult if not impossible to quarantine X from the lure of Skylanders in either of his parent’s households. Mr P concedes that Ms Meyer have purchased Skylander, lego and t-shirts for X, some for his birthday, but have not purchased the actual Skylander game.

This is not a case where there is a great disparity in the financial resources available to the parties concerned. It is however Ms Meyer’s perception that Mr Shipton has more surplus cash available than she does and he uses it to buy presents for X, particularly skylanders.
I accept there is a certain amount of keeping up with the Joneses so far as Mr Shipton is concerned. When Ms Meyer and Mr P got X a Wii, for Christmas, he followed suit soon after. However, I do not categorise this behaviour as being any sinister or overt attempt, on Mr Shipton’s part, to buy X’s affections.
It is likely to be the case that many individuals, including the most competent of parents, have divergent views as the appropriateness or otherwise of giving presents to a child on occasions other than birthdays and special occasions. I have no desire to enter into any such controversy and do not believe it is my function to do so in the course of adjudicating this matter.
What I will say is this. Both parties acknowledge that they give X presents from time to time. We live in a highly consumerist society and children and their parents are amongst the most vulnerable of consumers, so far as marketers are concerned.
In these circumstances, it is often difficult for a parent to resist the blandishments of children and those who cater for their needs. The parties, different as people are different as parents and as such are likely to react differently to these consumerist pressures – the mother with a modest colouring book; the father with a skylander.
Perhaps there are aspects of competiveness in the father’s conduct, but in my view, his behaviour in respect of toys for X cannot be regarded as being beyond the pale or otherwise beyond what is acceptable parenting. In my assessment, it does not indicate that Mr Shipton has unduly influenced X in any way. The child’s preference is the child’s preference.
Accordingly, it is my finding that X leans more towards his father and family in (omitted) than otherwise. However, his mother and his maternal family are equally important to him, so far as his on-going emotional integrity is concerned.

c) The extent to each of the child’s parents has taken, or failed to take, the opportunity to be involved in decision making and to spend time or communicate with the child

The parties share one essential attribute, so far as X is concerned. They are each fully committed to being as fully involved as possible in every aspect of his care. As such neither is willing to abrogate any decision making responsibility for X to the other and each wants to spend as much time as possible with him. Neither can be described as a disinterested parent.

ca) Provision of financial support for the child

Both parties are PAYG taxpayers, whose income is readily amenable to assessment by the child support regime. In any event, there is no suggestion that either will fail to provide an appropriate level of financial support, for X, regardless of whatever level of personal disappointment arises from the court’s ultimate decision in the matter.

d) The likely effect on the child of any changes in their circumstances

No matter what is the outcome of the case, 2014 will be a year of change and transition for X. It will mark the start of the long process of his education. More importantly, it marks the start of him living more in one of his parent’s homes than the other.
At this stage, the court must attempt to make some form of assessment of how dramatic, for X, each of these changes are likely to be and determine who of the parties is better placed to manage the transition for him. Of course, this cannot be a precise exercise.
At the outset, it should be pointed clearly out, that these changes do not represent a leap into the dark for X. He is a sociable child, who is accustomed to attending child care and interacting with other children. He knows he must start school soon. In this regard, he has visited both of his prospective schools.
In addition, he is intimately familiar with both his mother and his father’s homes. Whatever is the outcome of the case, X will continue to spend time regularly with each of his parents. I am also satisfied that both Ms Meyer and Mr Shipton are equipped to support X, in any process of adjustment arising from his new circumstances, from the start of 2014 onwards.
Both have said that, if X becomes distressed at being separated from his other parent, when his care regime changes, they will take all necessary steps to ensure X is able to touch base with that parent. I accept their respective assurances in this regard.
Accordingly, the considerations arising under this criterion are finely calibrated. It is Mr Shipton’s contention that, given X’s innate orientation towards (omitted), his identification with Ms H and his degree of connection with the school, which she currently attend, the changes arising from Mr Shipton’s proposal will rest less heavily on X.
On the other hand, Ms Meyer asserts that she is the more insightful parent and the one better placed to handle X’s emotional distress. In the submission of her counsel, Ms Tonkin “history is a good predictor of the future.”
In which pithy statement, she alludes to Mr Shipton’s involvement with Ms S, which occurred independently of Ms Meyer. He has needed professional support managing X’s emotions; she has not.
Ms Meyer points to the fact that it has been Mr Shipton who has been the parent who has experienced the greater difficulty at handovers and who has been compelled to seek professional assistance, where she has always been able to settle X without outside assistance.
Accordingly, it her submission that she is by far the better placed parent to deal with any sequellae of grief or loss, which X may experience upon him being separated from his father upon the cessation of the long standing shared parenting regime.
I consider that both parties’ positions are likely to be correct. The transition, for X, of starting school and living in (omitted) is likely to be marginally less dramatic for him than the counter proposal. It also seems to me to be the case that Ms Meyer is better at dealing with X’s distress and significantly of quarantining him from her own feelings, including those arising when she herself is personally upset.
Both parties indicated to Ms D how devastated they would feel if the case goes counter to their hoped for outcome. Undoubtedly this is true. Both parties have invested significantly in the case, both in financial and emotional terms. Necessarily the unsuccessful party will have to deal with a difficult process of adjustment to his or her new circumstances.
Importantly, he or she will have to shield X from exposure to these potentially powerful emotions and so prevent him becoming, in turn, burdened by them. In my view, Ms Meyer has clearly demonstrated that she is superior in this regard. She is likely to present to X in a much more business-like and detached manner, if the case turns out adversely for her.

e) The practical difficulties and expense of the child spending time and communicating with each of his parents

The parties have demonstrated, over the last three years or so, that they are adept at managing the distance between (omitted) and (omitted) and of ensuring that X spends regular periods of time with each of them. I am confident that the change of circumstances, which will commence from 2014 onwards, will not interfere with this in any way.

f) The capacity of the parties to provide for the child’s emotional and educational needs

i) The attitude that each parent has demonstrated to the responsibilities of being a parent

These considerations are closely inter-related and, in my view, it is convenient to consider them together. At the outset, it is my view, that both Ms Meyer and Mr Shipton share a commitment to being the best possible parent they can be for X. In this sense, they are each good and responsible parents.
However, from Ms Meyer’s perspective, these are the seminal considerations for the court and militate significantly in her favour. It is her position that the evidence currently available to the court and the history of the parties’ parenting during the three years of the equal time regime clearly demonstrate that she is superior and more insightful parent.
Like all individuals, the parties have idiosyncratic strength and weakness in their personalities and so in their parenting. I accept that Ms Meyer is likely to provide more structure to her parenting of X, whilst Mr Shipton relates to X, more on his level, and as such is more laissez-faire in his parenting.
Both parenting styles have things to recommend them, but I accept that they are not easily congruent with one another. The difference is best encapsulated by Mr P’s statement that he and Ms Meyer do the day to day parenting of X, whilst Mr Shipton does grandparent parenting.
This is an overstatement. Mr Shipton takes proper care of X and makes sure he is appropriately fed, clothed and has his other needs met, as required. In this sense, I have no doubt that, in Mr Shipton’s household, he is the parent and X is the child.
I do not accept that Mr Shipton is incapable of imparting necessary discipline on X or providing him with some boundaries in what he can or cannot do. In this regard, Ms D regarded X as a pleasant and well-socialised child, who is secure in the formation of the various important relationships in his life. He is not a child whose behaviour causes him to run amok. That he is so is a credit to both parents and indicates that both are getting it largely right, so far as X is concerned.
I have already commented on the issue of spoiling and the provision of toys, particularly skylanders for X. Mr P acknowledges that his and Ms Meyer’s household is not free of the allure of these toys. They have provided X with skylander tee shirts and lego, as presents on his birthday and at Christmas. They also bought him a Wii, although prior to Mr Shipton’s similar purchase.
The criticism they make of Mr Shipton is that his presents are too generous, too frequent and occur strategically. I can appreciate their criticism, but do not consider that this is bad parenting inherently. Rather, I consider that what does or does not constitute spoiling of a child is very much a matter in the eye of the beholder.
Ms Meyer does not approve of the giving of too many skylanders. It would be preferable if the parties could have a common policy in regards to such things, but Mr Shipton’s gifts in this regard cannot be regarded as outlandish or extraordinary. More particularly, they do not appear to have done X any intrinsic harm. He is and remains a pleasantly socialised child.
The topography of the parties’ parenting relationship is rocky indeed. X has been transitioning between his parent’s respective homes for the majority of his life. Contrary to professional orthodoxy, he is doing well in the regime and all agree that he is thriving in it.
However the dynamics of the relationship are not without their challenges, the chief of which are poor communication skills and an endemic level of mistrust. In my view, I would be naïve to consider anything other than the parties must each share a significant level of responsibility for these unfortunate circumstances, which are not conducive to X having a happy and settled childhood.
This difficult dynamic has made handovers problematic from time to time. Both parties have had to deal with their own sadness and anger at the demise of the relationship between them. The father has found these challenges more difficult and they have been more problematic for him than for Ms Meyer.
In these circumstances, I find that the mother is the better parent at dealing with managing X’s challenging behaviour from time to time. She is more adept at regulating his emotions. I further accept, in the terms utilised by Ms Tonkin, that Ms Meyer has a “greater reflective capacity” than has Mr Shipton.
In this sense, she is likely to be the superior parent. She will be better placed both to encourage X to spend time with his father and, through the maintenance of her own emotional composure, to quarantine the child from her own feelings.
She has a capacity to explain things to X, in terms likely to be understandable to him, which is most typically exemplified by her account of the parties’ relationship with one another and their respective feelings for X, following her categorising Mr Shipton as a “bully” to him.
I accept that there has been an element of emotional neediness in Mr Shipton’s relationship with X, particularly in the period following the parties’ separation. Mr Shipton was obviously both angry and bewildered in this period. Ms D categorises him as becoming very focussed, in these circumstances, on his relationship with X.
However, again, there is no definitive evidence that this state of affairs has had a quantifiably deleterious effect on X. It may not be optimal parenting, but it is readily understandable, given Mr Shipton’s position and his overall emotional make-up. More significantly, in my view, the evidence indicates that Mr Shipton has adjusted significantly to his changed circumstances.
The problems surrounding handover appear to be resolving. X is now more settled. Why this is so is difficult to explain in definitive terms. X is older and Mr Shipton is likely to have taken on board the advice provided to him by Ms S.
However, in my assessment, the parties’ parenting relationship remains difficult and competitive. Given the advent of these bitterly contested proceedings, it is unlikely that 2013 would mark any dramatic advance in the parties’ respective capacity to empathise and communicate with one another.
The long shadow of what the court must now decide has hang over much of the parties’ interaction with one another, during the year and a half gone by. It has led to some unfortunate things, including Mr Shipton’s video-taping of X; his failure to advise Ms Meyer of X’s involvement with Ms S; and the botched meeting of March 2013, in (omitted).
These incidents cannot be characterised as an appropriate response to the responsibilities of being a parent. Rather, they demonstrate a defensive and insecure attitude. Mr Shipton was unwilling to involve Ms Meyer in significant aspects of X’s care. He went about important matters to do with X’s psychological management in a clandestine manner.
Yet X remains a happy and thriving child. I accept that Mr Shipton can manage the day to day nuts and bolts of parenting him. Perhaps he does so in a differently qualitative way to Ms Meyer, but he remains a capable parent. Certainly, there can be no doubt that X knows he is loved by his dad.
This, more than anything else, exemplifies the great difficult arising in the case. Both parties are good parents. They are not damaged by the lifestyles they have chosen. Rather, they are unexceptional and law-abiding citizens.
In attempting to differentiate between them, the court must search out the minutiae of their personalities and the intricacies of their responses to difficult circumstances, knowing that each would never knowingly do anything which might cause the remotest kind of harm to X.
In this sense both parties share a commitment to ensuring X’s emotional and educational needs are properly met in future. They are likely to share the same aspirations in regards to supporting X’s progress at school and in extramural activities. They both love X and support the child’s entitlement to express his love for the other parent. Essentially, both parties are good parents.
Necessarily, in these circumstances, the process of differentiating between their respective parenting skills is likely to be both highly artificial and subjective. I approach the exercise with both extreme caution and reluctance, bearing in mind, by dint of their different personalities, the parties are likely to bring different strengths and insights into their parenting of X.
However, in my view, the mother’s more reflective and controlled personality, particularly in regards to her capacity to manage X’s emotions, make her a marginally more insightful parent than Mr Shipton, who is reactive, at times, in his parenting.

g) The child’s maturity, sex, lifestyle and background

I am well aware that X is only five years of age. As such his life is very much a work in progress. His current orientations have the potential to change with time. Accordingly, it may be the case that, in future, he will cease to be a daddy’s boy.
The parties’ respective backgrounds are broadly similar. They grew up in (omitted). There is no great rift, in terms of background or socio-economic circumstances, which X will have to cross, each time he moves between his parents’ respective homes.

h) Aboriginality

This is not a relevant consideration in this case.

j) Family violence

k) Any family violence order

I have discussed family violence issues at length in the earlier portions of these reasons for judgment and do not feel it necessary to revisit this aspect of the case. There are no family violence orders relevant in these proceedings. As far as I have been advised, neither party has ever sought a family violence order against the other.

l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
Considerations such as these underlie the so-called rule in Rice & Asplund, to which I have already eluded and which arose in the earlier proceedings before Judge Brewster. From Mr Shipton’s perspective, the issue of where X was to live and go to school was determined definitively by the parties in November of 2010, when the consent orders were made at the Local Court at Wagga Wagga.
He is critical of Ms Meyer for agitating the court to revisit this arrangement, which he would characterise as being an appropriate one, reached voluntarily and consensually between the parties, after each had had ample time to consider its implications, both in the short and longer term.
If the parties were not each made of flesh and blood, this would be a valid criticism. Although I accept that Ms Meyer did not agree to the orders being made because she was coerced or compelled to do so by Mr Shipton, I think it simplistic for him to consider that it was appropriate for binding arrangements to be made, for the child’s living and schooling arrangements, when he was barely two years of age. Necessarily, much water has flowed under the bridge, in the period since, and issues once inchoate have taken form.
For her part, as I have indicated, Ms Meyer, perhaps weakly, elected to bury her head in the sand about what was likely to happen in late 2013/ early 2014 and hoped for the best. If the parties had each closely searched their hearts and minds, in 2010, I suspect both are likely to have realised that it would always have had to come to this and there would have to be an adjudication about the on-going viability of the shared parenting regime.
The reality is that X has done well in the shared parenting regime, despite all the contrary indications regarding its viability. If it was at all possible, I accept both Mr Shipton and Ms Meyer would want it to continue.
However that cannot be. In these circumstances, neither party can be criticised for bringing the matter back to court. Regrettably litigation is the only mechanism available to resolve the impasse between the parties.

I accept that both parties have resorted to litigation with extreme reluctance. This is particularly so in the case of Mr Shipton, who is likely to continue to think that the case is grossly unfair to him, given the contents of the November 2010 order.
In all these circumstances, I would anticipate that neither party (putting aside the issue of an appeal from any orders made in these proceedings) is likely to precipitately return to court, seeking further orders, regardless of what is the ultimate outcome of the case.

Conclusions

As I hope is clear, after five hundred odd paragraphs of judgment, I have not found this an easy case to decide. It remains finely balanced. Like Ms D, I find myself sitting on an uncomfortable fence.
I can see compelling advantages, arising for X, from living both in (omitted), with his mother and in (omitted), with his father. I see few, if any, deficits in either such outcomes, other than those which relate to practicalities and the distance between the two locations.
Both parties are loving and responsible parents, who each have much to offer X, as do the other relatives who are associated with Ms Meyer and Mr Shipton respectively. Neither is disqualified from being closely involved in X’s life by some major flaw in their chosen mode of life or because of some failing in their character.
Neither parent is to be regarded as a damaged person as a consequence of exposure to the vicissitudes of life or as a result of some major crisis befalling him or her. Such a situation is a rarity in the very many parenting matters which come before me each year.
However a decision must be made and the parties are entitled to know where they each stand, so they can begin to adjust to their new circumstances. In this context, I remind myself and them that this decision does not mean X will become a stranger to one of them. The distance between their two homes is not so great that it will prevent X spending significant and substantial time with both his parents.
At this stage, it is my responsibility to closely weigh and balance the various factors arising under section 60CC of the Family Law Act to reach the result, which I consider will best serve X’s interests, both now and in the longer term.
The parties agree that the presumption of equal shared parental responsibility should be applied to their future parenting of X. Clearly, this is appropriate. As a consequence of the presumption, the court is then mandated to consider an equal time regime.
Due to logistical considerations, chiefly the distance between (omitted) and (omitted) and the fact X must attend one primary school from 2014 onwards, it is not objectively practical for there to be such a regime of care, although theoretically it would serve X well, given arrangements for his care up to this stage.
For reasons already delineated, I am satisfied that if X spends alternate extended weekends, of Friday afternoon to Monday morning, augmented by an intervening Wednesday night, during the school term, together with one half of each school holiday period, with his non-residence providing parent, this will amount to substantial and significant time for the child.
Accordingly, the question to be resolved is who that parent should be. This must be provided by a process of weighing and balancing the various section 60CC factors, including what is X’s innate preference, informed by the intrinsic nature of his relationship with each of his parents. This has been called a process of intuitive synthesis.
In another context – that of relocation, I rejected that approach. I said as follows: “I mistrust any reference to intuition in the judicial process. The rationale of judgment is to be didactic.” [39]
[39] See Tellam & Calhoon [2013] FCCA 1118 at [430]
Now I am not so sure. At the end of all the evidence and after, I hope carefully considering it all and the various legal principles applicable to it, my sense is that X is a better fit in (omitted) than in (omitted). In (omitted), he has his cousins Mr R and Ms H, who have become quasi-siblings to him. X has an expectation that he will go to the same school as they do.
I accept that by a very slight degree indeed, the greater weight of X’s life is in (omitted), particularly because the nature of his family in (omitted) is more extended. In (omitted), X spends significant and regular periods of time with his paternal grandparents, his cousins and his aunt. By dint of the frequency of his interactions with these individuals, X is likely to have a strong and abiding sense of connection to (omitted) and those of his family who live there.
But above all X identifies with his father. He is a daddy’s boy. I accept his innate preference, confusing and difficult as its exercise must be for a five year old child, is to live mainly with his father.
If X is a better fit in (omitted), it is only by micro-millimetres and nothing more. Ms Meyer is an excellent parent, an intuitive and insightful parent. In many ways, a less embittered and more magnanimous parent than Mr Shipton.
However, X is not to be awarded, like a prize, to the more deserving parent. Rather, I have to do what I think is likely to be best for X. Heartbreakingly difficult though the decision is, I consider that he will be better off living in (omitted), with his father, because of his inherent orientation towards his father.
Because of her qualities as a parent, I am satisfied that Ms Meyer will be able to support X appropriately, in the transition to living more with his father and through any difficulties, which may arise for him from this process. One of the ironies of this case is that this positive attribute, which she has in far greater qualities than Mr Shipton, militates in his favour rather than her own.
Given her innate strength of character and the very many positive aspects of her parenting, I am satisfied that Ms Meyer and X will be able to continue to have a meaningful level of relationship together, notwithstanding X lives predominantly in (omitted) in the future. X will continue to benefit from seeing his mother frequently.
To their great credit, the parties have essentially agreed what should be the outcome of the proceedings, other than for the one major issue of where X was to live predominantly. I will make orders in accordance with their agreement.
X’s birthday is a significant day for both the parties themselves and especially for X himself. On my calculations, for the next five years, his birthday falls on consecutively a Saturday (2014); a Sunday (2015); a Wednesday (2016); a Thursday (2017); and a Friday (2018).
Some of those days will fall on days when he is in his mother’s care, others obviously not. In those circumstances, I will not make orders that specifically deal with birthdays on the understanding that it is a given that the parties will do whatever is necessary and appropriate to ensure that X has the opportunity to spend at least a portion of his birthday with each of his parents, if this is at all possible.
The easiest and most logical place for the parties to exchange X is at his school in (omitted). This may not always be practical, given the distance between (omitted) and (omitted). The default location for handover will be at (omitted), which is about half way between the parties’ respective homes.
Finally, it is obviously appropriate that both parents be able to liaise with X’s school and any medical person involved in his care and to attend at all school and extramural events in which he is involved.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding five hundred and forty-four (544) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 19 December 2013

[2013] FCCA 2198

19 December 2013

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Consent

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Procedural Fairness