MOSES & DOWNING

[2009] FamCA 1270

FAMILY COURT OF AUSTRALIA

MOSES & DOWNING [2009] FamCA 1270

FAMILY LAW – CHILDREN – BEST INTERESTS – Male child ten years – Child diagnosed with ADHD – Mother seeking equal shared parental responsibility and equal time order - Mother in the past has expressed belief that she and father cannot co-parent child because of entrenched conflict – Mother’s health difficulties – Child recently has lived with father and spent time with mother – Parental responsibility – Child’s best interests will be met by order that father have sole parental responsibility – Father to consult with mother before making decisions – Child’s living arrangements – Child’s best interests will be met by order that he live with father and spend time with mother

Family Law Act 1975 (Cth) s 60B, s 60CC, 61DA

Biss & Biss [2009] FamCA 1234
H & H (2003) FLC 93-168
Korban & Korban [2009] FamCAFC 143
McCall & Clark [2009] FamCAFC 92
MRR and GR [2009] HCATrans 316, 3 December 2009
T & N [2001] FMCA fam 222

APPLICANT: Mr Moses

RESPONDENT: Ms Downing

FILE NUMBER: BRC 8043 of 2008

DATE DELIVERED: 23 December 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 21, 22, 23, 26 and 27 October 2009

REPRESENTATION:

SOLICITOR FOR THE APPLICANT: Ms Awyzio
DA Family Lawyers

THE RESPONDENT:  Self represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Drysdale

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bell

Legal Aid Queensland

Orders

IT IS ORDERED

Parental responsibility

1. The father have sole parental responsibility for B born … December 1999 (the child) provided that in relation to the major long-term issues concerning him including his education both current and future, religious and cultural upbringing, health and changes to his living arrangements that may make it significantly more difficult for him to spend time with the parties or either of them he must consult with the mother in writing in the manner set out in paragraph 2. 

2. The father, before making any decision in relation to the major long-term issues concerning the child, must:

   (a)advise the mother in writing of the decision intended to be made;

   (b)seek the mother’s written response in relation to it;

   (c)consider, by reference to the child’s best interests, any response by the mother; and

   (d)advise the mother in writing as soon as reasonably practicable of his decision.

Living arrangements

School terms

1. During school terms the child live with the father and spend time with the mother at all times as may be agreed in writing between the parties but failing agreement on alternate weekends from after school Friday (or Thursday if the Friday is a pupil free day or public holiday) until before school Monday (or Tuesday if the Monday is a pupil free day or public holiday), such weekends to coincide with the weekends when JG is spending time with the mother and her partner RG. 

School holidays

1. For the balance of the 2009/2010 Christmas school holiday period, unless the parties have made other arrangements for the child already and subject to any different arrangements which may be agreed in writing between the parties, the child spend 8 days with the mother between 8 and 16 January 2010, with changeover at 12 noon on both of those days. 

2. During school holidays, commencing with the Easter school holiday period in 2010,  the child spend time with the mother and the father at all times as may be agreed in writing between the parties but failing agreement:

   (a)the first half in or commencing in even years and the second half in or commencing in odd years with the mother and the second half in or commencing in even years and the first half in or commencing in odd years with the father;

   (b)the first half is to commence after school on the last school day of each term; and the second half commence at 9.00am on the middle day of the school holiday period or if no middle day at 9.00am on the day following the midpoint and end on the morning of the first school day of the school term.

Special days

1. If the child is not already spending time with the mother on Mother’s Day, he spend time with her on that day from 9.00am until 5.00pm.

2. If the child is not already spending time with the father on Father’s Day, he spend time with him on that day from 9.00am until 5.00pm. 

3. The child spend from 3.00pm on Christmas Eve until 3.00pm on Christmas Day with the party with whom he is not spending the first half of the Christmas school holiday periods.

4. The child spend two hours on his birthday with the party with whom he is not then spending time unless the child’s birthday is a changeover day, and if no other period be able to be agreed between the parties, the two hours be from 4.00pm until 6.00pm.

Changeover

1. The following changeover arrangements apply unless otherwise agreed in writing between the parties:

   (a)if changeover occurs on a school day, at the child’s school, or after or before school care facility if outside school hours and the parties have notified each other of that;

   (b)if changeover occurs on a non school day, the father is to deliver the child to the mother’s home at the commencement of time with the mother and the mother is to deliver the child to the father’s home at the conclusion of time with the mother, provided that the party delivering the child is to remain in his/her motor vehicle at the delivery and ensure that the child proceeds into the home of the other party, and that party is to remain inside his/her home and not approach the delivering party.

The child’s school

1. Unless and until the father should make a decision as to a different school for the child, by the process set out in paragraph 2, the child is to attend the R State Primary School until the completion of his primary schooling. 

Attendance at the child’s school

1. The parties may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like. 

Telephone communication

1. The parties are to permit the child to have liberal telephone communication with the party with whom the child is not spending time, including on special days.

Inability

1. If the mother proposes at any time that the child not spend time with her as set out in these orders she must notify the father in writing as soon as practicable. 

Parties’ communication

1. All written communications between the parties concerning the child, including in relation to parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the child and the carrying out of these orders.

2. To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or text message service number and give written notice of any change of such within 24 hours of any change.

Information

1. The parties must keep each other informed of his and her residential address and emergency contact telephone number and give written notice of any change of such within 24 hours of any change.

2. The parties must notify each other as soon as practicable of an serious accident or injury concerning the child.

3. The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the child attends and authorise such to provide to the other at his/her request and expense any information or reports concerning the child provided that this order is sufficient authorisation to do so.

4. The parties must authorise the child’s school to provide each party at his/her request and expense copies of school reports concerning the child and any circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Non denigration

1. The parties must not denigrate each other in the presence or hearing of the child and use their best endeavours to ensure that other persons do not do so.

Adult issues

1. The parties must not discuss adult issues with or in the presence or hearing of the child and use their best endeavours to ensure that other persons do not do so.

Physical discipline

1. The parties must not use physical discipline in relation to the child and use their best endeavours to ensure that other persons do not do so.

Drink driving

1. The parties must not drive the child in any motor vehicle after consuming alcohol nor permit any other person to do so.

Child’s passport and overseas travel arrangements

1. By the consent of the parties, in accordance with Annexure A.

2. The minute of orders in relation to Annexure A signed by the parties be placed and kept on the Court file.

All other orders discharged

1. All other orders concerning the child are discharged.

All other applications dismissed

1. All other applications concerning the child are dismissed.

Independent children’s lawyer

1. The independent children’s lawyer is discharged.

Liberty to apply

1. The parties and the independent children’s lawyer have liberty to apply by arrangement directly with the Associate if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8043 of  2008

MR MOSES

Applicant

And

MS DOWNING

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings concern B born in December 1999 now ten years (the child) whose parents are Mr Moses (the father) and Ms Downing (the mother).

2. The father commenced these proceedings by initiating application filed 2 September 2008, seeking final orders that the child live with him and spend supervised time with the mother on alternate weekends at a contact centre; he have sole parental responsibility; and other orders. Ultimately however the father proposed that the child spend time with the mother as agreed in writing but failing agreement on alternate weekends, from 9.30am on Saturday until 4.00pm on Sunday, but with provision for extension of that with time commencing after school on Friday if the mother notified her availability for such; half of the school holidays; and other orders including that in relation to the father’s sole parental responsibility he consult with the mother before making decisions.

3. The mother, by her original response filed 9 October 2008, sought orders in terms of Option A and Option B, Option A providing that the child live with the mother and have no contact with the father but that if “supervised visits” with the father are considered such be a matter for the child as to “whether he wants to attend” and specifying that the visits if they occur be once each month for four hours at the H Contact Centre, and Option B providing that the child live with the father, he have sole parental responsibility, and that he encourage and facilitate the child contacting the mother by email or in writing should the child express the wish to do so and other orders.  Notably, in her original response, Option B, the mother did not seek an order that the child spend time with her.  By an amended response filed 20 October 2009, the mother again sought orders in terms of Option A and Option B, Option A providing that the child live with the mother and have no contact with the father, and Option B providing that the child live with the father and have the right to contact the mother by telephone, email and other means if he so chose and other orders.  However, ultimately, in written submissions which on 27 October 2009 I directed the mother may file and serve, she proposed that the parties have equal shared parental responsibility, and that the child spend such time with each party as may be agreed, but failing agreement, during school terms equal time on the week about basis with changeover to occur on Fridays at the child’s school or after school care facility, and during school holidays equal time on the first half/second half basis, with the child’s birthday, Christmas Day and Easter to “form part of the school holidays and not to be treated differently” plus provision for the child to spend the full weekend with the mother on Mother’s Day and the full weekend with the father on Father’s Day.  The mother proposed further in her written submissions that the child attend school “at the [M] College only” and several orders relating to child support matters (pars 8-12 of the mother’s written submissions). 

4. It is necessary to state at the outset that in these proceedings no departure order was sought in relation to any assessed child support, the issue of child support thus was not litigated and as such in these circumstances the parties need to approach the Child Support Agency in relation to any child support issues. 

5. The independent children’s lawyer proposed that the child live with the father and spend time with the mother as agreed in writing but failing agreement on alternate weekends from after school on Friday until before school on Monday and half of the school holidays; supported the father’s proposal that he have sole parental responsibility, but urged that there be orders providing that he consult with the mother before making decisions; and otherwise supported the orders proposed by the father.

Background matters

1. The parties commenced a relationship in about 1994, and to live together in about 1995.  They did not marry.  The relationship ended in early 2005, with the parties then separating.

2. Following separation, the child lived predominately with the mother until August 2008 (see ex 10) when the mother made arrangements for the child to live with the father.  The mother does not dispute the following evidence as to the circumstance of the child coming to live with the father in August 2008, as set out in the affidavit of Mrs Moses, the paternal grandmother:

   On Monday, 11^th August 2008, I received a phone-call from [Ms Downing] (my grand-son’s mother).  I said it was not appropriate to talk to her but she was upset and insisted.  My son [the father] was present so I put the phone on speaker and the following conversation took place. 

   [The mother], “[B] has a high degree of conflict and I think he is lying to me and I know he is lying to all of you.”

   Self, “[Ms Downing]’ I can’t discuss this with you.  You have to talk to [the father].”

   [The mother], “I can’t get him on the phone.  You have to talk to me because I can’t have [B] with me.  You have to take him or he will go into care.”

   Self, “[Ms Downing], you should talk to your Solicitor.  I can’t help you with this.”

   [The mother], “I don’t have one anymore.  I can’t afford it.”

   Self, “[the father] can’t either.  Look, I don’t know what to do.  I have been instructed not to talk with you.

   [The mother], “I know.  I have been instructed not to talk to you either, but if you don’t get him from school to-day, he will be in care by to-night.”

   Self, “I have talked to [the father].  We don’t even have a phone number for you so how can I even get back to you? And what about school? It is so far away.  And what about the I legal side of it all?

   [The mother], “I know I will have to sign something legal but this has to be resolved to-day.  Talk to [the father] and I will ring you back.”

   Self, “Alright.  Ring back at 12 o’clock.”

   Following this conversation, we called [the father] who consulted with his Solicitor and when [the mother] called back, I gave her the phone number of DA Family Law and told her to call for instructions.

   I picked [B] up from school that day and he is now in his Father’s care.  (emphasis added)

3. It is plain, based on this evidence, that the mother had formed the view, as at 11 August 2008, that the child should live with the father or “he will go into care.”

4. On 8 August 2008, the mother had disclosed to the Department of Community Services (Child Safety) that she was no longer willing to care for the child; that the child was “very difficult behaviourally” such that she was at her “wits end”; and that the mother and her partner, Mr RG, were “weighing up the options and considering placing [the child] into care”: see mother’s interview with Ms N, Department caseworker, ex 1, p67.

5. The mother, sadly, had been a victim of abuse as a child, and had lived with several foster families before the age of 12, before being placed with Mr and Mrs Downing, who became her permanent foster parents.  The mother calls Mr and Mrs Downing “Mum” and “Dad”, and plainly found nurture and protection with them.  The mother still has a very close association with them, who in effect are the child’s maternal grandparents.

6. The mother said in her oral evidence that as at 8 August 2008 several factors had lead to her decision that the child also should be placed into foster care, and indeed proposed that the child’s foster parents be Mr and Mrs Downing.  First, the mother said that she and the father had such a high level of hostility and entrenched conflict that they could not “co-parent” the child.  Secondly, in June 2008, the child had bruising on his leg, and had told the mother that the father had hit him on the leg with a “pool cue”, at a hotel, and she was concerned as to this and other allegations by the child including that the father “gets drunk” and has given the child alcohol.  The child since has retracted the allegation as to the father hitting him, saying that he had cut his leg at school; and has said that he lied about the father hitting him with a pool cue as Mr RG, the mother’s partner, had threatened that if he did not “say bad things about his father” Mr RG would “hit him with a belt”: see ex 1, pp2, 3, 6, 34 and 62; being an allegation denied by Mr RG.  Thirdly, the child had been diagnosed with ADHD, and the mother said she was not able to deal with his behaviour, saying “I had no other option” and “I didn’t know what to do about him anymore”. 

7. The mother said that the Department had explained to her that the child could not be placed into foster care without the father’s permission, and that thus, on 11 August 2008, as described, she gave the child into the father’s care. 

8. Between August 2008, and July 2009, the child did not spend any time with the mother, other than for the purpose of interviews on 1 May 2009 with Mr L, psychologist, for the purpose of a report in these proceedings.  Between July 2009 however, and the time of the trial, late October 2009, the child spent alternate weekends with the mother that is, on eight or nine occasions, with seemingly only two occasions of difficulty, to which I need not specifically refer.

9. The father lives in a Brisbane suburb with the child.  The father is in a relationship with Ms C, which has subsisted for about two years.  The father and the child on occasions stay overnight at Ms C’s home, however, the father and Ms C do not live together.  The child spends time with and on occasions stays with Mrs Moses and her husband, who are the paternal grandparents. 

10. The mother lives with Mr RG, west of Brisbane.  At the time of the trial they were engaged and planning to marry on 20 December 2009.  Mr RG has two adult children, and a daughter JG, 12 years.  JG spends alternate weekends and half school holiday periods with Mr RG and the mother. 

11. The child, since living with the father, has attended the R State Primary School (since the commencement of Semester 4 in 2008).  Prior to that, the child attended the M College, west of Brisbane.

12. In March 2008, the mother was diagnosed with a pituitary tumour, causing her to spend time in intensive care over a three week period.  She declined surgery, which had been recommended by a neurosurgeon, in favour of a differing opinion that surgery was “not an option”.  Under the care of an endocrinologist, the tumour shrank, with effect that presently the mother is symptom free. 

1. In September 2009, the mother underwent surgery in relation to a gynaecological condition and was recuperating at the time of the trial. 

2. The father is in employment, which on occasions involves overseas travel. 

3. The mother, before her recent hospitalisation, also was in employment.  At the time of the trial, her recuperation prevented her from being in employment.  However, at the time of the trial, the mother proposed to return to full time employment, if available, in the near future. 

4. Mr RG is in employment.

5. The mother and Mr RG, at the time of the trial, planned to have a child or children together in the near future.

6. The mother was diagnosed, apparently in about May 2002, when she was 24 years, with “recurrent major depressive disorder of moderate severity with good interepisode recovery”: report Dr F, the mother’s treating psychiatrist, dated 9 June 2009, annexed to his affidavit filed 1 September 2009.  According to Dr F (same report) the mother suffers also from “post traumatic stress disorder of mild to moderate severity and chronic duration”, described as “complex in that it results from multiple episodes of childhood trauma”, which “while ever present fluctuates between mild and moderate symptomatology”.

Notice of Child Abuse or Family Violence

1. On 21 January 2009, the mother filed a Notice of Child Abuse or Family Violence.  I would refer, without setting out, to the alleged abuse and risk of abuse concerning the child (Parts E and F) and to the alleged family violence and risk of family violence (Parts G and H). 

The issues

1. Mr P, social worker, and the family consultant engaged in the matter, outlined in his family report dated 24 December 2009 the following as the “pertinent issues” concerning the child, from his perspective:

   ·    The impact of the current dispute on the child noting his developmental vulnerabilities.

   ·    The protracted litigation and the apparent embedded and seemingly habitual nature of the parties raising claims of neglect against the other.

   ·    The continuation of high levels of interparental conflict and the absence of any indicators of change despite multiple court orders being in place.

The evidence

1. The father relied upon affidavits by himself, the paternal grandmother (two affidavits) and the paternal great aunt.

2. The mother relied upon affidavits by herself, Mr RG, her partner, and Dr F, her treating psychiatrist. 

3. The independent children’s lawyer relied upon affidavits by Mr L, psychologist, who provided a report; Mr P, the family consultant, who provided a report, Ms Y, principal of the R State Primary School, who provided a report, Dr D, medical practitioner, employed at the Child and Youth Mental Health Service, who provided two reports, and Dr J, medical practitioner, who provided a brief report concerning an injury suffered by the child in June 2008.

4. The paternal grandmother, the paternal great aunt, Ms Y and Dr J were not required for cross examination.

5. In addition, the parties tendered an agreed bundle of documents (ex 1) and other documents comprising exs 2 – 10.  Exhibit 8 comprised a videotape of the child, on 12 June 2006, showing an episode of distress by the child while interacting with the mother, the episode having being filmed by the mother who had placed a video recorder on a tripod, or similar, to record the episode.

6. It is not necessary to refer to all of the evidence.  If in these reasons I should not refer to the evidence of a particular witness, or parts of the evidence of any witness, it ought not be inferred it has been over looked.  All of the evidence has been considered carefully.  It is convenient to consider salient parts of the evidence in relation to the statutory matters which must be considered. 

Principles relevant to parenting orders

Children’s best interests paramount

1. Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

1. Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:

   ·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

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:

·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

·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

·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

·parents should agree about the future parenting of their children; and

·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

1. Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.

2. The primary considerations are:

   ·the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The additional considerations are too numerous to set out.  However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

1. Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.

2. Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time 

1. Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:

   ·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and

   ·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

1. Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:

   ·days that fall on weekends and holidays; and

   ·days that do not fall on weekends and holidays;

and:

·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

·allows the child to be involved in occasions and events that are of special significance to the parent,

although regard may be had to other matters.

1. Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:

   ·how far apart the parents live from each other; and

·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

·the impact that an arrangement of that kind would have on the child; and

·such other matters as the Court considers relevant.

Prior parenting plans

1. Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

1. The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

1. Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The statutory matters

The child’s best interests

Section 60CC(2) – the primary considerations

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

1. There is no doubt, on the evidence, of benefit to the child, currently and prospectively, of having a meaningful relationship with both of his parents.  See McCall & Clark [2009] Fam CAFC 92 at [108]-[122], especially at [119], [122].

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

1. The parties each have made several allegations as to harm or potential harm to the child in each other’s household.

2. I have referred to the child’s allegation that the father hit him with a pool cue, then retracted the allegation, saying he had cut his leg at school.  Dr J described the child’s injury as “abrasion to R ankle/shin”: affidavit Dr J, Annexure B.  I am satisfied, having regard to the child’s retraction and later statement, that it is unlikely that the father hit the child with a pool cue and likely that the child suffered the minor injury described by Dr J at school. 

3. The father has two convictions for drink driving, one when he was 18 years and one more recently.  Whilst neither should have occurred, the readings were low.  The mother alleges the father consumes alcohol to excess.  However, he denies this. 

4. The child alleged that Mr RG had threatened to hit him with a belt with “rusty fish hooks on it”.  Mr RG denied this.  The mother said that the notion of the “rusty fish hooks” is “an old wives tale” or “story” invented by Mr RG’s mother as a “story for naughty children” which story is “funny” and has been “blown out of proportion”. 

5. In my view, there is not any present need to protect the child in either household.  However, having regard to the past allegations, I propose to include orders that the child not physically be punished in either household, and that the parties must not drive the child in any motor vehicle after consuming alcohol nor permit any other person to do so. 

Section 60CC(3) – the additional considerations

Any views expressed by the child

1. It is clear from the reports of both Mr P and Mr L that the child wishes to be able to spend time with each of his parents.

2. The mother said that on the last weekend before the trial, when the child was with her, he said to her that he did not want to live with the father.  However, the mother said that this arose in the context of the child seeing “Court” written on the mother’s calendar and that she had discussed with him her “two options”, and “why she felt that way”, which had resulted in the child’s statement.  In the circumstances, little weight can be placed on the child’s remark. 

3. Mr P said in his oral evidence that if it had not been for the further matters stated to him as evidence given at the trial, probably he would have said that in his view reasonable weight could be put on views expressed by the child, but that on the basis of those matters it was obvious that the child was in a “terrible state of confusion” and that he “feels he has to choose” between his parents.  He said that, in that circumstance, of a ten year old child being required to choose to live with one parent or the other, with no co-parenting, “You might get behaviour comments not accurate at the time”.  Mr P accepted the proposition, ultimately, that presently it is not reasonable to give great weight to the child’s opinions as to where he wants to live and with whom.  Mr P further said to the effect “What confuses everyone in these matters is, we get to the point where [the child’s] confusion is such you don’t know what weight to put on what he says”.

4. Mr L said that generally he would be inclined not to put great weight on the views of a nine year old child (as the child was at the time of Mr L’s interview), specifically any expressed view as to with which parent he would prefer to live.

The nature of the child’s relationships

1. The mother said that she had a “very good relationship” with the child and that they are “open and honest with one another”.  However, the conversation with the child as to her “two options”, and “why she felt that way”, exemplifies that she involves him in discussions as to adult issues, with little regard for his age.  A similar example was given by the mother of a discussion with the child in August 2008, shortly before placing him with the father, the mother saying in her evidence “I discussed with him his behaviour and the ramifications of his behaviour”, and “I told him if he didn’t behave he would have to live with his father.”

2. There is evidence to suggest also that the father has embroiled the child in discussion about the mother, such that the child’s relationship with each of his parents has not been free from association with their own conflict.

3. There is evidence that the child is wary of Mr RG, and has experienced adjustment difficulties with Mr RG’s daughter, JG.  However, there is no reason to think that these have been other than a product of step-sibling adjustment.

4. The father said that the child gets on very well with his partner Ms C, whom he calls “Shorty”. 

5. The child, it appears, has appropriate relationships with both the paternal grandparents, and the maternal grandparents. 

6. Mr L said that the child has “good attachments” with each of his parents.

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

1. The father professes a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother.  In his favour, this has been demonstrated by the child successfully spending time with the mother on the eight or nine alternate weekend occasions (with the exceptions I have mentioned) between July and October 2009, despite the child not having seen the mother between August 2008 and July 2009 (other than on the day of interview with Mr L). 

2. The mother said repeatedly throughout the trial that in her view she and the father cannot co-parent the child, referring to circumstances such as “twelve years of hostility” and that there is no point in her trying to make arrangements with the father concerning the child, because whatever she proposes he rejects.  The mother expressed the view that, unless the child should live with her, she will not be able to have a continued relationship with him because, although the father has facilitated the weekend time since July 2009 in her belief he has done that only because of the pending Court proceedings and that, once concluded, he is unlikely to continue to facilitate and encourage the relationship between the child and her. 

3. It is thus surprising that in the mother’s written submissions she proposed that the child spend such time with each party as may be agreed, but failing agreement on the equal time week about basis during school terms, and half of the holiday periods.  Whilst the mother’s written submissions thus show a marked increase in her willingness to co-parent the child, and thus, it would appear, to facilitate and encourage a close and continuing relationship between the child and the other parent, the proposal in the mother’s written submissions not only is contrary to her evidence at the trial, but contrary to what appeared at the trial to be a considered and entrenched view. 

4. Mr P, in his report at par 47, said that he believed “on the face of it” the mother is the parent more likely to promote a relationship between the child and the other parent but “the difficulty with this option” (Mr P then was considering the mother’s “options”) is that the mother has “clearly indicated that she is not prepared to have [the child] live with her unless he does not spend time with his father.”  However, despite Mr P’s view, significantly the father has not failed to promote a relationship between the child and the mother between July 2009, when the child’s time with the mother recommenced, and the time of the trial, by ensuring that the child has spent time with her. 

5. The highly conflictual relationship between the parties presents a difficulty for the child.   

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

1. The child experienced separation from the mother between August 2008 and July 2009.  This change occurred without any preparation for the child.  The father said that it “took a long time” to settle the child, and that he engaged Dr D to assist and counsel the child in his transition.  Although the father changed the child’s school from M College to R State Primary School, he explained that he lives a considerable distance from M College, west of Brisbane, such that the time for and distance of travel for both him and the child was not practicable. However, he did not change the child’s school immediately, but waited until the Semester 3/Semester 4 break to effect the change. 

2. Plainly, a change now for the child to spend equal time on the week about basis with each of his parents during school terms would amount to a further significant change for him.  At the time of the trial, the mother was about to marry Mr RG.  As has been mentioned, the child is wary of Mr RG.  JG, Mr RG’s daughter, is in their household on alternate weekends and for half school holidays.  Thus, predominantly, in the mother’s household, there would be the mother, Mr RG and the child. 

3. Mr P said in his report (par 47):

   47.As a result of my assessment I feel the priority in this matter is to stop the cyclical nature of the dispute between the parents.  I believe only then might [the child] feel disentangled from the emotional mess that his parents have placed him in.  In order to achieve this I feel [the child] needs to live with the parent deemed by the court to be the parent most capable of immediately providing him with a sense of security, stability and consistency. ….(emphasis added)

1. Presently, on all of the evidence, the child has “security, stability and consistency” in the father’s home.

2. A change now for the child to spend equal time on the week about basis with each of his parents during school terms, in my view, at least potentially would carry the risk of a repeat episode of the mother and Mr RG deciding that the child should not live with them, for one reason or another, as to which again I would refer to the mother’s interview with Ms N, Department caseworker, record of interview, ex 1, p67.

3. Mr L said that if the child returned to M College, whilst there is almost always trauma associated with change, the existence of a prior peer group would augur well for readjustment, particularly if the child could maintain a relationship also with any peer group established at the R State Primary school.  

4. The mother’s new proposal for equal time on the week about basis during school terms and half holidays would represent a significant change for the child, particularly as the parties’ homes are a considerable distance from each other. 

5. Moreover, in such case, whether the child attended the M College or the R State Primary School (he could not attend both, on the week about basis!) then in alternate weeks there would be significant travel for the child twice on each school day.  I have referred already to the father’s evidence as to the considerable distances involved.  The mother’s written submissions estimated the round trip between the mother’s home and the father’s home as “1½ hours”.    

Practical difficulty and expense

1. The mother presently is not in employment and is in debt.  However, Mr RG supports her and no doubt would assist the mother with the child’s expenses if he were to live with them, and similarly would assist the mother with travel and other expenses in relation to changeovers whether the child were to live with the mother or the father, or there be an equal time arrangement.

2. I have referred already to the geographical distance between the parties’ homes.

3. On the last day of the trial the parties, to their great credit, were able to agree a changeover regime, which will be reflected in the orders, and which reflects, at least to some degree, shared travel expense.

The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs

1. The parties are each interested in the child’s education and physical needs. 

2. Unfortunately, the evidence shows that each party has a history of denigrating the other party and embroiling the child in their own conflict.

3. Mr P said, in his oral evidence, after being given a brief summary of some salient parts of the evidence at the trial “I’m very worried about this young boy, about his mental state” and said that as a result of what he had learned at interview and heard summarised at the trial he was very worried about “the adult conflict he has been embroiled in.”

4. Mr P said further in his oral evidence to the effect that each party is seeing the present difficulty through his and her own “lens”, or view, and that in particular the mother, by continued reference to past events, is “recalling the father through a memory lens as a spouse rather than a co-parent now.” The mother’s written submissions, par 28, exemplify this view and give it current validity. 

5. Mr L said he had a lot of compassion for the mother as a person who had suffered abuse as a child, and explained a psychological theory that children who have suffered abuse can develop hypervigilance in looking for threats of harm, and can develop coping mechanisms of various kinds.  Thus, he explained that the mother’s alternative proposals for Option A and Option B, each comprising “all or nothing” may be informed by “schemas” developed earlier in her life as mechanisms to ensure calm in her own life, which, if in existence in the mother (as to which he did not express any diagnostic opinion) could “tip her reasoning” as to what is in the child’s best interests, namely, to have a relationship with both parents, rather than only one parent.

6. The mother’s written submissions, however, now propose that the child spend such time with each party as may be agreed, but failing agreement on the equal time basis week about during school terms and half holidays, which would indicate that perhaps the trial experience has given her a better understanding of the child’s need for co-parenting so as to have the benefit of a meaningful relationship with both of his parents.  Indeed, par 25 of her written submissions would seem to reflect such a change in her thinking:

   25.It appears on the face of the evidence a shared parenting (ie. 50/50) arrangement is something that [the child] would benefit from having both parents equally in his life.

7. However, I have referred earlier to the mother’s conversation with the child on the last weekend before the trial.  On any view, it was inappropriate for the mother to involve the child in emotional discussion as to her views of the imminent Court proceedings and, as earlier observed, this showed little regard for his age.  I have referred also to the mother’s conversation with the child in August 2008, shortly before placing him with the father, “I discussed with him his behaviour and the ramifications of his behaviour”, and “I told him if he didn’t behave he would have to live with his father.” Plainly this was inappropriate.  Further, as I have mentioned, the change to the father’s household occurred without any preparation for the child. 

8. On the last day of the trial, the mother applied to introduce into evidence the videotape, which became ex 8, and requested that it be played in open court, which occurred.  The videotape showed a disturbing interaction between the mother and the child on 12 June 2006.  Although now occurring more than three years ago, when the child was only 6½ years, the interaction showed little insight by the mother in relation to the child’s needs and indeed, in my view, the mother’s conduct and treatment of the child shown in the videotape is capable of amounting not just to poor parenting skills but to child abuse.  In particular, when the child was in a clearly distressed state, the mother seemed not able to offer comfort, but only criticism; showed self focus “You are hurting mummy’s feelings”, repeated three times, rather than child focus, which caused causing the child to say “I’m sorry”, and apparently to hit himself causing the mother to say “Don’t hit yourself”, with the child responding “I deserve it”.  The episode was repetitive and prolonged, with the mother, in my view, causing the child’s distress rather than assisting to alleviate it.  Moreover it is plain from the context that the child knew he was being videotaped.  The mother’s poor parenting skills, as demonstrated by the videotape, are disturbing.  I have specifically mentioned that the episode occurred more than three years ago.  However, the mother’s conversations with the child in August 2008 and on the weekend before the trial are not encouraging of the view that the mother’s parenting skills are likely to have improved since then.  The most disturbing aspect perhaps, of the videotape, is that the mother said her reason for wishing to have it played in Court was “to demonstrate [the child’s] behavioural difficulties”, that is, in essence, what the mother has had to “put up with.”  Perhaps, however, the mother also wished me to understand, by watching the videotape, her sense of desperation when finally she made the decision in August 2008 to place the child with the father, and also to understand her description of the child as “conflicted”, for me better to understand the underlying basis for her then alternative proposals based on sole parenting for the child rather than co-parenting. 

9. Mr P, in his oral evidence, prefaced many of his observations in relation to the mother expressly “with compassion” for her.  Whether the mother’s parenting style, alternative proposals for the child as at the time of the trial, based on sole parenting, and her doubtful capacity to provide for the child’s emotional needs demonstrated by the two conversations referred to and the videotape stem from her own experience as a victim of child abuse, however, or independently, unfortunately they are present as a reality in the child’s life. 

10. As is evident, I have focussed on the mother’s capacity to provide for the child’s emotional needs, because of specific focus about that at the trial, in particular having regard to the unusual circumstance in August 2008 of the mother surrendering the child to the father and then absenting herself from the child’s life.  However, Mr P’s view is that both parties’ parenting capacities can become compromised in the context of continuous denigration of each other’s character (report, par 46), and I have not overlooked the mother’s evidence of the child reporting to her on several occasions denigrating things the father has said about her and matters which, if true, show the need for considerable improvement also in his capacity to provide for the child’s emotional needs. 

11. I have mentioned the child’s allegation in relation to the pool cue, which was then retracted, and my finding in relation to that.  The mother alleged that the father had given the child a pocket knife.  The father denied that, but said that his parents, the paternal grandparents, had given the child “an old pocket knife” but that it remains at the paternal grandparents’ home for the child to use when he is there and is used when helping the paternal grandfather in the garden.  This explanation seems credible, and I accept it.  The mother alleged that the father drinks alcohol to excess, has taken the child to hotels and given the child alcohol.  The father said, which I accept, that on some family occasions he and his family have taken the child to a tavern to eat “in the family restaurant” at the tavern.  The father denied drinking to excess and denied giving alcohol to the child.  There is no evidentiary basis to reject the father’s denials.  The mother alleged that in 2006 the father engaged in dangerous driving by attempting to “tailgate” Mr RG.  The father denied this, offering a different version.  However, the evidence was not such as to allow a finding.  At the trial, I had the impression that, possibly, each of the father and Mr RG may have been aggressive on this occasion.

12. On the positive side, for the father, he acted appropriately in August 2008 in promptly obtaining medical and counselling treatment for the child by Dr D, and has ensured that the child’s emotional and other needs have been met since the child came to live with him in August 2008. 

13. There was no suggestion in the evidence that the mother’s recent health problems relating to her tumour diagnosed in March 2008, her recent gynaecological surgery in September 2009, nor her condition as described by Dr F, earlier mentioned, have any effect on the mother’s capacity to provide for the child’s needs.  Specifically, Dr F said in his report dated 9 June 2009 that whilst the mother’s major depression and post traumatic stressors “have had some impact on her parenting”, “I do not believe her illness interferes with her ability to be a good parent.”  Dr F said that he has known the mother now for seven years and that in his view the mother “has the capacity to provide a loving caring and nurturing environment for her son”.  He said that her attentiveness to her “mental health issues”, and her willingness to seek treatment and advice on parenting “reflect well on her capacity as a parent rather than suggesting any deficit or particular vulnerability.” 

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

1. In mid 2006, the child was diagnosed with ADHD (Attention Deficit Hyperactivity Disorder).  He has had the benefit of input into his diagnosis and treatment by Mr O, child psychologist, Dr R, paediatrician, Dr W, paediatrician and others.  In particular, since the child was placed with the father in August 2008, he has been under the care of Dr D, who provided two reports dated 26 January 2009 and 14 October 2009 and gave oral evidence.  Dr D’s qualifications include MBBS and a Masters Degree in Mental Health.  As previously mentioned, she is employed at the Child and Youth Mental Health Service.  Dr D, an impressive witness, recorded in her second report that the child at times was “reluctant” to talk about his situation “because it did distress him to think about it” but that at other times he “was able to articulate the reasons for his distress” and that a number of times he stated that he “didn’t want to have to choose between his parents and that he wanted to have contact with both of them”.  Dr D said that “he didn’t want to have to choose one over the other”. 

2. In her first report, Dr D had observed that “there are limitations to what counselling can provide while custody and access arrangements remain in dispute, particularly given the acrimonious nature of the parental conflict.”  Dr D said that when the child first attended at the clinic on 12 September 2008, with the father, the child had been on Ritalin for about two years and that the father requested “a second opinion” as to whether the child needed to stay on the medication. 

3. Dr D said that in order to come to a decision about the medication she reviewed many documents, including, it would appear, a psychological assessment by Mr O and reports by Dr R and Dr W.  Dr D said that, after due consideration, she recommended that the child should remain on the medication, that the father agreed to this and that to her knowledge he has complied fully with administration of the medication. 

4. In her oral evidence, Dr D said that when the child recommenced seeing the mother in July 2009, the child said that he wanted to see the mother again, although at times he became distressed “when he saw the mother distressed”.  Dr D said however that the child had said that he did not want to see Mr RG and that he was “scared of him”, describing an incident when Mr RG had his hands on the child’s neck.  She said that the child had had nightmares about that, in anticipation of seeing Mr RG again, “but the nightmares have stopped now.” Dr D explained that since recommencement of the child’s time with the mother she had seen the child twice, the first time on 28 August 2009 and the second time on 9 October 2009, shortly before the trial.  Dr D said that at the appointment on 28 August 2009 the mother had told the child that she would take him to a park and that Mr RG would not be there, but that Mr RG was there and the child was frightened, because Mr RG was there.  She said however that at the appointment on 9 October 2009 the child did not express any similar concerns and indeed did not mention Mr RG. 

5. In this context, it needs to be explained that the child had alleged that Mr RG previously had tried to “choke” him. Mr RG, in his oral evidence, denied this, but said that there had been one occasion on which the child had been displaying behavioural difficulties and that in order to restrain the child and protect him from harming himself he had taken the child by both of his wrists and crossed the child’s arms over his chest, the child at that time being on a bed.  Mr RG denied that in that exercise he had placed pressure on the child’s arms or chest so as to cause any shortness of breath or a feeling in the child of being choked.  Nonetheless, as I have mentioned previously, the child is wary of Mr RG, and there is no reason to doubt that the child’s fear of him expressed to Dr D is a genuine fear. 

6. Dr D reiterated in her oral evidence that the child had said to her that he did not want to have to choose one parent over the other, explaining that the child had said that he “would lose.”

7. In her second report, Dr D said that the father had been “pro-active” in requesting assessments that would be helpful for the child, and that the father had been “diligent” in ensuring that the child attended his appointments with her. 

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. These matters have been sufficiently canvassed.

Family violence involving the child or a member of the child’s family or family violence order

1. I have referred already to the mother’s Notice of Abuse or Family Violence filed on 29 January 2009.  The allegations in the mother’s notice concerning family violence are numerous.  In my view it is not necessary to make findings in relation to the mother’s allegations of violence to her by the father.  Their relationship is long in the past. 

2. There is a history of domestic violence litigation, at the mother’s instigation, comprising three temporary protection orders in early 2006, followed by a protection order made in September 2006, two further temporary protection orders in 2007, and a conviction of the father in October 2007 for breach of a protection order in relation to text messages which he sent to the mother: see ex 9. As at April 2008, all orders had expired.  The father’s breach of order is referred to in his criminal record, ex 1, p1, which refers to two incidents, one in 1993 relating to a charge of behaving in an indecent manner, and one of breach of a protection order in 2007, in respect of both of which charges no conviction was recorded. 

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

1. There have been three sets of Court proceedings concerning the child, including the present proceedings. 

2. On 21 February 2006, the proceedings resulted in final consent orders for the child to live with the mother and spend alternate weekends and half school holidays with the father.  Throughout 2006, however, there were numerous Court proceedings, detailed in the chronology prepared by the independent children’s lawyer and filed on 15 October 2009, to which I would refer without setting out. 

3. On 8 May 2007, in new proceedings, further final orders were made, also by consent, for the child to live with the mother and spend time with the father on alternate weekends and half of the school holidays. 

4. As mentioned earlier, the current proceedings were commenced by the father, shortly after the mother placed the child with him, for reasons already sufficiently canvassed.

5. The independent children’s lawyer’s submissions included reference to an emailed proposal by the mother to the father on 18 August 2008 that the child live with the father and spend no time with the mother, and the observation that, save for the commencement of these proceedings by the father I should infer that it was not the intention of the mother to institute any proceedings to alter the arrangement she instigated by which the child live with the father and spend no time with the mother.  The inference is available, but not one which I will make, as the mother may well have been motivated to institute further proceedings.  It is more relevant I think to observe that the mother has participated in these proceedings in a meaningful way, which has resulted in the circumstance that between July 2009 and the time of the trial there had been achieved successful reintroduction of the child to the mother, and successful and beneficial time for the child with the mother.

6. However, it is plain that there cannot be new proceedings concerning the child each year, so that certainly it is preferable to make the order that would be least likely to lead to other proceedings in relation to the child. 

7. In particular, there is clear evidence that the child does not wish to be interviewed further in relation to his parents’ conflict about him, and does not wish to express views about his parents or a choice of living with one rather than the other, but wishes to have a relationship with both, if possible, without further parental conflict involving him.

1. I have referred already to Mr P’s observation, at par 47 of his report, that the priority in this matter is to stop the “cyclical nature” of the dispute between the parties.   

2. Thus, for the child’s sake, this is an imperative. 

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

1. It is necessary to 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 has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with and communicate with the child; and has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the child; and  spending time with and communicating with the child; and has fulfilled or failed to fulfil the parental obligation to maintain the child.

2. It is not necessary to revisit the evidence.  These matters, to the extent relevant, have been sufficiently canvassed.

3. As I have mentioned previously, the matter of child support was not the subject of focus at the trial and matters relating to it were not litigated.  I have referred already to the mother’s written submissions (pars 8-12) seeking orders relating to child support.  It is relevant to mention that the mother’s proposed orders in relation to child support did not carry criticism of the father in relation to his child support obligations, but rather were couched as possible prospective orders. 

Discussion and conclusions

Parental responsibility

1. The presumption in s61DA of the Act does not apply, as there are reasonable grounds to believe that the father, in the past, has engaged in family violence: see ex 9.

2. However, that does not have the effect of precluding an independent determination that an order for equal shared parental responsibility is in the child’s best interests. 

3. Accordingly, in what follows, my deliberation of the matter has included independent consideration as to whether an order for equal shared parental responsibility is in the child’s best interests. 

4. The father proposed ultimately that he have sole parental responsibility including for the major long-term issues concerning the child, but that he consult with the mother before making decisions. 

5. The independent children’s lawyer supported the father’s proposal.

6. The mother proposed ultimately, in her written submissions, that there be an order for equal shared parental responsibility. 

7. In my view, the child should have the benefit of the views of both of his parents in relation to the major long-term issues concerning him. However, historically, the parties have been unable to agree matters relating to the child’s education and health, each of these having been the subject of specific disputes in past Court proceedings and, in the result, requiring specific orders.  Further, a difficult aspect of the case is that the parties’ entrenched conflict may have the effect that possibly, even after consultation, realistically they may be unable to make joint decisions concerning the major long-term issues in relation to the child. 

8. As mentioned already this plainly is a case in which 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.  The history of the matter indicates that an order for equal shared parental responsibility inevitably would lead to further proceedings concerning the child.  For example, the parties already are in a “deadlock” as to whether the child should attend the R State Primary School or the M College.  It is impossible for them to agree this.  Thus, even in the mother’s written submissions, she has continued to “push the case” for the child to attend the M College: see pars 30-31 of the mother’s written submissions.  The mother seems insistent upon this, even if it would require the child to spend 1½ hours on each school day in a motor vehicle at least in each alternate week if her case should succeed that the child live with the parties on the equal time week about basis during school terms. 

9. This example, I think, of deadlock as to one of the major long-term issues has effect that an order for equal shared parental responsibility is not in the child’s best interests, as such order would be likely to lead to the institution of further proceedings concerning the child. 

10. I have not overlooked, in this regard, that in the current proceedings the parties have reached agreement as to two matters in issue, namely concerning the child’s passport and overseas travel, and changeover arrangements: see the annexure to the record of proceedings, reflected in the orders which I propose to make in relation to these two aspects of the matter. 

11. However, there have already been two sets of final consent orders concerning the child, in 2006, and 2007, which did not prevent the current proceedings.  Thus, I am not encouraged to think that the parties’ ability to consent on some occasions in respect of some matters has effect that in the future they may be likely to agree long-term issues concerning the child, particularly having regard to the current deadlock as to a major long-term issue, which I have mentioned. 

12. In all of the circumstances, I favour the view that the order sought by the father and supported the independent children’s lawyer is the order in relation to parental responsibility which is in the child’s best interests. 

13. In this regard, in having to choose one parent over the other, and in choosing the father, I would refer to Dr D’s observations as to the father’s pro-activity in relation to seeking assistance for the child soon after the child came to live with the father; to Mr P’s observation (family report, par 59) that Dr D, it appeared to Mr P, has a good rapport with the child and “there might be an opportunity for her to use the sessions as a way of re-establishing [the child’s] relationship with his mother”; and that the father, as Dr D observed, has ensured that the child attends all of his appointments with her at the Clinic which, I would observe in passing, is near R and a considerable distance from the mother’s home.  It is plain that the child has an established and beneficial counselling relationship with Dr D, which it is in the child’s best interests to be continued.  Indeed, my impression as the trial judge is that the father’s prompt engagement of Dr D, as an aspect of his parental responsibility for the child, has been significant not only in relation to the child’s emotional stability, despite his parents’ entrenched conflict, but has been of significant assistance also in monitoring the child’s diagnosed Attention Deficit Hyperactivity Disorder and assisting him in this regard.  Thus, in all of the circumstances, an order that the father have sole parental responsibility will ensure that the child continue to have this benefit, without parental argument about it. 

14. I propose however to make specific provision as to the consultation process, namely, that the father before making any decision in relation to the major long-term issues advise the mother in writing of the decision intended to be made; seek the mother’s written response in relation to it; consider, by reference to the child’s best interests, any response by the mother; and advise the mother in writing as soon as reasonably practicable of his decision.  In my view, this mechanism will ensure that the father engages in meaningful rather than peremptory consultation with the mother, and will ensure that the child will have the benefit of the views of both of his parents in relation to the father’s decisions.

The child’s living arrangements

1. Whilst there is not to be an order for equal shared parental responsibility, and I am not thus obliged by the statute, in particular s65DAA, to consider whether an equal time order is in the child’s best interests and reasonably practicable, I am obliged to do so nonetheless having regard to the mother’s proposal for an equal time order and accordingly I will consider whether such order is in the child’s best interests and reasonably practicable.

2. It is common ground that the child will spend half of his school holidays with each party. 

3. The competing proposals thus, which I must determine, relate to the child’s school terms.  They are:

   ·an equal time week about order as proposed by the mother;

   ·the child live with the father and spend time with the mother on alternate weekends from 9.30am on Saturday until 4.00pm on Sunday, but with provision for extension of that time commencing after school on Friday if the mother should notify her availability for such, as proposed by the father; or

   ·the child live with the father and spend time with the mother on alternate weekends from after school on Friday until before school on Monday as proposed by the independent children’s lawyer.  

4. In Korban & Korban [2009] FamCAFC 143, the Full Court explained, in the context of s65DAA, that the mandate to “consider” an equal time order, in the circumstances arising by operation of that provision, meant to assess whether equal time is in a child’s best interests by weighing factors both positive and negative: [85]; but that the enquiry is a “positive one”, in order “to ascertain whether equal time is in a child’s best interests: [86]. Although, in this particular case, s65DAA is not invoked, because I will not be making an order for equal shared parental responsibility, there is no reason not to apply the same test in relation to the mother’s proposal for equal time, namely, to assess whether equal time is in the child’s best interests by weighing factors both positive and negative in that regard.

5. However, as there will not be an order for equal shared parental responsibility, there is no statutory mandate to consider first whether an equal time order is in the child’s best interests and reasonably practicable, and if it is not, then to consider whether a substantial and significant time order is in the child’s best interests and reasonably practicable, but rather to consider the parties’ and the independent children’s lawyer’s respective proposals in the overall context of weighing the positive and negative factors relating to each to assess which is in the child’s best interests. 

6. Similarly, as there will not be an order for equal shared parental responsibility, there is no statutory mandate to consider reasonable practicability as a separate step, as opposed to part of the best interests consideration.  However, in relation to the parties’ and the independent children’s lawyer’s respective proposals I will do so. 

Child’s best interests

1. A significant factor in the case is that the child has become embroiled in the parents conflict about him, which Mr P said has become “cyclical”, and as “the priority” must stop.  There is other evidence that the child does not want to be interviewed anymore in relation to Court proceedings and that already, at the tender age of 10 years, he is under the care of Dr D as his counsellor.  Mr P said that in order to achieve cessation of the “cyclical” nature of the parties’ dispute about the child he needs to be “disentangled from the emotional mess that his parents have placed him in” (Mr P’s report, par 47), and that in order to achieve this the child “needs to live with the parent deemed by the court to be the parent most capable of immediately providing him with a sense of security, stability and consistency” (Mr P’s report, also at par 47). 

2. I have observed already, in this context, that on the evidence the child has “security, stability and consistency” in the father’s home, which is a very positive factor in favour of the child continuing to live with the father.

3. A very significant factor also is that the child already, at 10 years, has been the subject of significant household change, in particular, in August 2008, a significant change from the mother’s household to the father’s household.  It is plain, on the evidence, that at the time of the trial the mother was about to marry Mr RG, and that the child is “wary” of Mr RG.  Further, a change now to equal time in each household is not likely to “disentangle” the child from “the emotional mess his parents have placed him in”, but to put him back squarely into the parents’ “cyclical” conflict.

4. A very significant factor also is that the child is attached to both parents and wants to have a meaningful relationship with each and to be able to spend time with each.  However, the geographical distance between the parties’ homes, and the necessity for the child to attend one school has effect that it is unlikely that the child spending equal time week about with each parent during school terms is in the child’s best interests.  There is no suggestion on the material that the child will not be able to have a meaningful relationship with each parent if an equal time order for his school terms is not made. 

5. A significant factor is that Mr P said, at par 47 of his report, that in his view “on the face of it” the mother is the parent most likely to promote a relationship between the child and the other parent, however, Mr P, properly, put this in the context of conundrum that the mother has “clearly indicated she is not prepared to have [the child] live with her unless he does not spend time with his father”, which was the mother’s view at the time of interview with Mr P.  I have referred already to the circumstance that, since Mr P’s report, which is dated 24 December 2008, between July 2009 and the time of the trial the father has ensured that the child has spent time with the mother and thus plainly demonstrated his ability to promote a relationship between the child and the mother.  In my view, despite Mr P’s observation as at December 2008, which evaluation in any event he said was “complex”, time since then has told a different story, reflected, as I have said, in the father having ensured time with the mother between July 2009 and the time of the trial.  I have considered the mother’s view as to this, namely that in her belief the father has only done this “because of the pending Court proceedings” and that, once concluded, he is unlikely to continue to facilitate and encourage the relationship between the child and her.  However, in my view, having assessed the evidence, and observed the father at the trial, such cynicism is unfounded.  Conversely, the tenor of the mother’s evidence at the trial, despite her subsequent written submissions, leave me with little confidence as to her ability to promote a relationship between the child and the father.  In particular, I would refer to Mr P’s opinion, referred to earlier, that each party is seeing the present difficulty through his and her own “lens”, or view, and that in particular the mother, by continued reference to past events is “recalling the father through a memory lens as a spouse rather than a co-parent now”.  In short, as I understand Mr P’s evidence, the mother is unable to see the father in a positive light, and sees him from the perspective of her own past experiences with him, or her “memory lens”.  If the mother cannot change that, it is likely to continue to inform her current and prospective view of the father as a parent to the child. 

6. Mr P did not have the opportunity to consider the mother’s proposal in her written submissions as to an equal time order on the week about basis during school terms, and his expressed views thus are predicated upon the circumstance of the mother’s proposals which then obtained that the child would live with one parent or the other.  However, I have been able to make independent observations based on the evidence adduced at the trial, in relation to the mother’s new proposal.   

7. A very significant aspect of the matter is the ability of the child’s parents to attend to his emotional needs. I have mentioned already Dr D’s observations as to the father’s prompt engagement of her and other positive parenting aspects of him observed by her. 

8. It is a very significant factor also, for reasons already explained, that there not be further proceedings concerning the child. 

9. On balance, having regard to all of the evidence, the submissions, and the statutory matters which I am required to consider, in my view the child’s best interests would not be served by an equal time order as proposed by the mother, and would be served by accepting the independent children’s lawyer’s proposal so that the child live with the father and spend alternate weekends with the mother during school terms from after school on Friday to before school on Monday.  There are three matters, in particular, which persuade me of this.  The first is that the child should live with the parent most able to offer stability.  On all of the evidence, presently the child has security, stability, and consistency, as I have previously observed, living with the father.  The second is that in my view such is the order least likely to lead to further proceedings.  The third is that it would represent the least change for the child, and the least prospect of being put back into the centre of his parents’ “cyclical” conflict about him.  I have taken into account all other matters, in particular Mr P’s views.  However, in my observation it is the father who since July 2009 has proven his ability to promote that the child have a relationship with the mother and his ability to ensure that the child spends time with her. 

10. As to choosing the independent children’s lawyer’s proposal as being in the child’s best interests, instead of the father’s proposal, both providing for alternate weekend time, in my view the independent children’s lawyer’s proposal is preferable for three reasons, with effect that the father’s proposal in my view is not in the child’s best interests.  First, it allows three nights with the mother, rather than one or two, which will maximise the child’s time with the mother, given the unsuitability of an equal time order (as I have determined), and given the constraints of geographical distance.  Secondly, although I appreciate that the independent children’s lawyer’s proposal has the effect that the child will have to travel from the mother’s home to his school at R on a Monday morning, which is a considerable distance, it is only one school morning per fortnight that such will occur.  Thirdly, I appreciate that since July 2009 the child’s time with the mother largely has been 9.30am Saturday until 4.00pm Sunday.  However, if the mother should conclude that the extended time is too much for the child, or for her, the orders which I will make will allow the parties the ability to agree that the time should conclude at 4.00pm Sunday. 

Reasonable practicability

1. I turn now to consider reasonable practicability as a separate step. 

2. Having regard to the anticipated reasons for judgment in MRR and GR [2009] HCATrans 316, 3 December 2009, it is prudent to have regard to the types of matters listed in s65DAA(5), as indicative of matters relevant to that consideration, and also to the matters in T & N [2001] FMCAfam 222 and H & H (2003) FLC 93-168: see Biss & Biss [2009] FamCA 1234 at [218], [228].

3. It is the case however that most of these matters have been the subject of earlier observation.  In short, I have referred to the distance between the parties’ homes.  The parties’ conflicted history indicates that it is not likely that they have the capacity to implement an equal time arrangement during school terms.  They have little ability to communicate with each other or to resolve difficulties that might arise.  The impact on the child of an equal time arrangement is likely to further embroil him in his parents’ conflict rather than to disentangle him from it.  Thus, these all come in as negative factors weighing against reasonable practicability of the equal time order proposed by the mother.  As to the T & N factors, similarly all those relevant have been the subject of earlier observation, with most coming in as negative factors thus weighing against reasonable practicability of the equal time order proposed by the mother.

1. In contrast, by reference to the same factors, both the independent children’s lawyer’s proposal and the father’s proposal are reasonably practicable.

Conclusion

1. I have concluded that the independent children’s lawyer’s proposal is in the child’s best interests and reasonably practicable, the mother’s proposal is not in the child’s best interests and not reasonably practicable and the father’s proposal is reasonably practicable but not in the child’s best interests.   

2. I have considered, as often arises when a child lives with one parent and spends alternate weekends with the other parent, whether additional time might be spent in the “off” week, midweek after school or even overnight.  However, in this case geographical distance and travelling time preclude that such an order would be in the child’s best interests.  However, the order which I will make will be framed to allow the parties to agree other times, so there will be scope for the child to spend more time with the mother if that can be arranged and agreed not only during the child’s school terms but also during the school holiday periods. 

Inability

1. It was put during argument that it would be in the child’s best interests for there to be an order that if the mother proposes at any time that the child not spend time with her as set out in the orders she must notify the father as soon as practicable.  I accept this submission and will make that order.    

The child’s school

1. I have mentioned that there exists a deadlock between the parties as to the child’s school for 2010 and beyond for the completion of his primary school years. 

2. The mother’s written submissions, as said, have continued to “push the case” for the child to attend the M College. 

3. As the child is to live predominately with the father, plainly it is in his best interests that he continue to attend the R State Primary School for the duration of his primary school years, and I will so order. 

4. I have referred already, in this regard, to the distance factor in relation to the father’s home and the location of the M College west of Brisbane, which having regard to the father’s employment and other matters plainly will not be a practicable routine for the child nor one in his best interests. 

Passport and overseas travel

1. The parties, as I have mentioned, have reached agreement as to these matters and I will make orders in terms of their agreement. 

Changeover

1. The parties, as I have mentioned, have reached agreement as to changeover, and I will make orders in terms of their agreement. 

Other matters

1. Otherwise, the orders which I propose to make are not controversial and are in the child’s best interests.  Most, if not all, are drawn from orders proposed by the parties or the independent children’s lawyer. 

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.

Associate:     

Date:              23 December 2009