Minchini and Stacey

FAMILY COURT OF AUSTRALIA

MINCHINI & STACEY

[2012] FamCA 738

FAMILY LAW – CHILDREN – Presumption of equal shared parental responsibility – Where parties are unable to communicate – Where the mother is the child’s primary attachment figure – Where the mother raised concern over the father’s capacity – Assessment of parenting capacity – Where allegations of family violence – Young child - Nature of child’s relationship with the father – Where the child’s long term interests require time spent with father – Where Court is satisfied equal shared parental responsibility is appropriate – Where family violence not established - All prior orders discharged and transitional regime of increased unsupervised time ordered.

Family Law Act 1975 (Cth) - Part VII, s 60B, s 60CA, s 60CC, s 60CC(2)(a),(b), s 60CC(3), s 60CC(4), s 60 (CG), s61B, s 61C(1) s 61DA(2), (4), s 64B, s65AA, s 65DAA(1)(a), s 65DAA (2)(c), s 65DAA(3), s 65DAA(4), s 65DAA(5)
Evidence Act 1995 (Cth) s 140

Goode & Goode (2006) FLC 93-286
Jones & Dunkel (1959) 101 CLR 298

APPLICANT:

Mr Minchini

RESPONDENT:

Ms Stacey

FILE NUMBER:

NCC

226

2011

DATE DELIVERED:

30 May 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

15-17 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bates

SOLICITOR FOR THE APPLICANT:

Braye Craggs Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hamilton

SOLICITOR FOR THE RESPONDENT:

Thomas Mitchell Solicitors

Orders

That all prior orders made in relation to the child, B born … November 2009 (“the child”) are discharged.
By Consent, that Ms Stacey (“the mother”) have sole parental responsibility in relation to where the child shall attend school.
Subject to Order 2 above, that the mother and Mr Minchini (“the father”) have equal shared parental responsibility for the child.
By Consent, that the child live with the mother.
That the child spend time with the father as follows:
a.until the child turns three years each Saturday from 10.00 am until 4.00 pm, in relation to which changeover for so long as the parties agree shall take place by the mother delivering the child to the father at his home and the father returning the child to the mother at her home unless a party requires that changeover take place at Contact Centre R;
b.thereafter and until the child turns four years, each weekend from 10.00 am Saturday until 5.00 pm Sunday in relation to which for so long as the parties agree shall take place by the mother delivering the child to the father at his home and the father returning the child to the mother at her home unless a party requires that changeover take place at McDonalds at Suburb K;
c.thereafter, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday until the end of Term 1 Kindergarten (2015) in relation to which for so long as the parties agree shall take place by the mother delivering the child to the father at his home and the father returning the child to the mother at her home unless a party requires that changeover take place at McDonalds at Suburb K;
d.from the commencement of Term 2 Kindergarten (2015), during school term alternate weekend time shall extend to commence from the finish of school Friday until the commencement of school Monday (including the adjacent day if it is a public holiday or pupil free day), in relation to which changeover shall take place at school, and
e.at such other times as the parties agree.
That in addition to the time provided for in Order 5 above, the child shall spent time with the father as follows:
a.until the child starts school, on the child’s birthday from 4.00 pm until 6.00 pm;
b.for block and school holiday periods commencing 2014 and until the child turns five years, excluding Easter and times when pursuant to these orders the child will spend special occasions with the mother, for additional periods of two consecutive days and nights adjacent to weekends when the child will be with the father which shall commence and conclude at 12.00 noon;
c.from when the child starts school:
i.from after school until 6.30 pm on the child’s birthday in years ending in an odd number, and in years ending in an even number from after school until 6.30 pm on the day before the child’s birthday;
ii.for two periods of one week taken during the shorter school holidays at times nominated by the father in writing no less than two months in advance; and
iii.for two consecutive weeks during the Christmas school holidays, the dates and times to be nominated by the father in writing no later than 1 October each year.
d.during the Easter break:
i.from 5.00 pm Easter Sunday 2013 to 12.00 noon Easter Monday 2013;
ii.from 5.00 pm Easter Saturday 2014 to 12.00 noon Easter Sunday 2014; and
iii.alternating in the same pattern thereafter.
e.over the Christmas period:
i.from 5.00 pm 24 December 2012 to 12.00 noon 25 December 2012;
ii.from 5.00 pm 25 December 2013 to 12.00 noon 26 December 2013;
iii.from 5.00 pm 24 December 2014 to 3.00 pm 25 December 2014 and 3.00 pm 25 December 2015 to 10.00 am 27 December 2015; and
iv.alternating in the same pattern thereafter.
f.from when the child turns four years on Father’s Day from 9.00 am until 5.00 pm;
Notwithstanding any order to the contrary, the father’s time with the child is suspended as follows:
a.on the Mother’s Day weekend from 5.00 pm the day before Mother’s Day;
b.from when the child turns three years and until he turns four years, if the mother’s birthday and/or N’s birthday falls on a weekend, that weekend;
c.from when the child turns three years and until he turns four years, if in any calendar month there is a fifth weekend, that weekend as well as five additional weekends nominated by the mother in writing no less than four weeks in advance, upon condition that the nominated weekend does not coincide with the father’s birthday or another special occasion referred to in these orders and does not result in the child not seeing the father for more than two weeks..
The mother facilitate the father’s telephone contact with the child between the hours of 5.00 pm and 6.00 pm each Wednesday evening when the mother will make the child available and facilitate the father’s call to her mobile telephone number.
In the event that the child is unable to spend time with the father on any weekend or during school holidays the father notify the mother by telephone on the number the mother provides to the father not later than 5.00 pm on the day before the period of time the child was to spend with the father was due to commence.
That each party provide such requisite consents and/or authorities as may be required by the school or schools that the child attends to enable each parent to receive reports, school photograph order forms, letters, newsletters, circulars or any other notices in relation to the child and to permit both parties to speak to the child’s teachers concerning his school performance.
That each party keep the other informed as to the child’s health and medical treatment, including any medication required to be taken by the child from time to time and the appropriate dosage of such medication, and provide such consents and authorities as may be required by any medical practitioner treating the child to allow the provision to the other party of information and medical reports in relation to the child.
That each party is to telephone the other as soon as practicable upon the happening of any of the following:
a.the child becoming seriously ill;
b.the child being hospitalised;
c.the child being involved in an accident.
That the parties keep each other informed of their current residential address and telephone number.
That each of the parties be restrained from denigrating the other or any member of the other’s household in the presence or hearing of the child and as far as possible prevent any other person from denigrating the other party or member of the other party’s household in the presence or hearing of the child.
That the child henceforth be known as B Stacey-Minchini and the mother be at liberty to approach the Registrar Births, Deaths and Marriages in the State of NSW to have such name recorded on the child’s birth certificate. Upon the issuance of a new birth certificate the mother shall provide the father with a copy.
Unless otherwise specified in these orders, other than when the child may be returned to school at the conclusion of any time with the father the father’s time shall be implemented by the mother delivering the child to the father at C Square and by the father returning the child to the mother at the same location at the conclusion of the child’s time with him.
Nothing in these orders prevents a party from arranging for a nominee to, on occasion, effect changeover provided that the nominee is well known to the child and the other party is notified in advance.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding parenting applications are dismissed.
By Consent all outstanding financial applications are otherwise withdrawn.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 226 of 2011

Mr Minchini

Applicant

And

Ms Stacey

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.
These are proceedings for parenting orders in relation to the parties’ son, B (“the child”) who was born in November 2009. The child was about nine months old when his parents separated. Since separation he has continued to reside with Ms Stacey (“the mother”) in the family home.
Until orders were made which provided a structure for the child to spend time with his father, Ms Minchini (“the father”), the father’s time with the child was brief and erratic. Its brevity was driven by the mother’s concern about the father’s parenting capacity, the child’s young age and ability to be away from her for more than a few hours at a time, and her anxiety that the father might abduct or harm the child. According to the mother the father was physically violent and abusive towards her and in the child’s presence. She said that she was afraid of the father and concerned to ensure that the child is not exposed to an unacceptable risk of exposure to family violence. In that regard, she regularly reported what she describes as his threatening and/or violent behaviour to Police and obtained an interim Apprehended Violence Order (“AVO”), which was ultimately dismissed. None of the mother’s complaints to Police resulted in Police taking action against the father for her or the child’s protection. For reasons which will be discussed later, no criticism of the Police in relation to their decisions to not take action should be made.
The father denied that he was violent towards the mother, albeit he said she gave a selective account of what took place between them. He said that twice he physically responded to her physical aggression. According to him, but denied by the mother, during their short cohabitation she occasionally hit him. Whatever she did, her actions did not cause him to feel afraid. Essentially, the father claimed that the mother has tried to manipulate Police and others in pursuit of her desire that he has as little time with the child as she can achieve. Nonetheless, he agreed that the child should continue to live with the mother who, there is no dispute, is the child’s primary carer, loves him deeply and competently cares for him.
Notwithstanding the factual disputes inherent in the parties’ respective cases, the orders sought are not vastly different. Essentially, the pivotal matters which require consideration are:
·whether the mother should have sole parental responsibility or the parties have equal shared parental responsibility;
·whether supervised time should continue for another six months;
·whether overnight time should start when the child is three or four;
·the venue for changeover;
·differences in the configuration of eventual alternate weekend time;
·differences in when block period time should commence and whether the child should ever spend two consecutive weeks with the father; and
·whether the child’s surname should be changed to include, as a hyphenated name, the mother’s surname.
Immediately before I delivered these reasons, the parties informed me there was a vast improvement in their willingness and ability to co-parent. Simply put, after the hearing and at the mother’s instigation, they spoke about how they might work together as parents. Upon mature reflection much of the material explored during the hearing was placed in the dustbin of history and a forward rather than backward looking approach adopted for the future. To me they said things had and would continue to improve and already the child’s time with the father had increased and supervision was abandoned.
In light of this significant change in circumstances I asked whether they wanted me to deliver my oral reasons. The father did. However, so as not to disrupt this pleasing improvement in the family’s circumstances, not all factual matters will be discussed in detail. Those matters which have clearly become irrelevant will not be mentioned.

Background Facts

Findings of fact will be determined upon the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
The father was born in 1969.
The mother was born in 1972.
The parties met and commenced a relationship in April 2007.
When they met the mother lived at Suburb C, Newcastle in a home she purchased in 2005. She works in personal services and worked fulltime from her home.
The father also hails from Newcastle. However, for many years he has worked as a tradesman in mines and various remote locations. When the parties met he was worked at Island G in the Northern Territory.
The parties disagree about when they started to live together, but agree that from early 2007 until a few months after they married, the father continued to work in the Northern Territory and returned to Newcastle for periods which were generally spent at the mother’s home.
There is no issue that in late 2008 the father lost his job and that the parties became estranged. By February 2009 the parties were reconciled and shortly after became engaged. Having found a new job, once again, the father’s work took him to remote locations. Effectively, he was a fly-in/fly-out worker, albeit his periods away from home were reasonably extensive.
While the parties had been estranged the mother commenced IVF treatment, it being her idea that she should not delay becoming pregnant. This involved donor insemination and probably raising the baby alone. In the event, the parties reconciled and the mother fell pregnant to the father with the subject child.
The mother has since had a child by IVF donor insemination, N. N’s father is a known donor who resides in Canada.
When the parties married in May 2009 the mother was pregnant with the child. After their marriage the father continued to work away and it was not until about September 2009 that his employment enabled them to live together fulltime. At about the same time, she commenced maternity leave. She has not returned to paid work, and it is likely that she will dovetail work with her primary commitment to her children’s care.
The child was born in November 2009.
Ready agreement was reached in relation to the child’s christian and surname. The father compromised his preference that the child not have a middle name. In this respect, the mother’s desire that the child’s name include a connection to her family was acknowledged by the parties’ decision that the child would have his maternal grandfather’s name as his middle name.
In anticipation of the child’s birth, the father arranged two weeks leave so that he could be at home with the mother and their new baby. After one week he returned to work. According to the father, he did so at the mother’s suggestion. She claims his decision was not the best decision for her and their baby.
There was a theme in the mother’s case that the father prioritised employment ahead of family obligations and post-separation, his relationship with the child. In this regard, emphasis was placed upon the father’s long work days, he has many weeks of recreation leave and him continuing to work for employers who, from time to time, require that he works away. In this regard, once again, the father will shortly commence periods of working away. The spectre loomed large that for the foreseeable future, it may be he can only spend time with the child each alternate weekend.
Another theme in the mother’s case related to the extent that, prior to separation, he contributed to household expenses and what she says was him unreasonably limiting her access to his income and savings. Until the parties separated under the one roof, whether by access to her income (before she commenced maternity leave), her tax refund cheque or money provided by the father, the mother had adequate income. Nonetheless, the parties agree they argued over money and it would appear they genuinely disagreed about the amount required for day to day living and the amount allocated to savings. In her oral evidence, the mother questioned how the father could have acquired real estate as young as he did other than by nefarious means. Although there is no factual basis for her to cast aspersions about the legality of how the father established a reasonable property portfolio, the answer may lie in his having always worked hard and lived frugally. In any event, the father’s employment history is to his credit and, it is appropriate to observe, enables him to pay considerable child support, presently in the vicinity of about $1,000.00 per month, and, as well, to have suitable accommodation where he can spend time with the child.
Clearly, though, the father’s commitment to his work meant that during the period the parties cohabited day-to-day running of the home and overwhelming responsibility for the child’s care fell to the mother. Just as the father carried a significant burden in relation to his employment, one cannot underestimate the effort that was required of the mother, substantially on her own, after the child was born.
In relation to the parties’ financial arrangements two other matters require comment. Inexplicably and for no reason associated with the child’s welfare, in April 2010, the father removed the mother and child from his private medical insurance. So that it is clear, this was a unilateral decision which reflects poorly on the father, and particularly in relation to his parental responsibilities. Plainly this is something he should not have done. Secondly, attached to the mother’s affidavit is a copy of the father’s bank account into which he deposited rental income and to which the mother had access. The father’s evidence that he experienced difficulty with his bank in relation to this offset account is accepted, as is his evidence that the transfer of funds related to problems with the lender, and was not undertaken to cause difficulties for the mother. That said, her evidence that it did cause her some difficulty is accepted.

Returning then to issues about the child’s care. As has already been mentioned, there is no dispute that from birth the mother has been primarily and overwhelmingly responsible for the child’s care. Nor is there any doubt that she has lovingly and competently attended to his needs.
There is an issue about the extent of the father’s involvement in the child’s care prior to separation. In this regard, the gravamen of the mother’s evidence is that the father was a reluctant changer of nappies, only twice showered with their baby and slept downstairs to avoid having to get up at night to a crying baby. No issue is raised by the father that his was very much a secondary carer role, limited by his unavailability because of work and, it would seem, the mother’s enthusiastic and hands on care of the child from the outset. On balance, I am persuaded that the father was involved in the child’s care along the lines outlined at paragraph 8 of his affidavit, albeit that there were occasions when he was unable to settle the child. There is no doubt that the mother got up to the child at night far more often than did the father. However, it is appropriate to observe, for example, that when the mother telephoned Police when the father kept turning the television off when she wanted to watch “Home and Away” that the child was in the kitchen being attended to by him. Also, tendered in the mother’s case are photographs of the child and the father, in particular, the child and the father at a local club when the child was only a few weeks old. The father’s face beams with joy at the child and dispels any notion that he was a disinterested parent.
By February-April 2010 tensions were high between the parties and their relationship began to unravel. There were not infrequent arguments about money and according to the mother two incidents in which the father physically assaulted her. This is a matter to which I will return.
Matters came to a head on 24 and 25 May 2010. On that day, the mother telephoned Police in relation to the “Home and Away” incident. Police records are in evidence and reveal that the mother first called Police to the home early that morning. The records show that the Police spoke to the mother
She told Police that she wanted her husband, [the father] out of the house, because she had had enough of him. She told Police he had threatened to … leave her with nothing and take away their son if she tried to leave him. She told Police he had never made any threats to hurt her but he was a control freak and she wanted him out of the house and out of her life. Police told her he was entitled to be in the house as it was a joint possession and that if she wanted to end her relationship with him she should seek legal advice. Police advised her to go and stay with a friend if she did not want to live with him anymore. She declined a DVARS card because she already has a counsellor from Relationships Australia.
It was later that day that the argument developed in relation to the television show. The Police records show that they attended the parties’ home at 10.00 pm where they spoke to the mother
[the mother] stated that her husband was causing her to be upset all the time and she would like him removed from the residence. [The mother] stated that her husband had changed the channel on the TV intentionally to stop her from watching “Home and Away”. Police informed her that we would not remove her husband if he had not committed any offence. Police also advised her to get in touch with the Family Law Court. Police offered [the mother] DVARS which she declined.
If, as is alleged by the mother in her affidavit and as expanded in her oral testimony, the father had physically abused and threatened to hurt her, here was an opportunity to inform the Police. Although, during cross-examination, the mother said she spoke to Police about the “Home and Away” incident only and her desire to have the father leave the home, the Police records clearly document her reference to there being no prior threats or physical violence. So that it is clear, I do not accept that the mother failed to disclose matters to Police out of fear of the father or that she spoke to Police that day only about the events of the day.
In relation to the events of that day and the mother’s allegations about prior physical violence and threats of possible harm, the information recorded in the police statement tips the balance in favour of the father’s evidence being preferred. As subsequent events demonstrate, the mother approached Police on a number of occasions when she either sought to force the father from the home and, without proper reason, to have him charged with breaching an AVO. For example, when she called Police to the home on 2 October 2010 to have the father removed. Another example occurred when she called Police to John Hunter Hospital on 27 February 2011 in relation to which the mother informed Police “for the duration of the pair’s son’s stay, the Victim stayed with her son for the full time, while the POI and his parents make regular visits. The Victim stated that the POI was there until unreasonable hours at night and on Sunday night she had enough and asked the POI to leave. The POI refused to leave because he wanted to stay with his son and this caused the Victim and the POI to argue”. In relation to this event Police record “Fears held by Victim: none detected by Police. Fears held by Police: nil. Victim has strong dislike of the POI but the Police did not detect any reasons to fear for the safety of her or [the child]”.
Having failed in her attempt to have the Police exclude the father from the family home, the mother took the child and stayed for four or five weeks with her parents. It is during this time that she successfully applied for Centrelink benefits.
Nevertheless, as planned, in late June 2010, the parties holidayed with the child in Bali. Whilst there, there is no dispute that the father threw a full nappy at the mother. The nappy hit the mother in the face which caused her nose to bleed and her lip to swell. However, according to the father, the mother failed to disclose that she threw the full nappy at him before he threw it back at her. Resolution of that issue, I have found quite difficult. By that I mean I am not able to determine who I should believe. Doing the best that I can, the evidence suggests that whatever took place reflected heightened tension between the parties and mutual poor impulse control. Because I am unable to determine how the event unfolded, it is ultimately of little significance to the disposition of the proceedings.
Once the parties returned to Australia they agreed to separate but continue, in the spirit of an amicable separation and in the child’s interests, to cohabit. The plan being that the mother and the child would live upstairs and the father downstairs.
Not long afterwards the father obtained work in Town M where he rented accommodation. Because of the nature of the father’s work his employers require that he not travel long distances between shifts and thus, during work periods, he lived nearby. When he was not at work the father returned to the family home where he spent time with the child. The mother is an avid record keeper and her evidence that between 27 June 2010 and 2 October 2010, the father spent 79 nights at the family home is accepted. So too is her evidence to the effect that the parties continued to argue about what might occur if they remained separated and her strong desire, which she communicated to the father, that he not constantly return to the home.
Although the mother was clear that the parties’ marriage was over, it is also clear that the father remained hopeful that they would reconcile and to this end, on 7 August 2010, he purchased what he described as the dream family home. The mother attended the auction with the child so that the father could see the child. She is unhappy that at the auction, the father put his arm around her and announced to those present, he bought the dream home for his family.
In any event, the difficult situation between the parties continued until 2 October 2010 when the father arrived at the family home to see the child. When the mother asked him to leave, he refused and told her he did not care if she called the Police. There was nothing done by the father to warrant Police intervention yet the mother called them to have the father removed from what she describes as “her home”. Police advised the father to leave which, appropriately, he did. He was also advised not to approach the mother. This had the unfortunate effect of making the father anxious about contact with the mother out of concern that circumstances might be manipulated so as to enable her to obtain an Apprehended Violence Order which would not, according to him, be warranted. As the events of Christmas Day 2010 inter alia demonstrate, his concerns were prescient.
With no requirement, however, that she does so, the mother offered the father the opportunity to spend time with the child for periods of about an hour on a number of occasions from then until 15 November 2010. The timeframe reflected the child’s young age who, it will be recalled, was not yet one. The father decided against coming into contact with the mother and so did not turn up. Thus on four or five occasions the mother took the child to the contact place nominated by her expecting to have the child spend time with the father. Although it is accepted that the father did not know how to deal with the situation he was in, his failure to tell the mother, even indirectly, that he would not spend time with the child is regrettable.
In the meantime, the parties obtained legal advice and contact between the child and father commenced on 15 November 2010. Essentially, arrangements were made for brief visits at a nearby McDonalds. The duration and location was nominated by the mother. She also insisted that the father not remove the child from the McDonalds playground. At changeover on the first and indeed subsequent occasions, the father refused to speak to her.
It is a heavy burden for any child to witness his parents persistently not speaking to each other and it is of great pleasure to hear that this scenario will no longer be one that the child faces in the future. In any event, on that occasion the father took the child from the mother without speaking. It was reasonable for the mother to perceive and, indeed, for the child the same; that this was an ungracious and difficult changeover.
It is not surprising that during the next one and a half hours that the child spent with the father (who he had not seen for about six weeks) the child became unsettled or that one and a half hours into the visit when he caught sight of the mother, he cried and wanted to return to her. It is to the father’s credit that he did not interfere with the child returning to the mother and gave her the space and opportunity to settle their distressed baby. The father left that visit early but, in my view, no criticism of him doing so is appropriate.
Further visits between the father and the child for periods of one to two and a half hours occurred on 27 and 28 November 2010. The 28 November 2010 being the first time the paternal grandparents had seen the child for about six months. There were then further visits on 13 and 18 December 2010, with the next occasion being Christmas Day 2010.
Considerable time was spent on what occurred on Christmas Day. It is my assessment that the best record of what actually occurred is to be found in the Police records as follows:
About 8 am on 25 December 2010, both parties had agreed to meet at the local McDonalds store for an access visit. There is currently no Family Law Court orders in place but the victim [the mother] has been advised by her lawyer to not let her ex-partner [the father] leave with the child. The POI [the father] entered the McDonalds store, walked up behind the victim and removed the child from the victim’s arm. He has then attempted to leave the store. The victim told the POI several times that he was not to leave the premises. A dispute over there being no court orders in place to prevent him leaving followed.
The victim has placed her hand up and said, “Stop. You are not leaving.” The victim has then placed her left hand on the POIs right arm as she attempted to take the child. The POI has said, “Don’t touch me and don’t touch [the child]. He is my son.” He then attempted to leave the premises again. The victim has placed her hand on the POIs arm as she tried to retrieve the child. The POI has grabbed the victim by the right forearm and twisted it, pushing upwards towards her head. This caused pain to the victim’s arm, as she has a previous injury to the arm from 2008. The POI walked back into the store, where he continued his visit with his son until 9.30 am. The POI returned the child to the victim before both parties left the scene.
The victim does not wish to take any action for the assault, but would like an AVO put in place because she fears future violence occurring. Police are of the opinion that the POI has assaulted the victim as direct act of self-defence. He has asked the victim to not touch him after she placed her hand on his arm as she tried to retrieve the child. The POI has then grabbed the victim’s arm to remove the victim from him, resulting in the assault. DVARS declined, as the victim is already being supported by mediation and the Domestic Violence Liaison Officer. Due to the volatile nature of custody disputes, police have applied for an apprehended violence order on behalf of the victim.
This is largely consistent with the evidence given by Ms W. Where there is a difference in the material contained in the police records and that given by Ms W, this emanates from Ms W not being able to see all that occurred. So that it is clear, I was impressed with Ms W and am satisfied she did her best to tell the truth.
The significance of Christmas Day 2010 seems to be that the mother’s attempts to stop the father leaving the restaurant with the child in the manner she did is inconsistent with her claim that she is afraid of him. In this instance, although I have no doubt she was motivated by her desire to be (overly) protective of the child, she was clearly the protagonist. The father’s response demonstrates that he is not afraid of the mother. Put simply there was no need for Police to be called.
Contact next took place on 17 January 2011 at McDonalds in Suburb R. This contact was unsupervised and appears to reflect an agreement the parties reached with their then mediator, Mr D. In relation to this contact, the mother, at paragraph 137 of her affidavit, said:
I took [the child] to McDonalds to see [the father] by myself. It was the first time I did not have my mother or a friend with me. I was not able to arrange for anyone to come with me. When I arrived, [the father] again had his huge friend with him. I felt intimidated again. After [the father] returned [the child] to me, he stood behind me in the car park and stared at me while I finished giving [the child] his bottle. He did not leave until I did.
The mother agreed in cross-examination that the father’s friend was someone well known to her, and a person whose home she had visited and had visited her home. There was nothing said or done by the friend which would cause the mother to reasonably feel intimidated.
On 20 January 2011, an interim AVO was made for the mother’s protection from the father, following on from her report to Police about the incident on Christmas Day 2010.
About two weeks later, the father commenced these proceedings.
In any event, on 22 February 2011, the child was hospitalised with asthma. It is now clear he is asthmatic, which is something that needs to be managed carefully by his parents. The mother properly informed the father about the child’s hospitalisation, following which the father attended the hospital to spend time with the child. Eventually, the mother herself wanted to settle down; she planned to stay in hospital along with the child. She was unable to persuade the father to leave and involved hospital staff in order to persuade him to go. I do agree with the mother that a slightly more sensitive response from the father would have been for him to leave (he had been there some hours), and let her and the child settle down for the night.
There is a recurrent theme in this case where each of the parties, in the difficult period post-separation, could have been nicer and more respectful towards each other. It is a triumph of hope over experience to consider that in difficult separations, people always behave as well as they would when the situation is less fraught.
The child was hospitalised again on 22 March 2011, and the father attended hospital, this time accompanied by his mother. It would seem that in the father’s absence, an argument developed between the mother and paternal grandmother and, again, the mother asked that he leave. I observe that in the fraught situation that these undoubtedly anxious parents were in, each could have handled the situation better. Again, I observe the father could have been more respectful towards the mother and her not unreasonable request that it was time for him to depart.
I was asked by counsel for the mother to draw what is known in the legal profession as a Jones & Dunkel (1959) 101 CLR 298 inference in relation to the father’s failure to call his mother to give evidence. I accept the father’s evidence that his was a deliberate decision to not ask his mother to give evidence, not for fear about what she might say, but for fear that she would put her own interests aside and give evidence in what he anticipated would be a very stressful hearing. She is elderly and has health difficulties. The Jones & Dunkel inference is not drawn.
Orders were made in the Federal Magistrates Court on 28 March 2011 which set the scene for the father to spend time with the child from 9.00 am to 12.30 pm, basically for three and a half hours twice each alternate weekend. Time in accordance with the orders commenced on 9 April 2011, and the father has spent time with the child in accordance with those orders. The varied orders of 24 June 2011 included simply changeover arrangements and for the first time, changeover on occasion at the Contact Centre R.
On 3 July 2011, the mother again went to Police. In relation to this, it is appropriate to record the material from the Police notes, which I am satisfied accurately reflect what occurred:
On Sunday, 3 July 2011, the mother collected her son from the family centre as per the arrangement at approximately 12.15 pm. The father remained at the location until after the mother and their child left the location. The mother was travelling home towards [Suburb C] when she has seen the father’s vehicle in her rear view mirror approaching her vehicle from behind, before turning right at the next intersection. The mother feels that the father has done this to intimidate her, as he is not required to go this way home. There has not been anything more done or said, however, the mother wishes for the incident to be listed in the case, that this is an ongoing occurrence leading to more angst.
The next matter of note occurred on 10 September 2011. Again, this is an occasion on which the mother approached Police. The Police records accurately reflect what transpired (both in terms of police involvement and the actual event) as follows:
About 4 pm on Friday, 9 September 2011, police have attended [the mother’s home] in relation to a domestic incident involving an alleged breach of an ADVO. At this location, police spoke to [the mother], who told police her ex-husband, [the father], has sent her text messages.
The two parties have interim family law orders where [the father] is allowed to contact [the mother] in regards to the health of their child. Under advisement from solicitor, [the mother] has sent [the father] to tell him that their child is not well and will not be going to him on the weekend. [The father] has returned a text inquiring about the child’s health. [The mother] has rang police at a station in Lake Macquarie with advice to send him another text to tell him to stop contacting her. Again, [the father] has sent a text still wanting the health status of the child.
As there is a family law court order in place, it negates the AVO. Also, the advice given to [the mother] from various sources to send him messages could be seen as incitement. The text messages [the father] sent were not threatening or intimidating in any way. He just wanted to know the health of his child. [The sergeant] was advised of the incident and as a result of a discussion there is insufficient evidence to prove a breach of AVO and to record the incident as breach AVO status, to rejected. No further police action required.

N was born in October 2011.
On 20 October 2011 the apprehended violence application earlier referred to was dismissed. The mother was informed that it was unnecessary for her to attend and in the absence of the ultimate complainant it would seem the application was withdrawn. As a consequence, there are no apprehended violence orders in operation.
On 21 December 2011, orders were made by Austin J for the preparation of a family report, and the arrangements for the child to spend time with the father were redefined. His Honour ordered that the child spend time with the father each Sunday from 10.00 am to 4.00 pm and each Wednesday from 4.00 pm to 6.00 pm. The father’s time with the child was to be supervised by the paternal grandmother.
The following day, the mother’s solicitor wrote to the father’s solicitor seeking to change the times for Christmas Day. In effect, to divide the time ordered by his Honour more or less into two periods. The essential point made by the mother is that she thought the child was too young to have the six hour continuous block out of her care.
With respect to the mother, this is a matter upon which minds can legitimately differ and in this regard no criticism is made of her decision to seek to secure the father’s agreement to a shorter period of time. The point being that her stance was not unreasonable, but in circumstances where the matter had just been the subject of orders, and with respect to his Honour, his Honour’s orders were not unreasonable.
A better approach would have been for the mother to accept the effect of his Honour’s orders without seeking, perhaps unintentionally, heightening the tension between the parties. In the event, the orders were implemented.
The next few occasions of changeover were difficult, and in the context of what has occurred since this matter was heard earlier, I will not go over old ground unnecessarily. No doubt both parties can look back at what occurred on 28 December 2011 and 8 January 2012 and reflect how each of them might have handled the situation better.
It is at about this time that the father commenced to telephone the child in accordance with Austin J’s orders. The child, at that stage, was just over two years old. It is self-evident that a two year old is unable to manage telephone conversations; even a telephone. The only way that his Honour’s orders could have been expected to achieve even a modicum of success is if the mother was actively involved in helping the child manage the telephone and speak to his father. It is her evidence that she was advised to give the child the telephone and leave the room. If the child was 12, that might be good advice. If it is the advice that she received, it was poor advice. However, there can be no doubt that a competent parent, as the mother is, could herself have worked out that even if that was the advice, it doomed the telephone contact to failure.
Telephone contact has been a failure, as indeed has his Honour’s order for the father to spend time with the child for two hours on Wednesday afternoons. The latter clashes with him being able to finish work, pick up his mother, change and make it to the mother’s home. In short, he was unable to spend a full two hours with his son. However, even if he could not manage a full two hours, a bit more effort could have been made to spend that time with the child. I am inclined to think that the reason the Wednesday afternoon two hour period has not taken place, by and large, is that the father was annoyed about the nature of the restrictions imposed on him.
The family report issued on 23 March 2012. The report is in evidence and I incorporate into my reasons paragraphs 61 to 66 of that report which set out the Family Consultant’s recommendations as follows:
61.It is recommended that the parents each have equal joint shared parental responsibility for [the child] unless the Court finds [the mother’s] concern are justified in which case some limitations to [the father’s] parental responsibility may be appropriate in specific limited defined circumstances.
62.It is recommended that all current requirements for supervision be removed. It is noted that [the father] enjoys a very close relationship with his parents and it is likely they will continue to spend significant amounts of time with their grandson while [the child] is in [the father’s] care. There does not appear, however, to be any current need or benefit to requiring the paternal grandmother to be present at all times that [the child] is spending time with his father.
63.It is recommended that changeover occur in such a way that will minimise the likelihood of [the child] being exposed to parental conflict or tension. Use of the contact centre may be appropriate but the limited opening hours may prove too restrictive to facilitate [the child’s] developing relationship with his father and extended paternal family. It is recommended that a more child focussed and appropriate community based venue for changeover be found. Facilities such as local libraries and art galleries as well as outdoor play areas are likely to be much better for [the child’s] long term well being than continuing to use multinational fast food outlets.
64.It is recommended that unless the Court finds it would be harmful for [the child] to do so, then [the child’s] time with his father gradually increase along developmentally appropriate lines so that [the child] is spending time with his father at least every week. It is further recommended that [the child’s] time with his father include overnight time with his father by his third birthday and that by his fourth birthday [the child] is regularly spending multiple overnights with his father. It is further recommended that [the child] commence spending periods of up to one week with his father once he commences school.
65.As [the father] is continuing with full time work and continuing to pay child support of approximately $1000 per month to [the mother], it is recommended that the time that [the child] spends with his father (at least until [the child] commences formal schooling)] be based around the father’s availability. It is noted that due to [the mother’s] current child care commitments with [N] and the nature of her own self employment, she is likely to have considerably more flexibility in her (future) paid work than [the father].
66.It is recommended that the parents attend the Unifam Keeping Contact program to assist them in improving their current very poor co-parenting relationship.
The orders I will make are consistent with the recommendations made by the Family Consultant. His evidence was tested with some vigour by counsel for the mother particularly in relation to the child’s attachment needs and the appropriateness or lack or appropriateness of commencing overnight time when the child turns three. In my view, the Family Consultant demonstrated a sound understanding of the salient facts in this case and impressed me as an efficacious witness. His evidence and his recommendations are given significant weight.

General law in relation to parenting applications

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Act. Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Section 61DA requires that when making a parenting order in relation to a child, “the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.” Essentially, the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2), the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles, which underlie those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.     The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
To the extent they are relevant to the particular case, the Court must consider thirteen additional considerations set out in s 60CC(3). Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).
If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (s 65DAA) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4).
Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests: Goode & Goode (2006) FLC 93-286.
By virtue of s 60CA, the Court will determine the weight to be given to the various factors, whether they be primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act. Ultimately, the weight attached to each factor is a matter of discretion.

Discussion in relation to the child’s best interests

The pivotal issues in this case are the nature and extent of family violence, the nature of the child’s relationship with the father and the father’s parenting capacity and the effect on the child’s relationships and development if overnight time starts in November this year rather than November next year.
So that it is clear, there is no doubt that the child has a lovely relationship with the mother and that she is his primary carer and attachment figure. Because of the child’s young age, some care is required about the duration of periods away from his primary attachment figure and to ensure that in building his relationship with the father, steps are not taken which undermine his healthy and necessary primary attachment to his mother.
Turning then back to the Family Consultant’s evidence and, in particular, the paragraphs which describe the child, and I incorporate into my reasons paragraphs 47 to 51 of the family report as follows:
47[The child] is aged two years and three months. He was observed to be developmentally within age expected parameters. [The child] was not assessed on his own due to his young age but he was observed separately with each of his parents. [The child] is reported to have asthma and a mild skin condition but there was no evidence of those conditions during the assessment.
48When [the child] was first observed he was very upset and being soothed by his mother. [The mother] explained that [the child] had become upset when his little backpack had been temporarily removed from him and put through the Court’s security x-ray machine a few minutes earlier. [The mother] was able to comfort [the child] and within a few more minutes he had settled completely and was happily playing. [The mother] was able to leave [the child] in the company of her friend, [Ms Y], and [N] and [the child] was observed to play happily. When [the mother] advised [the child] that [the father] would be coming in for a little play, [the child] did not seem to react at all and simply continued playing.
49When [the father] entered the child care room, [the child] immediately reacted very positively and ran to his father and led him back to where [the child] had previously been playing. [The mother] said a very brief goodbye and [the mother], Ms [Y] and [N] left (having already packed up in preparation for the changeover). [The child] largely ignored his mother’s departure and continued happily playing with his father. It is noted that there was absolutely no communication between the parents (or Ms [Y]) at all. [The child] was observed to play happily with his father for the next 20 minutes. [The father] had bought a bag with various items and had invited [the child] to choose an item but when [the child] showed no interest, [the father] appropriately rejoined [the child] in the activity [the child] was engaged in.
50When [the mother], Ms [Y] and [N] re-entered the child care room, [the father] continued playing with [the child] for approximately 10 seconds and then said goodbye and [the child] was happy to accept his father’s invitation of a farewell hug and kiss. [The father] then left. [The child] returned to the activity he was previously engaged in and after approximately 15 seconds [the mother] appropriately joined [the child] in that activity. Again it was noteworthy that there was absolutely no communication between the parents (or Ms [Y]).
51Apart from the first few minutes after his initial arrival, [the child] was observed to be very happy and relaxed in the company of each of his parents and Ms [Y] for the several hours that he was in the child care room. [The child] appeared to have no reaction on the two occasions that his parents were in the child care room at the same time although the Report Writer felt considerable ‘tension in the air’ at those times.
As already mentioned, the Family Consultant was cross-examined at some length about the attachment needs of a child this child’s age. The proposition put was essentially that between the ages of six months and four years, a child’s need to securely attach to a primary carer is paramount. That these, in essence, are pivotal years in forming healthy attachments both to a primary carer and with the comfort and security of a primary attachment figure to the rest of the world. In essence, the Family Consultant agreed with this proposition but he demurred slightly in relation to the importance of the primacy of the attachment need being developed with the primary carer as being between the age of six months and three years, and that whilst the years from three to four remain important, they are not as pivotal in the development of a primary attachment.
His point being, that if a child has the opportunity to develop a primary attachment before the age of three, which, as has been said, the child has, provided that primary attachment is nurtured and not unduly disrupted from that secure base, the child can begin to explore and develop other attachments. The Family Consultant’s evidence in relation to the child’s attachment needs and capacity to separate from his primary attachment figure is accepted and given considerable weight.
I will, in no particular order of priority, now address the various submissions that were made to me during the hearing and make my findings.
Firstly, it is not accepted that the mother is unwilling to support the child’s relationship with the father. In this regard, I agree with her counsel that it is significant that prior to orders being made she facilitated time between the father and the child. It is also significant that she has generally complied with orders for the father to spend time with the child, subject to my observations that more could have been done in relation to telephone contact. She has not withheld the child from time with the father for no good reason, and when ordered time has not occurred, this has been because she was reasonably satisfied the child was not well enough to be away from

Where an issue does arise, however, is in relation to her willingness and ability to accept and act in accordance with advice from others about how best to develop the child’s relationship with the father, as well as the importance of her behind the scenes role in actively reinforcing for the child the importance of his father. As to the latter, paragraph 56 of the Family Consultant’s report is particularly significant. There the Family Consultant said:
It is of considerable concern that [the mother] is equating the temperament and current behaviour of her five month old baby to the personality and behaviour of the child’s donor father (whom she has never met) and equating [the child] being ‘strong willed’ and ‘pushy’ with [the father’s] alleged aggression. [The mother] has raised concerns that unless the paternal grandmother is supervising [the child] when he spends time with [the father], the child and the father might ‘clash’ resulting in the child being at risk of harm. It is noted that the paternal grandmother is not a young woman and the father reports her health is poor.
I repeat my observations about more being done in relation to telephone contact.
Repeatedly, when the mother gave evidence, she referred to the child as “my child”. Although this may be an unintended use of a possessive word, it behoves her to remember that the child has two parents and that it is somewhat provocative to the other parent to be so obviously possessive.
Next, her dismay that, to date, the father may not always do as she asks in relation to the child and her expectation that as the child’s primary carer what she says goes. Again, a more inclusive approach would be useful. Of course, this must be tempered by the father’s surprising evidence that he chose not to respond to the mother’s remarks in the communication book, and in the month or so leading up to the final hearing he had not even read it. Observations were made by me during the hearing about that. The child is simply too young to communicate important matters about his wellbeing. This must be attended to by his parents.
The mother was quite entitled to expect that she would receive feedback in the communication book about what had occurred during the father’s time with the child, at least, in relation to diet and health and, for example, about whether the child had had a sleep. This is an enormously important stage of the child’s life and she needed information from the father as she had responsibility for making decisions, for example, about his routine and if he was out of sorts she was entitled to know why that might be. It is a matter of critical comment that with a son who is asthmatic the father stopped reading the communication book.
Now it is possible that he has, in fact, been reading it but gave different evidence. Self-evidently, for a child with health difficulties, particularly around breathing, it is of the utmost importance that the information about the child is communicated effectively between his parents both ways. If I thought the father was going to ignore the mother’s advice about the child’s health and failed to have regard to material, for example, in the communication book, I might approach this judgment differently, but I am confident that he will be more communicative in the future about information regarding the child’s care.
The mother was hyper vigilant and hypercritical about aspects of the father’s parenting capacity. It will be recalled that when these observations were made of the child, he was spending no longer than about three and a half hours in his father’s care. Her evidence that the child came back hot or overheated, that his nappy had not been changed and that he had had a sleep was not evidence that needed to trouble this Court.
An issue was raised about the mother’s attitude to the child’s paternal Italian heritage. I do not accept that the mother lacks respect for the child’s Italian heritage or seeks to deny him identification with that aspect of his genetics. Her opposition to the child being exposed to the Italian language, in my view, is misguided, but reflects a genuine belief that exposure to two languages might be confusing as his language is forming. Perhaps that is something she could discuss with someone with experience in children who grow up with more than one language. Her attitude that the father’s parents and their speaking Italian in her presence warrants critical comment is curious, but is not indicative of any lack of respect for them or the child’s Italian heritage.
I do not accept that the mother refused the father’s parents contact with the child from birth until Boxing Day 2009. There is in evidence photographs of the child clearly taken when he is newly born with them, also at home when he is a very little baby and at the local club. In this respect, the father’s evidence was unreliable and it may be that unfortunately he attempted to mislead the Court.
The mother has been, however, very critical about the father’s parenting capacity and it is important into the future that she seeks to balance her unhappy past experiences with a more considered view about his strengths and the good features that attracted him to her in the first place. Although, I am satisfied that the mother would not intentionally criticise the father to the child, the challenge that she faces is to not unintentionally expose him to her sometimes critical views.
I have not accepted that the father poses an unacceptable risk of abuse or family violence to the child, and I have already made passing reference to the matters that loomed large in the hearing and in the circumstances that have arisen since the matter was heard, I do not propose to go through these again.
There was evidence of unpleasant and belittling remarks made in the heat of marital discord and there was also evidence of remarks made by both parties with occasional racial overtones, but I pause to observe and to put this issue to rest once and for all. The mother married an Italian/Australian man. Self-evidently, her decision to do so show that she does not have an attitude toward the Italian race that would warrant criticism. The father married an Australian woman. Self-evidently, he does not have attitudes towards Anglo Australians which would warrant criticism. When the parties stand back and consider what each has done with the other they will realise that what they, in fact, have done is embrace multiculturalism and that should be the approach they take into the future.
There is no doubt that the child is a happy and well cared for little boy. The observations made by the Family Consultant show that he is relaxed in his father’s company. There is also a lot of evidence that in the early days, in particular, the child was distressed at changeover and unsettled when he returned to the mother. Also, that he is now happy and relaxed in his father’s company. This shows that there has been considerable effort put in by both parties to make the child as comfortable as possible with moving between his mother’s home and his father’s home. Undoubtedly more needs to be done by the father, in particular at changeover to make this an ongoing easy situation for the child.
It cannot be the case that the no speaking which has gone on continues to be the scene at changeover. However, I emphasise that I take real comfort from the observations made by the Family Consultant of the child’s easy interaction with his father. I am satisfied that due to the child’s young age and his primary reliance on his mother, this means that she is not undermining the child’s relationship with his father. The obvious point being if the mother had wanted to destroy the child’s relationship with the father, she has had the opportunity to do so and she has not taken it. I hope that that gives the father some comfort when he reflects upon what must have been the situation for the child in his mother’s care. I emphasise again, however, that the child is happy and relaxed in his father’s company, and I hope the mother can herself recognise that when the child is with his father, that his father is doing a good job. It sets the scene for a good future.
The Family Consultant spoke at some length about attachment. The gravamen of his evidence is that for a child in the child’s circumstance, and generally, by the time the child is three, that child should be spending time every week with the other parent, including one night overnight. The Family Consultant was clear to explain that it is beneficial to the child and the child’s parent to experience care and parenting in a range of settings, including overnight. In relation to routines, he explained that children of three do well with routines, but that the routines do not have to be identical. In relation to the latter point, the essential point that he was making is that within the context of a routine there is some scope for minor variations. Ultimately, according to the Family Consultant, longer periods of time and overnight time is about laying down a more solid foundation for a meaningful relationship for the child, in this case, with his father.
I accept the essential thrust of the Family Consultant’s evidence that it is in the child’s short term and, most particularly, his long term interests to make incremental increases to the time he spends with the father along the lines recommended (but not necessarily identical) with those recommended by the Family Consultant.
The other matters which, because of the manner in which the final hearing was conducted, must be briefly mentioned, relate to the father’s parenting capacity.
He is a first time parent and, along with all first time parents, there is a lot of learning on the job. The mother has been hyper vigilant about how the child has managed with the father, and has raised the concerns about diet, clothing and the lack of communication. She is particularly concerned and, in my view, reasonably so, about ensuring that information is communicated properly in relation to the child’s asthma. But, when one looks at how the child has fared with his father, the evidence does not suggest anything other than the child is being cared for appropriately. I do not propose to discuss the evidence about the child eating olives and matters of that type. The time for all of that is long gone. Suffice to say that as a first time parent with his parents in the wings, the father has satisfied me that he has the capacity to more than adequately take care of the child during the periods of time that he would wish to do so.
There is considerable overlap between ss 60CC(4) and (4)(a) with s 60CC(3). I have referred to the matters which I consider relevant under s 60CC(3) and there is nothing further, in my view, that needs to be said in relation to ss 60CC(4) and (4)(a). So that it is clear, the net effect of my findings is that I am strongly satisfied that it is in the child’s best interests that he lives primarily with his mother, and that his time with his father increases incrementally along the lines recommended by the Family Consultant.

Conclusion and the structure of the orders

The first question that must be addressed, again, only because of the way the case was conducted is whether the presumption of equal shared parental responsibility has been rebutted or does not apply. For reasons it is unnecessary to explore at this time, I am satisfied that the presumption has not been rebutted and that it applies. This means that the Court must then consider whether an equal time arrangement is appropriate. Neither party considers that it is in relation to which I agree. I must also consider whether substantial and significant time is appropriate. The father’s orders are more consistent with substantial and significant time than are those proposed by the mother, but, hers probably also meet that definition.
I found it very difficult to determine what should happen in relation to parental responsibility, but ultimately, notwithstanding the communication difficulties that have been evident to date, I formed the view that when one contemplates what both parties hope for the child and their keen desire that he has a happy childhood and benefits from everything that they have within their gift, they do not actually disagree about what the child’s future should be. The father agrees with the mother’s decisions in relation to schooling. The parties have disagreed in relation to how his time should be divided, but once my orders are made there is no scope for significant disagreement about that matter into the future. On balance, notwithstanding the communication difficulties, it is in the child’s best interests that the parties have equal shared parental responsibility for him. This will involve a degree of communication in relation to the really big decisions in child’s life; excluding matters in relation to school, which the father agrees should be the mother’s decision. If the parties find it too difficult to make decisions jointly they are well aware of community agencies which would enable them to have a discussion, assisted by others, about any high level decisions that need to be made about their son.
Because the mother has decided she will not retain the father’s surname an issue arose in relation to the child’s surname. It is to his credit that he was able to consider the position from her perspective, and does not cavil with her decision. At two, the child’s surname is of no significance to him. It follows that if his name is to change, a decision along those lines will not cause any confusion. Ultimately, it is not the child’s connection to the mother per se that has persuaded me that a hyphenated surname is the sensible course to adopt, it is his brother. N and the child will attend school together. The reality for these boys is that they are brothers who will grow up in the same home. They will be known in the community as brothers. I accept that brothers in this modern age can have different surnames and that the fact of doing so is unremarkable. However, it strengthens the boys’ connection to each other if, at least, part of their names are the same. It strengthens their connection if publicly, for example, at school assembly or on a sports ground their names are called out one after the after. It is not a necessary result of a hyphenated surname that the father’s surname will disappear from the child’s name. The effect of my orders will mean that that cannot happen. On balance, I am persuaded that it is in the child’s interests that his surname is hyphenated and that the name Stacey is the first name in his hyphenated surname.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 30 May 2012

Associate: S Mills

Date: 30 May 2012

[2012] FamCA 738

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Consent

Procedural Fairness