Montague and Alder

FAMILY COURT OF AUSTRALIA

MONTAGUE & ALDER

[2009] FamCA 456

FAMILY LAW – CHILDREN – With whom a child spends time – progressive introduction of time

Family Law Act 1975 (Cth)

APPLICANT:

Mr Montague

RESPONDENT:

Ms Alder

FILE NUMBER:

PAC

5496

2007

DATE DELIVERED:

29 May 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

14 May, 9 September 2008, 15 & 30 January, 4 & 5 February, 4 & 20 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg

COUNSEL FOR THE RESPONDENT:

Ms Hausman

SOLICITOR FOR THE RESPONDENT:

Craddock Murray Neumann

Orders

All previous parenting orders are discharged.
The parents are to have equal shared parental responsibility for the care of their son … born … April 2007 (“the child”).
The child is to live with his mother at all times not living with his father as specified in these orders.
Notwithstanding any other order, the child is to spend Mother’s Day with his mother and Father’s Day with his father and to that end if the child is scheduled to be in the care of his father on Mother’s Day he is to be returned by the father to the mother no later than 10am on that day and if the child is not scheduled to be in the care of his father on Father’s Day he is to be delivered to the father by the mother not later than 10am on that day.
To the extent it has not been complied with to date, the parents are to do all things and sign all documents necessary to amend the records held by the Registry of Births Deaths and Marriages so as to correctly record the father as the father of the child … born … April 2007 and to record his surname as “Alder-Montague”.
The mother is restrained from using any surname other than “Alder-Montague”.
Both parties are at liberty to attend all school functions to which all parents are invited to attend and any extra-curricula activities the child undertakes.
Both parents are restrained from making any derogatory comments about the other or member of their family in the presence or hearing of the child.
Each parent is to
(a)permit the child to communicate with his other parent by telephone at all reasonable times when the other parent calls;
(b)ensure they have a telephone landline and mobile telephone available and operational for the purpose of communication;
(c)keep the other informed of the telephone numbers;
(d)keep the other informed of any change to their residential address immediately upon the change becoming known;
(e)notify the other forthwith of any serious illness or injury suffered by the child while in the care of that parent;
(f)advise the other forthwith of any medical treatment sought for the child and advise the contact details of the treating medical treating practitioner together with treatment prescribed;
(g)advise the other in writing of any proposed interstate travel with the child to include travel details, accommodation and telephone contact details;
(h)use their best endeavours to ensure the child is not exposed to cigarette smoke in a confined area.
The parents are to maintain a communication book to record information about the child to be passed to the other parent.
The mother is restrained from relocating the place of residence of the child outside of the Sydney metropolitan area or any further distance than she now lives from the father’s residence without the written consent of the father or further order of the Court.
Subject to orders 4, 13, 14 and 15, the child is to live with his father as follows:
(a)from the date of the orders until 1 July 2009 each Sunday from 10am until 2pm
(b)from 1 July 2009 until 1 August 2009 each Sunday from 10am until 3pm
(c)from 1 August 2009 until 1 April 2010 each Sunday from 10am until 5pm
(d)from 1 April 2010 until 1 October 2010 in two weekly cycles:
(i)       in week 1, from Saturday 10am until Sunday 10am
(ii)      in week 2, from Sunday 10am until 1pm
(e)from 1 October 2010 until 1 April 2011 in two weekly cycles:
(i)       in week 1, from Saturday 10am until Sunday 12 noon
(ii)      in week 2, from Sunday 10am until 1pm
(f)from 1 April 2011 until 1 April 2012 each alternate weekend from Saturday 10am until Sunday 5pm
(g)from 1 April 2012 until 1 April 2013 each alternate weekend as soon as practicable after school Friday until 5pm Sunday
(h)from 1 April 2013 each alternate weekend as soon as practicable after school Friday until 5pm Sunday provided that if the father is living not more than half an hour’s driving from the school he attends then until before school Mondays or Tuesdays if Monday is a public holiday.
From the end of term 1 in 2011 the times referred to in order 12 are suspended during the school holidays falling after terms 1, 2 and 3 and during those school holidays the child is to live with his father at the following times:
(a)in 2011 for three consecutive nights during the first week of the holidays;
(b)in 2012 for four consecutive nights during the first week of the holidays;
(c)in 2013 for half of the holidays to be agreed and failing agreement to be for the first half in even numbered years and the second half in odd numbered years.
From the end of term 4 in 2011 the times referred to in order 12 are suspended the child is to live with his father at the following times:
(a)in December 2011/January 2012 for three consecutive nights during weeks 1, 3 and 5
(b)in December 2012/January 2013 for four consecutive nights during weeks 1, 3 and 5
(c)in 2013 for half of the holidays as agreed and failing agreement to be for the first half in even numbered years and the second half in odd numbered years.
Pending the December/January school holidays being shared equally as from December 2013 according to order 14 (c) hereof, the child is to be with his father during the Christmas period as follows:
(a)      Christmas 2009 on Christmas Eve from 9am to 5pm
(b)      Christmas 2010 from 5pm Christmas Eve to 5pm Christmas Day
(c)      Christmas 2011 on Christmas Eve from 9am to 5pm
(d)      Christmas 2012 from 5pm Christmas Eve to 5pm Christmas Day.
Unless otherwise agreed, these orders are to be implemented by the father or his nominee collecting the child from the mother’s residence or other agreed venue at the commencement of any designated time and the mother or her nominee collecting him from his father’s residence or other agreed venue at the end of any designated time.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5496 of 2007

MR MONTAGUE

Applicant

And

MS ALDER

Respondent

REASONS FOR JUDGMENT

Proceedings

This decision is about the future care arrangements for the parties’ son, who is now aged 2 having been born in April 2007.

Proposals

The orders ultimately sought are to be found not in their formal application and response but in exhibits 4 [the father] and 5 [the mother]. At the close of the evidence counsel advised there had been agreement about a number of proposals, including provision for equal shared parental responsibility, and agreement about others if some relatively minor amendment was made or some condition was to attach to it. Most of what was agreed or provisionally agreed regulates behaviour that should hardly need Court orders since they are matters of plain parental responsibility - take the obligation to advise the other of serious illness or injury or change in residential address, for example. In any event, despite harbouring some concern about these sorts of provisions doing little more than laying fertile ground for future dispute, I have adopted the substance of what is said to be agreed and made some cosmetic changes and re-arrangement and have adopted what I regard as warranted in the provisionally agreed areas. As there is little in any of the evidence bearing on the latter and no airing of any real dispute about them, nothing more needs to be said.
There is a proposal the parents attend a parenting after separation course which was not agreed and has not been taken up in the orders. That is not to discourage either from doing the course; it is more that I can find nothing to support the view that the imposition of the obligation by order without it being voluntary is likely to deliver any benefit.
There is also a proposal from the father that the registration of the child’s birth be corrected to record him as the father and the child’s surname be recorded as “Alder-Montague”. When the hearing resumed part heard that was said by counsel to have been done, but it is taken up in the orders lest some shortcoming arose in seeing the task through to completion. He also seeks to have the mother restrained from using any other surname for the child but “Alder-Montague”. That is not the subject of agreement but an order will be made nonetheless because there is no sound reason, certainly none offered by the mother, for the child to be known by any name other than the name reflected on his birth certificate.
There was an on/off question of whether the mother should be permitted to relocate to Queensland, but that was resolved by her withdrawing that application in the course of the hearing. That was a sensible concession because the whole of the evidence supported that result if an order had been required. While there is no agreement about the father’s proposal that restraint be imposed on her relocating, the equivocation has been such that her proposal not to do so is taken up in the orders.
The issues which remain in contest can be summarised:
(i)The father proposes the child live with him for progressive periods:
·    4 weeks each Sunday from 10am to 1pm at M
·    4 weeks each Sunday 10am to 2pm
·    8 weeks
oweek 1 Saturday and Sunday from 10 am to 5pm each day and
oweek 2 Sunday from 10 am to 5pm
·    12 months each alternate weekend from 10am Saturday to 6pm Sunday extending to 6pm Monday on long weekends
·    thereafter from 5pm Friday to 6pm Sunday or 6 pm Monday
·    for special occasions such as Father’s Day and Christmas
·    when he is 3 years of age for 7 days in the mid year school holidays and two periods of 7 days during the longer Christmas holidays
·    when he is 5 years of age for half of the school holidays to alternate between first and second half each year.
(ii)The mother’s proposal about time with the father is this:
·    3 months from 10am to 1pm, changeover to be at the M Shopping Centre
·    3 months on Sundays from 10am to 3pm, changeover at the Shopping Centre
·    18 months on Sundays from 9am to 5pm, changeover at the Shopping Centre
·    12 months each alternate weekend from 3pm Saturday to 12 noon Sunday
·    12 months each alternate weekend from 12 noon Saturday to 3pm Sunday
·    thereafter, each alternate weekend from 9am Saturday to 5pm Sunday
·    from that same point each mid-term school holiday period for 5 consecutive days and during the Christmas school holidays for 3 one week periods and after 12 months for half of each school holiday period to alternate between the first and second half if not agreed otherwise
·    special occasions such as Father’s Day
·    unless otherwise specified the father personally collect the child from the mother at her residence at the beginning of the designated periods and the mother collect the child from his residence at the end of those periods
·    the suspension of the father’s time when the child is suffering significant illness to be supported by a medical certificate
With no dispute about the broad parameters, the decision boils down to their differences about the progressive rate of increase in their son’s time with his father and the last two issues.

Law

In making the decisions required the best interests of the child are the paramount consideration [s 60CA]. That is a process guided by stated objects and underlying principles. The former are about ensuring children’s best interests are met by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s 60B(1)]. The latter, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s 60B(2)].
The factors which determine best interests are ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) and (3)]. There are two ‘primary considerations’ which reflect to an extent the objects and there are a number of ‘additional considerations’ which are wide ranging and in some instances their meaning elaborated in other sub-sections [s 60CC(3)(4)]. They will be evaluated after the more central aspects of the history has been recorded.
That notwithstanding, the Act imposes a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)] and while that is about decision making, not time, it has time implications. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the best interests of the child [s 61DA(4)]. If it does apply, the obligation is not to order it but to ‘consider’ first whether it would be in the child’s best interests and ‘reasonably practicable’ to spend equal time with each parent and, if not, whether it would be in the child’s best interests and ‘reasonably practicable’ for the child to spend ‘substantial and significant’ time with each parent [s 65DAA(1) (2)]. This last mentioned outcome requires that the child spend days that fall on weekends and holidays and those that do not, it allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, and it allows the child to be involved in occasions and events of special significance to the parent [s65DAA(3)]. What is ‘reasonably practicable’ requires consideration of the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)].

Evidence

Apart from the tender of documents and the evidence of the parents, there is evidence from a number of witnesses although only the mother’s mother, the maternal grandmother, was required for cross-examination. Her other witnesses are her cousins Ms H and Ms S. In the father’s case there is evidence from his parents, the paternal grandparents, and several friends – Ms P, Ms T and Ms V.
That canvasses in considerable detail the history from before the parties’ separation, its aftermath and later which gives historical context and an indication of the dynamics of the parents’ relationship and their personalities and their attitudes to parenting and life generally. But the ambit of the case means that few findings about disputed facts are necessary. To that extent it will be done but beyond that it is unlikely to be helpful to future cooperation over the many years of co-parenting ahead.
There is evidence from two experts. Ms K, a Family Consultant who had several interventions with the parents in April 2008, produced a report of her involvement. She was not required to attend the hearing. The court appointed expert, Dr M, child and family psychiatrist, produced two reports - 4 August 2008 and 30 December 2008 – and she gave further evidence at the hearing.
The process Dr M undertook appears to have been relatively comprehensive. She reviewed a considerable body of material, she interviewed all relevant persons – including the father’s daughter for her second report – and she observed the child and significant others. However, a reading of her first report demonstrated she had assumed disputed facts in some areas of evaluation by proceeding from the footing that what was relayed by the mother was true. Take for example these passages in her opinion about attitudes to the responsibilities of parenthood on page 15:
‘The father effectively threw the mother and child out of his home, which suggests some deficits in his attitude to the responsibilities of parenting, a callous disregard for the woman who recently bore his child.
It is frequent practice for the father to register the birth name, but he left it up to the mother then became annoyed that she did not adhere to the name they had agreed to some time earlier.’
Obviously facts not proved to support opinion undermine its value. Nonetheless later in the process Dr M moved on and her opinions became more contingent and more directed to her area of expertise. In the result, while her evidence remains important, some caution is required when considering her earlier views and in deciding what can reliably be taken from her first report before she had the opportunity to interview the father and his daughter, which led to her becoming more open to another version of the shared history and re-appraising the issues.

Background

The father (44) lives in his own home at G. He is a building supervisor. His hours are from early morning to 3pm week days and he works sometimes on Saturdays to midday or later. An only child, he told Dr M of having a good relationship with his divorced parents who were always involved in his interests. He married at the age of 27 and from that relationship he has a daughter, now aged 13. They separated for a time when she was younger and their final separation occurred when she was nearly 6 years of age. He has maintained a close involvement in his daughter’s life and upbringing and there appears to be a line of communication between him and her mother. The arrangements have developed a degree of flexibility over time. The daughter spends regular time in his care and he is involved on those occasions in getting her to and from school and attending extra-curricula activities, at times with assistance from his mother. Dr M did not conclude any impairment from her assessment of his mental state or history.
The mother (38) comes from an Italian background. To Dr M she related a good family life. Her education led to secretarial work. The position she last held became redundant last year. She lives with her mother, her surviving parent, at C. She has a brother who lives in Queensland and other extended family who live there. Dr M did not detect any psychotic phenomena or organic impairment and there was nothing about the mother’s presentation to suggest any significant personality pathology. She did assess her as anxious and overwrought and the context of that will be discussed in due course.
The parents met in November 2004 and they began living together in late December 2005. Their son was born in April 2007. They separated a few months later in early July.

The history leading up to and surrounding their separation and many of the events to follow are the subject of dispute and they were aired not only in the affidavits but in discussions with Dr M. It will be summarised in what follows. Since their separation the child has lived with his mother. His contact with his father was interrupted for some months when the mother’s whereabouts were unknown and since then it has been for limited time in a restrictive setting.

History

From the time their relationship began from all accounts the mother had an interested and active involvement with the father’s daughter and that continued after the mother joined the father’s household until some stage during the pregnancy in the following year when it foundered. The father says she took to ignoring his daughter and it is accepted she did reject their former association without apparent or sound reason.
It is obvious there were difficulties with the parents’ relationship before the pregnancy, which was unplanned, and plainly there was no improvement after that development. Their separate views about the pregnancy and related matters are given considerable space in their evidence. Essentially it is the mother’s case that the father did not welcome the development, he told her to ‘get rid of it’, he did not want it ‘interfering with my life or my relationship with my daughter’, and he was unsupportive of her throughout the pregnancy in a number of ways; for example, he refused to contribute to private health insurance, he did not pay for medical expenses, and he did not attend medical appointments. All this is denied by the father. On his account of it he told her he did not think it was a good idea to bring a child into a deteriorating relationship. He maintains she constantly accused him of continuing previous relationships [she says he accused her of having affairs] and he replicated a host of text messages from her over some months from August 2006 as an indication of the state of things at the time. He says that from the outset of the pregnancy she raised potential future problems such as the father’s daughter becoming jealous. Abortion was not his suggestion – she attributed that view to him - and she was the one who made an appointment for a termination which she later cancelled. He says he investigated health insurance and suggested he and his daughter join the fund offered by her employer but he got no answer, he agrees he did not pay for medical expenses but he did pay for baby equipment and he decorated two rooms, and he attended all prenatal classes, hospital inspection, ultrasounds and some doctors and specialist appointments.
It is difficult to find any enduring relevance in any of it. If the allegations were traded to suggest the other was equivocal about having a child that has long been overcome by the obvious commitment they each have to their role as a parent. If the mother raised abortion and the father’s supposed disinterest in having a child to justify unilateral decisions she took about the child’s name and birth registration and to depart unannounced for Queensland, she did not succeed in that endeavour.
It will suffice to capture the more central events around the birth and its aftermath brought further difficulties:
(i)The father was present for the birth. The mother did not permit the paternal grandmother or the father’s daughter to see the baby when they came to the hospital the following day, nor the paternal grandfather later. The mother says she was not up to visitors, she was tired and unwell.
(ii)The mother alleges the father was unresponsive to her calls while in hospital and that he told her not to bring ‘it’ [the baby] back to his house, he did not want anything to do with ‘it’ or her and to go to her mother’s. He denies it. He said he was concerned that something was wrong and he spoke to the obstetrician who was to arrange for the hospital psychologist to see her. He agrees they did have an argument at the time and he told her he would take her to her mother’s place.
(iii)She did return to his home on discharge from hospital on 18 April. Her mother moved in for a number of weeks to help out – for reasons they differ about.
(iv)A week or so later the mother was readmitted to hospital and the baby accompanied her. But the father took him home despite the mother’s protests and returned him to the hospital the next day. He explains he wanted to take the baby out of the emergency ward and when the mother had a private room he returned him. The maternal grandmother says he had no idea what he was doing and she suggested the smartest thing he could do would be to return him to his mother.
(v)On her discharge from hospital some days later she returned to the father’s home. She alleges he was unsupportive, impatient about the baby’s needs, and he refused to put the baby on his Medicare card. He disagrees. He says he paid all the bills, bought groceries and the baby’s needs and he disputes her version of what happened about the Medicare card. He says she restricted his access to the baby and she did not go to a family gathering because she thought someone might touch the baby.
(vi)He agrees he told her to go to her mother’s house. She was becoming more possessive of the baby and deliberately keeping him away from the child. When his grandmother visited she would not allow her to see the baby and his parents have the same complaint. But the mother says her departure from the home before his parents’ arrival was because she had another commitment. It was on her return to the house later that the father told her he could not live a life where his family was excluded from their lives.
(vii)Around this time the mother went to stay at her mother’s to look after pets while she was in hospital for an operation. During this time there were a series of text messages from the mother to which he was completely unresponsive, which he denies, with problems in the relationship and the future being the general topic. In early July he told her not to come back but to come and get her things. He proposed coming with his daughter on 6 July to see the baby and take him out. The mother refused unless she accompanied them and the tenor of things at the time is reflected in her text message: ‘u kick me out, don’t bother to contact me, then u call and expect to take him away without me all because it suits u & [the daughter].’ He told her the relationship was over.
(viii)On 7 July she collected her belongings from his home and she returned on 15 July for the remainder of her belongings using her key. He took exception to this and sent an indignant text about it followed up by a notice of demand issued out of the Local Court for her to return the keys.
(ix)The mother says he made no contact with her from then – which turned out not to be so - and she assumed he did not want to see her or the child – which was unfounded.
The father says that after the birth he had sent text messages to his friends and family using the name N – it had been agreed the name would be N Alder-Montague - and he produced in evidence a photograph of the baby taken shortly after birth with the name N across the bottom. On 12 and 14 July he sent a text message to the mother asking after ‘N’ and similar text messages were sent on 15, 18 and 22 July. There can be no dispute about that. On 26 July he received two text messages from the mother telling him she loved him and missed him. She says she was upset about the end of the relationship and sent a number of text message to him, none of which he replied to and nor did he call her. But the father says he did try to call her; her mobile telephone was disconnected and he was unable to reach her. She says she lost it and obtained a new number.
At some point the mother registered the baby’s birth and the name she registered was J Alder. The father was not mentioned in the registration. Her explanation is that there was no agreement about a name, she formed the view he did not want to be involved with the baby or her, he had taken no steps to register the birth so she did, and he did not want to be on the birth certificate. The father became aware of the details of the baby’s birth registration when he and his mother tried to open a bank account for him.
In the meantime the father had his solicitors write to her requesting DNA parentage testing and if he was found to be the biological father then the birth certificate was to be changed accordingly, attendance at mediation was proposed, and he sought to have the baby in his care for alternate weekends and half the school holidays – a plainly absurd proposal at the time. A follow up letter was sent when no response was received. The paternal grandfather had also written to the mother seeking information about the baby to follow up an earlier one that had received no response. In it he asked if he was dealing with a ‘schizophrenic or a person with a dark past or bipolar disease like the black dog syndrome.’ But the mother did not receive any of this correspondence until later. In early August 2007 she had moved to Queensland with the child unannounced and had not relayed either that fact or her whereabouts to the father.
The upshot was an application by the father filed 3 October 2007 seeking parenting orders and a location order which issued on 22 October to ascertain the mother’s whereabouts. That came to light and on 22 January 2008 an order was made requiring the mother to relocate back to Sydney. She did so the next month and she and the child returned to live with her mother at C.
It was agreed initially the father would have some limited supervised time with the child which became the subject of correspondence exchanged between solicitors; the mother was asserting conditions such as it occurring at her mother’s home and the father attending alone. The first scheduled occasion saw text messages back and forth disputing what had been agreed about the venue – her mother’s place or a café – and both held to their positions throughout. There was further correspondence between solicitors about venue and whether the father’s parents could be present until a text message from the father directly to the mother resulted in her agreeing to meet at a café at a certain time. But on the day she declared the weather unsuited to that venue and by text message proposed the visit occur at her mother’s home. The father agreed to that but he replied to say he would be accompanied by his father. She said his father was not welcome ‘due to the defamatory letter he wrote’ and so the father refused to attend. Things continued in this vein.
On 18 March an interim hearing was scheduled but that had to be adjourned as the mother was said to be too upset to instruct her solicitors. On 1 April the father was able to spend some time with his son in the mediation precincts of the Court premises but otherwise the impasse about venue and the father’s desire to not attend alone but to be accompanied continued. There was an order for mediation by a Family Consultant and Dr M was appointed an expert to report.
The Family Consultant, Ms K, produced a short report on 24 April of her involvement over three sessions earlier in the month. In that she observed the child to be attached to his mother but to enjoy and recognise the father. She noted the father to be child focussed and struggling to find a way to re-establish his relationship with the child; the mother presented as extremely distressed and not wanting to explore the possibility of the child spending time with his father at a Contact Centre and nor did she want to explore any of her history. On the second occasion they were seen the mother presented as highly anxious and made no attempt to assist the child interact with her. Brought ultimately into contact with his father, the child had some level of recognition and the father’s interactions with him were appropriate. The child did not express any distress or uncertainty in his father’s presence, he remained close to his father, he did not look around for his mother and he happily interacted with his father. Ms K recommended that the child continue to spend time with his father to build their relationship while awaiting Dr M’s report and she suggested the most appropriate venue would be a Contact Centre.
The father had contact for half an hour in the presence of the maternal grandmother but in the mother’s absence on 4 May. This limited time in those circumstances continued until 10 June when consent orders were made providing for contact each Sunday initially from 9.30am for one hour at the children’s playground at the M Shopping Centre in the presence of the maternal grandmother with none of the father’s family to be present.
In early August Dr M’s first report was released. Putting aside the preamble, her conclusions on the issues she had been asked to address can be summarised:
·    whether the child is at risk of being exposed to any physical or psychological harm from being subjected to abuse, neglect or family violence
(i)       She observed the chil’ds development to be progressing normally. She continued:
‘[the mother], rejected by [the father], is keen to secure a family relationship in which to raise the child. She is reacting to his neglect of her and [the child] and his ongoing disregard for them. She is seeking to limit their contact and indeed have some control over it. She erred in taking [the child] to Queensland without the father's consent but at the time she appeared to be considering [the child’s] needs rather than the father's needs.
I remain concerned that [the father’s] daughter, […], at 13, was allowed to chose whether or not she would come to the assessment, particularly when her relationship with her father, the father's parenting of her and [the child’s] reaction to her are significant factors in coming to conclusions in this matter.
Issues of domestic violence between the parents seem to be inferred by the mother but this has not been a frequent occurrence during the course of their relationship. Although the mother is concerned about the sexualised way [the father’s daughter] relates with her father, there are no direct allegations of sexual abuse.
The father has been treated for depression but he is no longer taking medication. The mother mistrusts the father due to his behaviour towards her.
·    whether any party suffers from any mental health condition
(ii)      She saw no evidence of the father suffering depression as he had previously. She observed that the issues raised could have been better dealt with had the father’s daughter attended. She did not assess the mother as suffering from any specific mental health condition but she thought she was ‘extremely anxious and overwrought’ and fearful of danger to the child if he were to spend time with his father in his home.
·    the capacity of each of the parties to provide for the emotional and physical needs of the child.
(iii)     She assessed the father as able to provide for the child’s physical needs but she noted there to be concerns about whom he would call on to care for the child in his absence. She had been unable to comment on his parenting capacity by interviewing his daughter or assessing their relationship. She assessed the mother as well able to provide for the child’s emotional needs, she had attempted to facilitate a relationship between him and his father and extended family, and she could better provide for his physical needs if her income were higher.
·    the nature of the relationship of the child with either of the parents and any other significant person.
(iv)     She assessed the child as having a secure attachment to his mother and relating well to his maternal grandmother. He showed no clear attachment to his father which was understandable given his young age and the limited time spent together. He had no established relationship with his paternal grandmother since there had been no contact, though the grandmother was noted to be keen to change this and she obviously understood how to communicate with a child.
·    the practical difficulties of the father spending time with the child.
(viii)This was seen as depending on the mother’s location.
·    the mother's ability to facilitate the father spending time with the child
(ix)     Dr M says [erroneously as I find] that historically the mother was keen to facilitate the father's relationship with the child but her anxiety about the circumstances in which this may occur may make this difficult – the layout of his house, worries about his daughter and elderly grandmother caring for him. She noted it to be the mother’s ‘…clear preference that [the child] spends time with his father in an environment where she has some control of it.’
·    the parties attitude to the responsibilities of parenthood
(x)      Dr M assessed the mother as having strong, well developed attitudes to the responsibilities of parenting and being aware of her duty to keep the child safe and also to allow him to form a relationship with his father [again erroneously as I find]. She assessed the father as appearing to have a ‘somewhat permissive attitude towards the parenting of his older child’ but she had not been able to take this further. Other observations assumed facts not open to her.
·    the effect if any upon the mother of an order that the father spend time either supervised or unsupervised with the child
(xii)     Dr M thought the mother could accept an order for supervision but she would be extremely anxious about no supervision since she did not believe the father to have a child friendly home or that the child would be adequately supervised when the father leaves for work.
·    the impact upon the child and parties of the mother's application to relocate to Brisbane
(xiii)Dr M by her remarks supported at the time the mother relocating as she proposed.
·    any other matter relevant to the parties or the child
(xiv)Dr M continued her discussion of the relocation proposal which she supported and added that she would not have made the recommendation for relocation if ‘[the child] were older and/or had an established relationship with the father, or if the mother had not been so anxious about [the child’s] contact with the father’. She assessed the mother’s fears as genuine and based largely on her experiences of the father.
There is no point speculating now why she would not have supported relocation if there had been an established relationship between the child and his father when the relocation being supported would make achieving that goal difficult at the very least. In any event the release of the report was followed by the exchange of correspondence raising issues about circumstances related to the supervised contact at the Shopping Centre. The father through his solicitors protested at the mother attending and overlooking the play area where he spent time with the child, about the maternal grandmother taking photographs of him with the child, and he sought to have the time increased. In her response the mother says she is not always watching but if she is she does so from the floor above the area where the child cannot see her and, besides, the father’s relatives attended on occasion and watch the father and the child below and they had also taken photographs. The maternal grandmother denied interfering - the father later alleged she recorded him with the child using a dictaphone.
Against that background the matter was set for hearing in February and a direction made for Dr M to be provided with further material not earlier available and requesting that she prepare an addendum to her report by not assuming the facts she apparently had. Further, the father was to be at liberty to take his daughter for interview by Dr M and she was directed to include her evaluation of that in the addendum. He did so and her second report issued on 30 December 2008. A summary follows:
(i)       Dr M set out in some detail her discussion with the father’s daughter and the father and the interactions she observed between them. In short, she considered the father’s daughter presented as her stated age and she was the ‘kind of girl that most children would like to have as a sister’. She appeared able to hold a rational conversation, she provided rational, conscientious reasons for being present, and she seemed to be well adjusted. She does not always comply with her father's wishes if they do not suit her. There was no evidence at all of a sexualised relationship between them. It was obvious she was not afraid of her father with whom she shared a ‘comfortable, relaxed relationship’. Dr M recorded her impression of an -
‘…intelligent girl who lives most of her time with her mother but who enjoys regular consistent time with her father. She has an easy going relationship with him and can talk to him about anything. She is aware he can be a bit of a disciplinarian when this is required. There is no history at all of abuse.’
(ii)      The father’s daughter discussed the change in the mother’s attitude towards her after the subject child was born and her desire to know her brother:
‘[The father’ daughter] told me that it is her right to get to know her brother. She has been able to see him from above during her father's visits and has longed to go down and join in their play.’ The father’s daughter told Dr M: ‘it does not have to be a competition between us (meaning [the child] and herself) for Dad’s attention.’
(iv)     Dr M revised her earlier opinions:
·    whether the child is at risk of being exposed to any physical or psychological harm from being subjected to abuse, neglect or family violence
(v)She saw no sign of the child suffering any kind of abuse. He is developing normally. She noted the mother to be keen to find a secure family situation in which to raise him since her rejection by the father and there is evidence her own needs would be met by a move to Queensland. There is also evidence she is reacting to the rejection and neglect of herself through the child. Having had the benefit of the further interviews, she was able to assess the father’s daughter’s relationship with her father and his parenting. For the child and his father to see each other regularly the mother would have to live for most of the time in Sydney where she had limited job options and less opportunity of child support when at work.
·    the capacity of the parties to provide for the needs of the child
(vi)     The father could provide for the child’s physical needs and also for his emotional needs. She observed he has provided significantly for the emotional needs of his daughter and been well tested as a parent and not found wanting.
·    the father's attitude to parenthood in the light of interviewing him with his daughter
(vii)     The father’s daughter herself is developing well emotionally - she is a balanced, well- developed, and comfortable 13 year-old who has had the strong presence of her father throughout her life. He has an even and determined attitude towards parenting his children and is protective of this. His wish to secure a good, reliable ongoing relationship with his son is as intense as his wish to do so with his daughter which has been successful.
·    any other matters relevant to the parties
(viii)    The father has evidence of caring for the children of friends which supports his ability to care for the child. Dr M thought it might be worthwhile for the situation to be reviewed in a couple of years by her or another child psychiatrist to assess how the child is coping emotionally.

Dr M was taken to her reports and other matters in cross-examination. She did not there depart from her opinion about the father’s ability but she expressed quite different views to earlier assessments of the mother’s attitude to parenting. Without being exhaustive, these are some of the points made in the course of her evidence:
(i)       She agrees the mother has fears about the father that are not necessarily based in fact; for example, that the father and his daughter interact inappropriately. Nonetheless, Dr M thinks the mother actually believes that time with the father will not be good for the child and she is genuinely frightened. That is not to say the mother is suffering from a psychological disorder or psychiatric impairment but rather that she is ‘fragile’. She believes her to be genuinely anxious even though she had given Dr M an inaccurate account of the history.
(ii)      Dr M did change her opinion about the mother having a well developed attitude to parenting in light of the history about the time she had seen fit to allow the father and the child spend together. She now sees quite a lot of problems in the mother’s attitude, not so much related to her own parenting but in terms of allowing others to have contact with the child. She agrees this is a real deficit in the parenting provided so far and she also agrees it would be a real deficit to the child moving forward if she does not change her attitude or orders are not made to expand the time he spends with his father and others.
(iii)     Dr M also agrees it shows emotional immaturity on the mother’s part to assume that as the father had rejected her he had also rejected his child. If the mother is left to control the time or have the time on her terms, there is not much room for optimism that she will promote the relationship between the child and his father in the future.
(iv)     She agrees she has less concerns than earlier about the father’s attitude to parenting. She concedes that the account she gave of the separation and following were not necessarily accurate and she would not repeat that now. She agrees there is no reason the father could not have more extended time. Starting overnight visits before the age of 4 would depend on what happens in the interim, such as longer day time visits and increased frequency and how the child responds to it. As she put it normally a child at age 3 could have overnight time if there is sufficient familiarity. The mother’s ability to facilitate it and her emotional reaction to it would affect how the child responds to it. She agrees it would be a good idea for the child to be introduced to his father’s home with enough time for him to have a routine there and the sooner the better. Interaction with the father’s daughter would also be important and there should be enough time for that at the father’s home. She sees no reason for the time spent to be away from the father’s home.
(v)      Having assessed the mother as anxious and overwrought she suggests any increase in the father’s time has to be done cautiously because the ‘mother’s mental health is very important to [the child’s] mental health’. If the mother has difficulty complying, it may be that the child will become insecure in his attachment because he will pick up her anxiety and become clingy. This might be mitigated if the child is able to develop a secure relationship with his father. The more significant people in his life he is able to become attached to, the better the child will fare. If the mother is anxious and distressed about the child’s time with his father there is not much the father could do and the mother may need some professional support.
(vi)     While she thinks the mother could cope with an outcome different to her proposal, she thinks the father’s proposal too rapid a progression for the mother to cope with.
(vii)     Asked about her recommendations, she adhered to her opinion in her first report that overnight commence at age 3, consistent with developmental norms, and there be progressions from there though that is subject to future unknowns about the child's development. She sees it as important to increase the time in the lead up to overnight and that the increase allow the child to adapt to the change in routine. It would be helpful if the routine were the same in both households. As for her suggestion of monitoring, she agrees that while this has obvious advantages there is also the drawback that it stirs up issues which would affect the child and it imposes a financial cost on the parents.
Before coming to other matters something more specific should be said of the mother’s anxieties about the risks to the child from time with his father outside the supervised setting which she outlined in her evidence and to Dr M. To summarise, the father had a lot of glass around the house; there was a boat being built in the back yard; others would be left to care for the child; the child would be exposed to unreliable and unpredictable care; the father’s daughter is not old enough or mature enough to look after him if the father is not there; the father’s grandmother is elderly and probably suffering dementia and she might be responsible for looking after him in the father’s absence; the father’s girlfriends would come and go and that would be confusing for the child; the child would be confined to the family circle; and the relationship between the father’s daughter and her father is odd – they are ‘a very touchy feely family’ and she believes they relate like ‘boyfriend and girlfriend’; the father’s daughter would probably be jealous of the child and she does not know what the father’s daughter will do to him; the child will be palmed off when the novelty wears off; the father and his family will continue to criticise her in front of the child; the paternal grandfather’s home on the River was ‘putrid’ with blowflies when she visited, dogs ate off the kitchen bench tops, there is an unfenced spa in the yard which is overgrown, there are stones in the yard and they keep birds in cages; she had found erotic magazines at the father’s home and she feared the child would be exposed to pornography.
The father and those of his witnesses this reflected on denied there was substance to any of it. In particular, the father made it clear he would not be leaving the child in the care of his young daughter – later when she is older that may change - or in the care of his elderly grandmother; he had taken steps to reappraise his house for safety issues; there are toys and a cubby house to which children as small as the subject child do not have unsupervised access; he does not have a dangerous back yard; he denies having a boat; children who visit his home always have another adult with them when they are in the yard and there is a nearby park. He provides photographs of his home and surrounds to support his claims.
As I find, there is no cause for concerns about the father’s ability to provide a safe and suitable environment in which to care for his son. Not only has he taken care to address the mother’s concerns but also as an experienced and apparently responsible parent it is accepted he is aware of what measures are necessary. In particular, it should be said that there is no substance at all to the mother’s supposed concern about the nature of the father’s relationship with his daughter. This strand to the complaints about his incompetence and unsuitability strikes an odd note given Dr M’s assessment, and it is of concern that the mother would have perceived or suggested otherwise.
It remains to say that when the matter had to be stood over part heard for Dr M to be available further interim orders were made with a view to advancing the time between the child and his father – 10am to 1pm each Sunday with changeover to take place at the play centre at the M Shopping Centre and the parents only to be present. The mother was also to give the father a list of foods the child eats, nominate any items he requires, and allow the father use of the pram on the first occasion from which point he was to get his own.

Best interests

I come now to evaluate this background by reference to the various relevant considerations.

primary considerations

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

In closing submissions criticisms were levelled by counsel both ways in advocating the parents’ cause. There were particularly strong criticisms of the husband by the mother’s counsel, Ms Hausman, on the topic of his failure to provide financial support for the child to the mother. There is no need to go into it any further here, but there is another aspect of Ms Hausman’s submissions which can be taken up at this point. Elaborated more fully in those submissions, the argument is apparently directed to ensuring awareness and understanding not only of the mother’s perspective on the shared history but also the personal characteristics of hers that have brought her to this point.
The mother has been assessed by Dr M as anxious and overwrought and it is to be accepted she has difficulty adapting to the challenges thrown up by the involvement the father is seeking to ensure he has in their son’s upbringing. It is very likely she has required the assistance of her legal representatives to arrive at the point of crafting her final proposal and it appears to remain difficult for her to confront future arrangements backed up by the authority of Court order beyond the limits of her own view of it, although Dr M thought she could cope with some extension. Dr M saw her anxiety as genuine and since there is nothing to gainsay that, her demonstrated vulnerability could not be seen as a subterfuge and therefore it is to be borne in mind in deciding the outcome. I trust it is not an unfair summary to say that Ms Hausman’s point, in effect, is that there cannot be a one-size-fits-all approach and individual disposition, being what it is, means that people have to be taken as they come.
For my part, I have no difficulty with that. As a general proposition it is readily appreciated that increasing pressure where support is thin can be counter-productive and certainly one objective in any decision about arrangements for a child is to have them succeed into the longer term rather than be under siege by continual controversy or break down. Yet there is also the incontrovertible fact that there are two parents and the other may have a different perspective and much to offer towards a balanced upbringing. Therefore the preferred result might not mirror the first parent’s proposals and vulnerabilities might have to be shored up by resort to supportive measures. So while decisions taken in the child’s best interests can absorb a parent’s characteristics and perspective – the child almost certainly will - that is not to say their view of things will prevail. The outcome may have to stretch beyond the limits of what is contemplated because to do otherwise would effectively deny the child the opportunity to develop a meaningful relationship with their other parent and gain all the considerable benefits to be derived from having that balance in their upbringing.
In this case much has been said of the mother’s anxious state which was often reflected in observable distress. It is taken into account since it has a direct or indirect impact on the child if that is not done and its importance to the prospects of success of the future arrangements now being determined is not underestimated. It is important nonetheless to balance that with other considerations to ensure the child is not cloistered by those anxieties but given the benefit of having a meaningful relationship with his father.

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

There is no sign that the child is suffering from any kind of abuse. But the evidence does give rise to a concern that the mother has taken some decisions about the child and his care in reaction to the father’s rejection of the relationship with her. If this were to become a pattern continuing into the future the question for consideration may become more focussed on whether the child is being exposed, wittingly or unwittingly, to emotional or psychological harm which hopefully can be avoided.

additional considerations

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

This is not applicable and no one suggests it is.

(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

The child can be seen as having an established relationship and attachment to his mother. While she harbours considerable anxiety about his arrangements with his father, that has not yet effected his attachment to her or impinged on the quality of his relationship with her.
It is accepted he has developed a good attachment to his maternal grandmother who has been involved with him to one degree or another for most of the time since his birth.
The establishment of a relationship with his father has not been without obvious challenges. The parents’ separation at the time he was just a baby inhibited the opportunity for the father to be closely involved in his day to day development in the early months. Then there was an absence of many months during a period usually accepted as a time a child forms recognition and familiarity with attachment figures. This was followed by time of limited duration in a supervised setting at a play centre in a large shopping centre with the activity and distractions that entails. It is accepted the father has done his best in that setting to foster his relationship with his son and he has been successful in some measure in that endeavour. If there is to develop the bonds and attachment so particular to the father/child relationship, plainly there will have to be changes and there is at least ostensible recognition of that. The question here is the rate and nature of change.
The child has not to this point had the advantage of developing a relationship with extended family on his father’s side, including his paternal grandparents. His contact and association with them has been unnecessarily restricted by the mother since his birth, as I find, and there is no sound reason for that to continue. This should be corrected sooner rather than later so the child identifies not only with his maternal extended family but also with his family on his father’s side.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

[(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)      to spend time with the child; and
(iii)     to communicate with the child; and
  (b)      has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

One of the striking features of the history has been the mother’s attitude to the father which has spilled over to her attitude to his role as a parent and his relationship with the child. From early on she sought to take the upper hand and restrict his involvement and that of his family. She did convert his rejection of the relationship with her to rejection of his interest in his son and Dr M was quite right to see this as emotional immaturity and a real deficit in her parenting. Dr M was also right, in my assessment, to recognise the need for change and for the father’s time to be extended.
The mother’s control of the limited time and her insistence on her mother’s presence and the absence of members of the father’s family might well have been driven by and catered to her anxieties, but objectively it has been unwarranted. There have also been intrusive and inhibiting incidents on those limited occasions such as the taking of photographs and recording and oversighting the play area. But for the restrictions imposed, before and after her move to Queensland, it could be reliably predicted that the child would have by now developed a stronger attachment to his father more in keeping with his age and stage of development as a two year old. As I find, the mother’s explanation for the unannounced departure for Queensland – she thought he was not interested in the child - was disingenuous in circumstances where she had failed to maintain the means of receiving communication from the father or to advise him of her departure and whereabouts. He did make enquiry about the child, to no avail. This history gives little cause for optimism about her support and facilitation of the child’s relationship with his father in the future. It can only be hoped that her confidence in the child’s safety and well-being while in his father’s care will grow over time and her anxieties will recede as a result although there is little footing for this presently.
I am satisfied the father is able to provide for the child's needs, including his physical needs, his emotional and psychological needs. There is nothing about the complaints of the mother of his environment or level of responsibility or attitude to his responsibilities in his proven track record as a responsible parent to give rise to concerns. He has provided well for the needs of his daughter in her upbringing to date and it can be anticipated he will do similarly with his son as time and the nature of his involvement with his upbringing extends. He was assessed by Dr M, and it is accepted, that he has an even and determined attitude towards parenting his children and his desire to provide the child with a reliable relationship is accepted as properly motivated and driven by his genuine desire to take a proper role with his son’s upbringing.
None of that is to say for a moment that the father can take the high ground in the way in which the relationship with the mother was brought to an end and the timing of that being brought about. Nor is there any high ground on the absence of any offer of financial assistance for the child's support to now - even recognising that the mother has not sought it. However those considerations doe not displace the fundamental assessment that he is to be seen as having much to offer in the upbringing of his son.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

There must be change to the child’s arrangements. They cannot continue as they are. The impact of any change on him will no doubt depend on the rate and nature of change, his response to it, his mother’s reaction to and support for it, and his father’s ability to provide a good level of care, stability and routine in the times he is responsible for him. As best it can be done, the outcome is designed to provide a balance between accommodating the mother’s anxieties, the father’s ability to provide him with good care, and his need to be able to develop his relationship with his father in a meaningful way.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The parents live some distance apart and that does create difficulties in implementing any arrangement. There are also work commitments and the father has commitments to his daughter’ regular care in his household.
Each parent has made proposals about the delivery and collection responsibilities to implement any arrangements put in place. The father’s proposal is to have the mother bring the child to his home at the start of the time so as to accommodate his commitments. While they include his responsibility for his daughter, it has consequences for the mother and her commitments. In the end, there is no solution that can satisfy both. To the extent other responsible adults need to be drafted in to assist when commitments have to be juggled, that can be reflected in the orders.

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

The child is a boy of just two years of age. Nothing more needs to be said of his background or the lifestyle of his parents.

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

(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

This is not relevant.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

There is the question of Dr M’s suggestion of monitoring and reviewing the arrangements in a couple of years time to be considered. This has advantages of course but she also recognised the drawbacks, more particularly the prospect of continued agitation of issues in readiness for later Court proceedings.

Parental responsibility

It is agreed there will be equal shared parental responsibility. Notwithstanding the difficulties of communication, that is appropriate. Neither parent should be excluded from participating in major decisions related to their son’s upbringing. To the extent necessary they will have to make a commitment to more constructive means of discussing them.

Time

The Act requires consideration of equal time. It is considered and rejected for obvious reasons. As for substantial and significant time, the regime to be imposed by the orders made now - at least when it develops into the longer term – fits that description.
In my assessment the arrangements reflected in the orders will be in the child’s best interest overall. They have been crafted so as to introduce changes earlier than the mother contemplated but not so rapidly as the father proposed. In coming to that view account has been taken of the mother’s fragility assessed by Dr M, the need for a cautious approach as a consequence, together with the assessment that she could cope with something beyond what she had proposed. Account has also been taken of the need for the child to be given the opportunity free of restraints formerly imposed by his mother to develop the secure bonds and attachment required in his relationship with his father who has much to offer him in a balanced upbringing and also give him the opportunity to get to know and develop relationships with paternal extended family, including his half sister and grandparents.
In particular, I am satisfied the father’s track record of parenting makes it very likely that overnight could be introduced when the child is 3 years of age which is now less than 12 months from now. In the lead up to that, there will be a gradual extension of the time in his father’s care which will occur regularly and by that I mean one day each weekend. In that time the child should become entirely familiar with his father’s household and others in the family and have plenty of time to become accustomed to a full day’s routine at his father’s before overnight is introduced. Initially that will be on alternate weekends limited to 24 hours so he will be returned to his mother the next morning and on the other weekend there will be a shorter period on one day. Up to then he will have been seeing his father every week and the alternation of overnight with a short period each week is to maintain that weekly contact for a time with a view to moving him eventually to longer alternate weekends with his father. By the time the weekends are extended from 10am Saturday to Sunday 5pm [age 4 in April 2011] the shorter visit during the other weekend can fall away but there will be introduced at that time three consecutive nights during periods coinciding with school holidays. The following year, from April 2012 when he is 5, there will be an extension of the weekends by starting after school Fridays [still concluding at 5pm Sundays] and there will be introduced four consecutive nights during the periods coinciding with school holidays. The following year, from April 2013 when he is 6, the alternate weekends will be extended into Monday mornings [or Tuesday] and the school holiday periods will be extended to half. Progression at some later stage beyond the end point contemplated by these orders would depend on the circumstances at the time, not the least being the distance between their residences.
As for special occasions, the orders are drafted to provide for Christmas Eve and Christmas Day to be alternated until the school holidays become shared equally and they will then be alternated between first and second half and thus will absorb the Christmas period. The distance between residences suggests this is more appropriate than the child being ferried back and forwards in quick succession. It is not ideal and other arrangements might be thought better but the parents will always be free to come to some other arrangement more to their liking. Mother’s Day and Father’s Day features in their proposals and the order will merely provide for the child to spend the day with the relevant parent if not already scheduled to be in that parent’s care - 10am to 5pm is stipulated unless it is otherwise agreed.
As for the changeover arrangements, there will be equal responsibility for travel and, despite the argument to the contrary, the orders provide for the father to collect the child at the commencement of his time and the mother will be responsible for collecting him at the end. This is because that arrangement places the obligation on the parent who will from that point have the child in their care rather than him being taken there by the other parent. Another responsible adult can do so if they cannot.
As for the changeover venue, the child is likely to be more comfortable waiting at each parent’s home than anywhere else and I can find no reason for it to be elsewhere. The arrangement will eventually be for the child to go to his father after school Friday and if his father is living in sufficient proximity to his school that can be extended to before school Monday. A Monday morning return is simply impracticable as things now stand. There is no particularity about time because there has to be some flexibility about it. The orders envisage that on Friday afternoons he will either be collected from school by his father or nominee or from the mother’s residence as soon as practicable after the end of school. On Mondays or Tuesdays if Monday is a public holiday he will be collected by his mother in sufficient time to get him to school. If another arrangement proves to be more workable having regard to where ever they are both living and he is attending school then they are always free to agree about it.
There is the question of an order prohibiting the father from leaving the child in the sole care of the father’s daughter but it is not taken up because the father can be relied on to make an appropriately responsible parental decision about such matters without the direction of a court order.
The mother’s proposal to the effect that she not be obliged to make the child available in the event of sickness is unnecessary. Should such an event occur it would be hoped common sense would prevail but there is no need for the possibly fertile ground for later dispute that a court order could provide.
Finally, I am not satisfied there is sufficient merit in making an order for a review in a couple of years time. It has the obvious disadvantages alluded to earlier. Children’s arrangements can always be reviewed if the circumstances warrant it and this child’s interests are best left at that.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate:

Date:

[2009] FamCA 456

29 May 2009

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