Nettleton and Parish - [2009] FMCAfam 53

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NETTLETON & PARISH

[2009] FMCAfam 53

FAMILY LAW – Children – commencing school – existing arrangement not in child’s best interests – consideration of equal shared care.

Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA

H and H (2003) FLC 93-168

Applicant:

MR NETTLETON

Respondent:

MS PARISH

File Number:

DGC 2821 of 2008

Judgment of:

McGuire FM

Hearing date:

12 December 2008

Date of Last Submission:

12 December 2008

Delivered at:

Dandenong

Delivered on:

2 February 2009

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Carter

Solicitors for the Respondent:

McKenzie Allen Lawyers

ORDERS

That the applicant father and the respondent mother have equal shared parental responsibility for the child [X] born in 2003 ([X]).
That [X] live with the father as follows:
(a)During school terms:
(i)Each second weekend between the end of school on Thursday and the commencement of school on Monday (but extending to commencement of school on Tuesday in the event of a long weekend);
(ii)In the other week from after school on Thursday until the commencement of school on Friday.
(b)On a week-about basis during the Victorian gazetted summer school holidays with the father’s first period to commence on the first Monday of the holidays at 5:00pm and the changeovers to occur on each subsequent Monday at McDonald’s, [omitted] (or as otherwise agreed by the parties) at 5:00pm.
(c)For a period of seven days in each Victorian gazetted term school holiday being from 5:00pm on the Friday of commencement of school holidays until 5:00pm on the following Friday with changeovers to occur at McDonald’s, [omitted] (or otherwise as agreed between the parties).
(d)At such other times as agreed between the parties.
That [X] live with the mother at all other times.
That for the purposes of the child living with the father during school holiday periods then the periods set out in order 2(a) be suspended.
That the parent with whom [X] is living from time to time ensure that [X] attends all medical, speech pathology and extra-curricular appointments.
In the event that father’s day should fall during a time that [X] is living with the mother, then [X] shall spend time with the father from 4:00pm on the day prior to father’s day until the commencement of school on the Monday.
In the event that mother’s day should fall during a time that [X] is living with the father, then [X]’s time with the father shall end at 4:00pm on the day before mother’s day.
That regardless of [X]’s other arrangements pursuant to these orders, [X] shall spend time with the father from 2:00pm on 24 December until 3:00pm on 25 December in 2010 and in each alternate year thereafter and from 3:00pm on 25 December to 10:00am on 26 December in 2009 and in each alternate year thereafter.
That regardless of [X]’s other arrangements pursuant to these orders, [X] shall spend time with the mother from 2:00pm on 24 December until 3:00pm on 25 December in 2009 and in each alternate year thereafter, and from 3:00pm on 25 December until 10:00am on

26 December in 2010 and in each alternate year thereafter.
That [X] spend time with each of her parents on that parent’s birthday and, if not already in the care of that parent, for a period of not less than two hours as agreed between the parents and in default of agreement then from 5:00pm until 7:00pm.
In the event that [X] is not in the care of the father on her birthday then [X] shall spend time with the father on that day [date omitted] as follows:
(a)
In 2009 and in each alternate year thereafter from 5:00pm on

[date omitted] until 9:00am or commencement of school the following day; and
(b)
In 2010 and in each alternate year thereafter, from 5:00pm on

[date omitted] to 9:00am or commencement of school the following day.
In the event that [X] is not the care of the mother on her birthday then [X] shall spend time with the mother on her birthday [date omitted] as follows:
(a)
In 2009 and in each alternate year thereafter from 5:00pm on

[date omitted] until 9:00am or commencement of school the following day; and
(b)
In 2010 and in each alternate year thereafter from 5:00pm on

[date omitted] to 9:00am or commencement of school the following day.
That for the purposes of these orders, all changeovers for [X] not involving changeovers at school shall occur at McDonald’s, [omitted], unless otherwise agreed in writing between the parties.
Each of the parties provide to the other at all times their respective residential and postal addresses and their electronic contact details, including telephone numbers, both mobile and landline, work landline and email address and inform the other of any changes of these details within two days of such change.
The mother and the father each keep the other informed of any major illness or accident suffered by [X] when in that parent’s care and advise the other as soon as practicable of each treating doctor or similar professional attended by the child.
Each parent request and authorise the principal of [X]’s school from time to time for copies of the following to be sent to both parents: school reports, school notices, and order forms for photographs.
Both parents be at liberty to attend at [X]’s school for events, meetings, activities or functions routinely attended by parents.
The mother and the father attend as soon as practicable a post-separation parenting course at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court, and provide an appropriate certificate of completion of the said program to the other party, with the parties to pay equally for the cost of the program.

AND THE COURT NOTES

A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGC 2821 of 2008

MR NETTLETON

Applicant

And

MS PARISH

Respondent

REASONS FOR JUDGMENT

Background

This is an application by the father Mr Nettleton. That application seeks orders in respect of one child, namely [X] born in 2003 (aged

5 years). The application amended on 8 December 2008 seeks the following:
a)equal shared parental responsibility;
b)shared care of [X] on a week-about basis with changeovers to occur on Mondays at [X]’s school or at McDonald’s, [omitted] if not a school day;
c)provision for special days.
The mother is Ms Parish. She opposes the application. The orders she seeks are the following:
a)equal shared parental responsibility;
b)that [X] live with her;
c)
that [X] spend time with and communicate with the father

as follows:
i)from the conclusion of school Thursday to the commencement of school Monday, or in the event Monday is a non-school day, then to the commencement of school Tuesday, each alternate weekend;
ii)during the long summer holidays in 2008/2009, from 5:30pm each alternate Thursday to 5:30pm Monday;
iii)during the school term holidays in 2009, for five consecutive nights at times agreed and failing agreement, from 5:30pm on the first Saturday to 5:30pm on the following Thursday;
iv)during the summer holidays in 2009/2010, for two periods of five consecutive nights, at times agreed;
v)during the school term holidays in 2010, for six consecutive nights at times and failing agreement, from 5:30pm on the first Saturday to 5:30pm on the following Friday;
vi)
during the summer holidays in 2010/2011 for two periods

of six consecutive nights at times agreed;
vii)from 2011, for one half of each term and long summer holiday period at times agreed, and failing agreement, for the first half in even numbered years and the second half in odd numbered years;
viii)at such other or further times as may be agreed between the parties;
d)provision for special days.
The parties lived together for only about two years until separation

in April 2003, when [X] was a newly born infant.
The mother has re-partnered. The father is not currently in a relationship.
The mother has three children older than [X] including a son [Y], aged 13 years, who lives with her.
The father has young twins. They live with their mother in northern Victoria. The father spends time with them.
The current arrangements for [X] stem from orders made by consent by the parties in June 2005. At that stage [X] was only two years old. That arrangement is over a four week cycle as follows:
·with father – three nights
·with mother – one night
·with father – two nights
·with mother – eight nights
·with father – three nights
·with mother – one night
·with father – three nights
·with mother – seven nights.
On my calculations, this equates to [X] currently spending 11 nights out of each 28 day cycle with the father being five nights in one fortnight and six nights in the following fortnight.
Both parties agree that there has been some flexibility in [X]’s arrangements albeit with a lack of communication seemingly having developed in 2008.
The father claims, and it was not disputed, to have spent about 160, 160 and 180 nights with [X] over each of the last three years. This would mean that [X] has been spending more time with him than was allocated in the orders from 2005.
[X] has some health issues involving a heart complaint and also attends speech pathology.
Despite the previous good communication and flexibility between the parties, it is clear that both the father and the mother seek a change

to the current orders. They both cite the number of changeovers for [X] within each month to be contrary to her interests and particularly given that she will be commencing primary school in 2009.
The father works part time and casually variously as a [various occupations omitted].. The mother is employed as a [healthcare professional]. She works three shifts being a morning shift from 7am until 1pm, an afternoon shift from 1pm until 9:30pm, and a night shift from 9pm until 7:30am.
The mother works eight shifts per fortnight, with an average of only three night shifts per month. She has some flexibility of choice as to her shifts and her rosters are known some months in advance.
It is clear that both parties have historically used day carers and including overnight carers for [X].

Law – children’s matters

Proceedings such as these seeking parenting orders are determined with reference to Part VII of the Family Law Act 1975 (“the Act”).
Section 60CA of the Act states:
in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60B of the Act sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are

to ensure that the best interests of the child are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting
to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development
[1] See s.60B(1) of the Act.
of their children.[1]
The principles underlying those objects are that, except when it is considered to be contrary to the child’s best interests:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.[2]
[2] See s.60B(2) of the Act.
Section 60CC of the Act sets out guidelines or considerations for the court in determining what is ultimately in the child’s best interests. That section is broken into “primary considerations”[3] and “additional considerations”.[4]
[3] Section 60CC(1),(2).
[4] Section 60CC(3).
The two primary considerations as set out in s.60CC(2) are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is also obliged to take account of the additional considerations set out in s.60CC(3) so far as they are relevant, and then assess each of these factors against the proposals of the parties and in light of the requirement to make a determination which is in [X]’s best interests.
Both parties seek an order that they are to have equal shared parental responsibility. Therefore, the Court must:
a)Consider whether [X] spending equal time with each of the parents would be in her best interests;
b)Consider whether [X] spending equal time with each of the parents is reasonably practicable; and
c)If it is, consider making an order to provide for [X] to spend equal time with each of her parents.[5]
[5] See s.65DAA(1) of the Act.
This is of course the order sought by the applicant father.
However, if, after providing for equal shared parental responsibility, this Court does not consider it appropriate for [X] to spend equal time with each of her parents, then the Court must:
a)Consider whether [X] spending substantial and significant time with each of her parents would be in her best interests;
b)Consider whether [X] spending substantial and significant time with each of her parents is reasonably practicable;
c)If is it, consider making an order to provide for [X] to spend substantial and significant time with each of her parents.[6]
[6] See s.65DAA(2) of the Act.
“Substantial and significant time” is defined as:
·days that fall on weekends and holidays; and
·days that do not fall on weekends or holidays; and
·days that allow the parent to be involved in the child’s daily routine, together with occasions and events that are of particular significance to the child; and
·time that the child spends with the parent allowing the child to be involved in occasions and events that are of special significance to the parent.[7]
[7] See s.65DAA(3) of the Act.
Under the spectre of [X]’s best interests I must consider whether the proposals of the parties are “reasonably practicable”. The Act provides that in such a consideration I am to have regard to the following:
a)how far apart the parents live from each other; and
b)the parents’ current and future capacity to implement
an arrangement for [X] spending equal time, or substantial and significant time, with each of them; and
c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing such an arrangement; and
d)the impact of any such arrangement on [X]; and
e)such other matters as the court considers relevant.[8]
[8] See s.65DAA(5) of the Act.
The courts have historically and regularly had to consider applications for equal shared time or for what is now known as “substantial and significant time”. This was the case even prior to the amendments

to the Act made in 2006.
Her Honour Federal Magistrate Ryan (as she then was) dealt with this issue in H and H.[9] Her Honour was dealing with an application for equal time. At paragraphs 47 and 48 of her Honour’s judgment there
[9] (2003) FLC 93-168.

is set out a very helpful summary of the considerations. Those considerations are equally relevant to an application for substantial

or significant time. Her Honour says at paragraph 47:
Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child’s welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
As her Honour says at paragraph 48 of H and H, the list

of considerations is not exhaustive. Further, it is not intended to usurp the pivotal role of the legislation, in our case s.60CC(2),(3) and (4).

Parties’ proposals

The father seeks equal time for [X] on a week-about basis.

I understand his proposal to be based on the following:
·His proposal addresses the existing difficulty with too many changeovers for [X].
·“It is time for a change” in that [X] is moving on to full-time school.
·
That he can work his employment around his care of [X].

In fact, he says that a week-about arrangement for [X] would assist him in attaining employment. I take him to mean that he would attempt to confine his employment to the weeks that [X] is with her mother and be substantially available for [X] in out of school hours when she is with him.
·That his proposal tends to the difficulties in communication between he and Ms Parish.
·The proposal has certainty. It provides for changeovers at school during school terms.
·His proposal would allow him to participate fully in [X]’s school and extra-curricular activities as well as her medical needs.
·That [X] has, as a result of the orders on foot since 2005, spent lengthy periods of time with him and has developed a close and loving relationship with him. His proposal is therefore a natural progression and development of this meaningful relationship.

The mother Ms Parish is opposed to a week-about arrangement.

She says:
·[X] is young and misses her mother and siblings if away from them for more than three days.
·[X] does not always want to go to her father. She displays some symptoms of separation anxiety, as, for example, bed wetting.
·
[X] should have “quality” time with her father, and that

the issue for the Court is not simply one of “quantity”.
·That there are concerns in the standard of care afforded [X] by the father. In particular, the mother is concerned that Mr Nettleton has not been able to prioritise [X] over his work arrangements and has left [X] overnight with an unsuitable carer; Ms Parish says that she is available for [X] and has been the parent who has primarily been responsible for [X]’s extra-curricular and medical needs.
·She says that the father’s proposal means that [X] “misses out” on some activities with her mother’s family.
·She says her proposal alleviates the current difficulties with changeovers.

Evidence

Both parties relied on their affidavits.
The mother was represented by counsel at the hearing. The father appeared on his own behalf.
Both parties were cross-examined.
Neither party adduced any further evidence excepting some documents in respect of [X]’s attendance for swimming lessons and at the speech pathologist were tendered into evidence.
There was a most helpful report from Ms Joy Slattery, psychologist, and helpful despite the fact that Ms Slattery apparently misunderstood the current arrangements for [X]. She gave evidence and was cross-examined. In summary, she is of the view that:
·There should not be a decrease or significant decrease in [X]’s overall time with her father.
·
She recognised the importance of [X]’s first year of primary school and her consequent need to minimise further changes

in her life.
·Should the Court find substance to some of the mother’s concerns regarding the standard of care for [X] whilst with her father, then this might in turn raise questions as to the insight of Mr Nettleton in respect of his daughter’s needs.
·She is in agreement with the parties that there is a need to simplify the existing regime.
Ms Slattery recommended a fortnightly regime during school terms for [X] with the father being: in the first week from Monday to Thursday and in the second week from Friday to Monday
However, Ms Slattery accepted that such an arrangement was not practical in that it would see [X] returning to her mother on the Monday of the second period and effectively going back to her father the same day.
Nevertheless, Ms Slattery maintained:
a)[X] is comfortable with both parents;
b)The need to simplify the existing regime;
c)That it was not in [X]’s best interests to significantly reduce her time with her father.
Interestingly, however, Ms Slattery did not support the mother’s proposal which would see [X] away from her father for periods

of about ten days and nights at a time.
Ms Slattery cited [X]’s age and implied that periods of one week

for a child of such tender years away from a primary carer would not be in the child’s best interests. Ms Slattery in her evidence referred to the numerous studies by experts on this particular subject.
It is clear though that Ms Slattery was equally of the view that such

an arrangement of week-about for [X] might be appropriate and workable when she became older.
On this point the father, to his credit, during his cross-examination of the mother and his final submissions, appeared to concede that a staged move for [X] towards equal shared care might be appropriate.

Considerations

Section 60CC(2) – the benefit to [X] of having a meaningful relationship with both of her parents

It is clear that [X] has had and continues to have a meaningful relationship with both her mother and her father.
In the family report at paragraph 37, Ms Slattery says:
From my observations [X] appeared to have warm and close relationships with both Mr Nettleton and Ms Parish. No concerns arose about the nature of these relationships.
The proposals of both parties would in my view undoubtedly maintain that existing meaningful relationship for [X] with both her mother and her father. It is opportune however to point out that it is [X]’s best interests that are at issue here, rather than those of the parties

or any other person. Further, the adjective “meaningful” should not be confused with or equated to “optimum” when speaking of the relative nature of a relationship between child and father.

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

The father has left [X] in the overnight care of his own sister. That lady unfortunately has a diagnosis of schizophrenia. The Court did not have the benefit of an affidavit from the sister although it is clear from the father’s evidence that he would anticipate enlisting her assistance

in the future. As such, there is no evidence of her medical history and, in particular, of her compliance history with medication. This is of some concern.
Of further concern, however, is the father’s attitude. As to why he did not advise the mother that [X] was being left in the care of his sister, his response was “it is none of her business. I do not have to tell her who looks after [X] when [X] is in my care”.
Without the benefit of the medical history and relying only on the diagnosis, it is understandable that the mother may have concerns

in this regard. Of perhaps even greater concern and enlightening

for the Court is the father’s attitude and lack of insight into the requirements for the overnight care of a five year old child. Such attitude also speaks volumes as to the father’s current lack of ability

to communicate with the mother.

Section 60CC(3)(a) – any views expressed by [X] and any factors such as maturity or level of understanding that the Court thinks are relevant to the weight to be given to her views

[X] is only five years of age. There is no evidence of any direct expressions of her views as to with whom she should primarily live. This is not surprising as it is clear that she has a bonded, loving and beneficial relationship with both parents. In any event, at her age, it is unlikely that she would be able to rationalise the competing proposals of her parents.

Section 60CC(3)(b) – the nature of the relationship of [X] with each of her parents and other persons

[X] has a good relationship with both parents. This has resulted undoubtedly from the orders of 2005. Credit should also be given

to the parties for their communicative and flexible arrangement

in respect of [X] before 2008. There is no doubt that such an attitude has benefited [X] in feeling able to develop her relationships with her parents.

Section 60CC(3)(c) – the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between [X] and the other parent

The evidence suggests that historically each party has facilitated and supported [X]’s relationship with the other.
Circumstances have, however, arisen in 2008 which have impacted

on the previous open and communicative relationship between the parties. The father complains of not receiving details of [X]’s roster for swimming lessons and her speech pathology appointments. Whilst I have some doubts as to the veracity of the father’s evidence in respect of these particular matters, it is clear that the ability of the parties

to encourage [X] in the eyes of each other has been affected by the downturn in their own relationship.
Nevertheless, it is obvious from the parties’ proposals, that they

do retain an understanding and appreciation of the need to encourage and facilitate [X]’s relationship with the other parent.

Section 60CC(3)(d) – the likely effect of any changes in [X]’s circumstances

Both parents seek a change to [X]’s existing circumstances. I agree that it is appropriate. There will necessarily be therefore some change for [X].
I also concur with Ms Slattery in that any changes in [X]’s circumstances should be positive in the sense that [X] will

be enduring a significant change in her life and lifestyle in any event due to her commencing school.
It is open for me to find from the evidence that, given the inevitability of a change for [X] from the 2005 orders, both of the parties may have been a little opportunistic in seeking the orders that currently suit each of them rather than focusing completely on [X]’s current best interests. Again, this is perhaps a manifestation of the breakdown

of their own formerly civil relationship. If I am correct in such

an assumption then it is a pity for [X] as her two parents have previously shown their ability to communicate and work together and these traits would minimise any effect for [X] on the inevitable changes in her lifestyle and routines.

Section 60CC(3)(e) – the practical difficulty and expense of the proposals

The parties live within 30 minutes of each other. There are no practical limitations on the proposals of either the father or the mother.

Section 60CC(3)(f) – the capacity of each of [X]’s parents to provide for her needs, including emotional and intellectual needs

By reason of their work commitments, both parties have historically used child carers. This has included [X] staying overnight with carers.
The previous communicative relationship between the mother and the father saw them using each other as “first option” should the person with responsibility for care of [X] at any given time have other commitments.
I have no concerns as to the father’s ability to attend to [X]’s general day to day needs. I do, however, harbour some concerns as to his attitude and hence his insight into the more specific needs of [X].

In this respect I had the benefit of seeing the father’s demeanour in the witness box. Whilst I have no doubt whatsoever as to the father’s love for his daughter, I do have some doubt as to his understanding and prioritising of her needs as she develops. This is most likely a product of the breakdown of the flexible relationship with Ms Parish. However, and without the benefit of that flexibility and communication,

Mr Nettleton must cope without the availability of [X]’s mother.

He has reacted by using his sister who suffers from schizophrenia

as a babysitter. The suggestion that it was “none of her business” for Ms Parish to be aware that her daughter was being cared for by

the father’s sister in the circumstances of that woman’s illness is naïve in the extreme.
The father tended to offload the blame on Ms Parish for his failure

to attend swimming lessons and speech pathology sessions. The evidence however did not support such claims.
The mother made much of the father’s work commitments and the consequent effect on his capacity to care for [X]. This was a rather odd argument given the mother’s own work commitments. In any event, the father made it clear that he was desirous of working

his employment around his time with [X]. Indeed, this was his rationale for seeking week-about. Whilst it is true that the father’s current work commitments are difficult to follow and involve many places of employment and self-employment, it is also the fact that his work is casual, part time and seasonal. My concern in respect of the father rests not so much with is capacity to care for [X] but with his understanding of the need to accept the responsibility for the care of

a five year old as a priority.
On the mother’s part, there are also some concerns. She would rely heavily on professional carers. When she has a morning shift, the mother would leave home with [X] prior to 6:30am. When she has an afternoon shift, she would collect [X] after 9:30pm. Her evidence was that for night shifts she might leave [X] overnight with the carer.
There was evidence from the mother that her new partner may assume some of these care responsibilities. However, the mother’s evidence indicated this to be only a “fallback” position and the Court did not have the benefit of an affidavit or evidence from that person.
In summary, therefore, and generally, I am of the view that both parents have a demonstrated capacity to care for [X] and that any concerns stem from the recent breakdown of trust in their own relationship. Both have work commitments out of the normal 9am to 5pm weekday routine. Both work at night. The evidence suggests that the care

of [X] has been left to professional carers for much of her life.

I comment only that it would be obvious to all that [X]’s best interests would be served by being with one or other of her parents,

if available, if the parent with responsibility for her care at a particular time was for work reasons unavailable.
To this end, both parties urged me to make an order for their attendance at a post-separation parenting course. I am of the view that this could only benefit the parties and consequently benefit [X].

Section 60CC(3)(i) – the attitude to [X], and the responsibilities of parenthood, demonstrated by each of the parents

This issue has substantially been dealt with above. I comment only that the attitude of the parents appears to reflect more on their own relationship than their respective relationships with their daughter. They should realise, however, that any such deterioration in their own relationship will inevitably impact on [X].

Section 60CC(3)(j) – any family violence involving [X] or a member of [X]’s family

There has been no manifest violence in respect of [X] or between the parties. However, Ms Parish claims abuse at the hands of Mr Nettleton

at changeovers. Given that this would inevitably be apparent to [X], it is inappropriate and unbecoming of a father who in most other ways shows himself to be a loving and considerate father. As Ms Slattery

in her report at paragraph 39 says:
The one concern is if Ms Parish’s claims have any basis about

Mr Nettleton abusing her at changeovers then this would be inappropriate and unacceptable behaviour and would cause [X] much anxiety and stress and must stop and may contribute to [X] feeling troubled. If Mr Nettleton has behaved in this way then it demonstrates immature behaviour and a complete lack of insight into [X]’s emotional wellbeing. If Mr Nettleton feels frustrated and angry towards Ms Parish about some issues (for example if Ms Parish is not providing Mr Nettleton with important information about [X] and her medical condition and allowing him to be involved in important areas of [X]’s life as he claims she is not) then there are other more appropriate ways of dealing with this.
I had the benefit of seeing and hearing both parties from the witness box. The mother had the disadvantage of being cross-examined by the father. She appeared unable to make eye contact and was, in my view, reticent in dealing directly with the father.
Mr Nettleton in his demeanour in Court was neither aggressive nor abusive.

Conclusions

I am mindful of the previous workable and flexible arrangement between the parties and it is hoped that this can be resumed with the assistance of post-separation counselling.
[X] is young. She is just five years of age. She is starting a new phase of her life in full time schooling.
[X] has had the benefit of spending blocks of time and quality

time with both her parents from a very young age. The development

of her good and beneficial relationship with each is obvious. This is to the credit of both parents, and they should be congratulated.
The current arrangement is not now a practical one. [X] needs more certainty, routine and stability in her life whilst still maintaining her important relationships.
Both the father and the mother need to be able to reconcile their work commitments with their care of [X].
A return to a flexible arrangement would benefit [X]. However, each of the parties seeks certainty in the orders. I intend to give them that certainty but a return of trust and communication between them will hopefully allow them to resume a degree of flexibility.
On balance, I am not of the view that a week-about regime as proposed by the father is in [X]’s best interests at this stage. I am mindful

of her age and her transition to school in 2009. That situation may well alter when she is older and more settled in her school life.
Nevertheless, I do not believe that the mother’s primary proposal which involves a ten day gap between [X] seeing her father is in [X]’s best interests either. Ms Slattery was unequivocal in her views that [X]’s time with her father should not be significantly reduced. After hearing the evidence, I agree with her.
Ms Slattery and the mother also were of the view that equal time

in school holidays was not currently appropriate. I disagree. The evidence is that [X] has spent periods, albeit not many, of at least seven days with her father. She might be young. However, she is not an infant. Her requirements and priorities differ between school and holiday time. Further, my concerns as to the father’s current ability

to prioritise [X]’s needs over his other commitments are not

so crucial during school time. [X] has been spending blocks of at least three days at a time with her father since she was two years

of age. I am of the view that she can and will cope with periods of seven consecutive days with her father during school holidays.

I propose to make orders accordingly.
As indicated I intend to make orders that the parties attend a post separation parenting course.
I intend to make orders accommodating [X] spending relevant special days with each of her parents.

I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of McGuire FM

Associate: Ann Creek

Date: 30 January 2009