Nielsen and McGuinn

FAMILY COURT OF AUSTRALIA

NIELSEN & MCGUINN

[2010] FamCA 670

FAMILY LAW – CHILDREN – Child related proceedings – relationship of the child with half siblings in two households – school to be attended by the child – time period in which equal time is commence – adjustment of the child to change – financial support – communication between the parents

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

APPLICANT:

Mr Nielsen

RESPONDENT:

Ms McGuinn

FILE NUMBER:

SYF

4592

2005

DATE DELIVERED:

29 July 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

6-7 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

RESPONDENT:

Mrs McGuinn appeared on her own behalf

Orders
NOTATION

The Court notes that on 15 January 2009 orders were made by consent in relation to the enrolment of the child, K, in the B School for Term 1, Year 3 in 2012 and for the child’s schooling otherwise until then and matters incidental thereto.

ORDERS

Apart from the order of 15 January 2009, so far is it relates to the schooling arrangements for K (“the child”), born … April 2004 and the payment of costs associated therewith and matters incidental thereto, all prior parenting orders are discharged.
The parties shall have shared parental responsibility for the child.
The child shall live with the mother and spend time with his father during school term time as follows:
(a)commencing the first Friday following the making of these Orders until 1 January 2011, the child shall spend time with the father as follows:
(i)commencing the first Friday following the making of these Orders and each alternate week thereafter from the cessation of school hours on Friday to the commencement of school hours on Monday
(ii)commencing on the second Wednesday following the making of these Orders and each alternate week thereafter from the cessation of school hours on Wednesday to the commencement of school on hours Friday
(b)commencing 1 January 2011 until 1 January 2012, the child shall during school term time spend time with the father as follows:
(i)commencing the first Thursday following 1 January 2011 and each alternate week thereafter from the cessation of school hours on Thursday to the commencement of school hours on Monday
(ii)commencing the second Monday following 1 January 2011 and each alternate week thereafter from the cessation of school hours on Tuesday to the commencement of school hours on Thursday
(c)commencing the first Monday following 1 February 2012 and thereafter during school term time each alternate week, the child shall spend time with the father from the cessation of school hours on Monday to the cessation of school hours on the following Monday and with the mother commencing the second Monday following 1 February 2012 and thereafter each alternate week from the cessation of school hours Monday to the cessation of school hours the following Monday.
From the date of these Orders and thereafter the child shall spend time with the father as follows:
(a)on Father’s Day each year from 9.00 am to 9.00 am the following day
(b)on the father’s birthday each year from 9.00 am to 9.00 am the following day
(c)during the first half of each school holiday period in each year ending in an even number and the second half of each school holiday period in each year ending in an odd number
(d)from 6.00 pm on 23 December to 6.00 pm on Boxing Day in each year ending in an even number and from 6.00 pm on Boxing Day to 9.00 am on 29 December in each year ending in an odd number
(e)
on … July each year, and in the event such day should fall on a school day, then from the cessation of school hours on that day to the commencement of school hours the following day and if on a

non-school day from 9.00 am that day until 9.00 am on the following day
(f)
on … June each year and in the event such day should fall on a school day then from the cessation of school hours on that day to the commencement of school hours the following day and if on a

non-school day from 9.00 am on that day until 9.00 am on the following day
(g)
on … August each year and in the event such day should fall on a school day then from the cessation of school hours on that day to the commencement of school hours the following day and if on a

non-school day from 9.00 am on that day until 9.00 am on the following day
(h)
on … October each year and in the event such day should fall on a school day then from the cessation of school hours on that day to the commencement of school hours the following day and if on a

non-school day from 9.00 am on that day until 9.00 am on the following day
(i)on the birthdate of any subsequent child born of either of the parties each year and in the event such day should fall on a school day then from the cessation of school hours on that day to the commencement of school hours the following day and if on a non-school day from 9.00 am on that day until 9.00 am on the following day
(j)such other times as the parties may mutually agree in writing.
From the date of these Orders and thereafter the child shall spend time with the mother:
(a)on Mother’s Day each year form 9.00 am to 9.00 am the following day
(b)on the mother’s birthday each year from 9.00 am to 9.00 am the following day
(c)during the second half of each school holiday period in each year ending in an even number and the first half of each school holiday period in each year ending in an odd number
(d)from 6.00 pm on Boxing Day to 9.00 am on 29 December in each year ending in an odd number and from 6.00 pm on 23 December to 6.00 pm on Boxing Day in each year ending in an even number
(e)
on … May each year and in the event such day should fall on a school day then from the cessation of school hours on that day to the commencement of school hours the following day and if on a

non-school day from 9.00 am on that day until 9.00 am the following day
(f)
on … March each year and in the event such day should fall on a school day then from the cessation of school hours on that day to the commencement of school hours the following day and if on a

non-school day from 9.00 am on that day until 9.00 am the following day.
The child shall spend time:
(a)with the mother on the child’s birthday in each year ending in an odd number from 9.00 am to 7.30 pm
(b)with the father on the child’s birthday in each year ending in an even number from 9.00 am to 7.30 pm
(c)The parties shall communicate with the child by telephone as agreed and failing agreement each day whilst the child is in the other parent’s care with the child to be made available for telephone communication with the other parent between 7.30 am and 8.00 am.
For the purposes of facilitating changeover of the child, the child shall be collected from school if changeover is to occur on a school day and from the residence of the other parent in the event of a non-school day by the person with whom the child is to spend time.
Neither party shall enrol the child in any extra curricular activities without the written agreement of the other party.
The parties provide each other with details of all organisations, schools and health workers with whom the child is involved and that these organisations and groups are provided with contact details for the other parent and an authority to provide that other parent with information in relation to the child’s consultation with them.
Each party notify the other of any serious illness or accident that the child may suffer as soon as is reasonably practicable.
The parties shall do all acts and things and sign all documents necessary to cause the child to obtain a current Passport noting such Passport shall be held as agreed between the parties and failing agreement lodged with the Family Court of Australia, Sydney Registry and access to the passport shall be granted to either party upon 28 days written notice being provided to the other party of that party’s intention to access the passport.
Each party keep the other informed of the child’s health and any health issues affecting the child whilst in his or her respective care.
Each party keep the other informed of any medical procedures or operations to be undertaken by the child prior to those procedures or operations being undertaken except in the case of an emergency with the party in whose care the child is in at that time to inform the other party as soon as is reasonably practicable.
Neither party incur medical expenses exceeding $50 on behalf of the child, save in the event of an urgent or emergency situation, without the other party’s agreement in writing.
The parties keep each other informed of the child’s progress at school as well as all parent/teacher nights and other school activities or extra-curricular activities to which the parents are invited.
The parties authorise the child’s school to provide to each of them copies of all school notices, information, newsletters and school reports directly to each of them.
Should either party wish to take the child on a holiday outside of the State of New South Wales then that party shall be at liberty to take the child on a holiday during his or her time with the child or for longer periods if agreed in writing between the parties and the travelling party shall provide to the other party:
(a)two weeks written notification of the proposed holiday and the whereabouts and duration of the holiday;
(b)contact details no later than two weeks prior to the commencement of the holiday;
(c)copies of the flight details and evidence of return ticket purchase; and
(d)the child shall be made available by telephone to communicate with the non travelling parent each second day between 8.30 am and 9.30 am in the time zone in which the child is in at the relevant time.
Pursuant to s65L of the Family Law Act 1975 (Cth) a Family Consultant as nominated by the Manager, Child Dispute Services of the Sydney Registry of this Court, give to any party to these Orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these Orders for a period of two years from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4592 of 2005

MR NIELSEN

Applicant

And

MS MCGUINN

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings for final parenting orders.
The application relied upon by the applicant father was filed in May 2009.
This case was remarkable not so much for what was in dispute ultimately at the hearing but rather what was in agreement and the narrowness of the dispute that did then exist.
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father was born in 1966 and is currently 44 years of age.
The mother was born in 1970 and is currently 40 years of age.
The parties commenced cohabitation in February 2003 and married in November 2003.
Of the marriage there was one child born namely K, born in April 2004 and now aged 6 years.
The parties separated on 17 August 2004 and the marriage was dissolved by decree made on 18 February 2006.
The parties entered into consent orders for property settlement and parenting orders on 8 December 2005.
The parenting orders then agreed to provided for the defined time that K was to spend with each party. The parties were to have joint responsibility in consultation with one another for making decisions for the long term care, welfare and development of the child.
The orders in 2005 provided for the mother to have sole responsibility for the day to day care, welfare and development of K when he was in her care and the father to have the like responsibility when the child was in his care.
The times the child was to spend with the father were set forth as defined times for 2006 which increased over a period to 2009.
Those orders were varied by further orders made in 2007.
In October 2007 the parties varied the parenting orders by agreement which resulted in the child spending five nights per fortnight with the father and seven day blocks in school holidays with the father.
In 2010 orders were made on an interim basis by consent which provided that the child spend five days per fortnight and half of his school holiday periods with the father.
Those orders also resolved a dispute on an interim basis which previously had occurred in relation to the place at which the child was to attend school. It was agreed between the parties that the child would be enrolled after a period of time in the B school in the eastern suburbs of Sydney.
Pending that enrolment it was further agreed that the child was to attend F Public School.
The father was to meet the costs of the attendance at B School.
On the hearing of the matter the father presented an amended order, which sought orders including that the child be enrolled in the B School as soon as the child’s enrolment is accepted with a position available for Term 1, Year 3 in 2010. Orders were sought in relation to the facilitation of the child’s enrolment and the payment of school fees by the father. Orders in relation to his schooling had however already been made by consent.
In addition, the father sought that the child spend time with the father commencing the first Friday following the making of these orders until 1 January 2011, from the cessation of school hours on Friday until the commencement of school hours on Monday, and from the cessation of school hours on Wednesday until the commencement of school hours on Friday. Commencing 1 January 2011 until 1 January 2012 it was sought that the child live with the mother and spend time with the father from the cessation of school hours on Thursday until the commencement of school hours on Monday and from the cessation of school hours on Tuesday to the commencement of school hours on Thursday. Orders were further sought in relation to K spending time with each parent on special occasions and other orders.
The mother in her Response and in her Case Outline document sought an order that the status quo in relation to the time spent on a fortnightly basis remain and that was her position at the conclusion of the hearing. She however supported “week about” in the course of the hearing being considered in 2013.

Evidence

Each of the mother and father filed affidavits.
Each of them was cross-examined; the father by the mother and the mother by the father’s counsel.
In addition, the father relied upon the evidence contained in an affidavit of his present wife, Mrs Nielsen, who is the mother of two of his children and who is expecting a third child.
The mother sought to rely in addition on an affidavit filed by her husband in support of some interim proceedings.
The other evidence was to be found in the report of Dr L, an independent expert appointed in the proceedings.
Dr L gave evidence of his opinion formed on the basis of information provided to him as at the date of his consultation with the relevant adults and K in May 2010.
The conclusion that Dr L came to at that time was essentially that the status quo should be maintained since it was something that the child wanted. He saw the child as having and feeling a greater security with his mother than with his father. He saw K as being about to undertake significant changes in his life and took the view, having regard to the matters put forward to him at the time of the assessment, that that would best serve the interests of the child.
In his oral evidence Dr L quite rightly said that he could only offer an opinion on the basis of the material which had been put before him and that he accepted if there had been changed circumstances arising since the date of the report it would be important to revisit his conclusions.
Not only did the father assert that there had been changes, which are set out in his affidavit, as to his involvement with K, but also that the mother had continued to act in a way which was detrimental to the child’s interests and which was said to be combative, conflictual and controlling.
The mother did not see herself as being controlling but I came to the conclusion, having heard the evidence and having observed her in the witness box, that she had difficulty in other than being controlling.
She was, it seemed, for whatever reason, having difficulty letting go of the control she had thus far exercised over the child and, indirectly, the father.

Dr L observed that this is not unusual and that he was not at all surprised by the assertion.
Dr L in his oral evidence conceded that his observations on the child lasted but a short time and that they occurred on a day on which K was unwell and a day on which the child had been in his premises for some hours. It is suggested by the father that it was for up to five hours.
His report can be summarised in part as follows:
a)Dr L was informed by the mother that she had agreed to the child being enrolled in B School and informed him (and subsequently informed the Court) that when the child took up that enrolment it was agreed with her husband that she would relocate to the B area for at least the remainder of K’s primary school years when he was at B School.
b)The mother intends to seek proximity to the child’s school so she can continue to participate in the child’s school life. The father is already a resident of the eastern suburbs and will also be close to the school K will attend. Presently, neither the parents nor the child seem to have difficulty in the current arrangements as to changes in care for him which have to be made, notwithstanding the different places of living of the parents.
c)The mother complained to Dr L that the father would not take the child to football training or swimming despite the fact that he encouraged the child to play football.
d)She made this complaint notwithstanding that the child’s swimming activity took place on a Monday when under the terms of the then current arrangements, the child was in her care. The mother conceded that the father was involved in the child’s football but indicated that he had objected to the child undertaking training in more than one code. Notwithstanding that, evidence was given to the court by the father and by his wife that the child had been enrolled in an AFL camp when ordinarily the child plays rugby league.
e)It was the assertion of the mother that neither the father nor his present wife devoted much time to the child and that the child would suffer from living with them, for lack of attention.
Dr L observed that his conclusion was that the father’s wife does include K in child focussed activities, including with the child’s half siblings, those being the children of her and the father. It appears that there is a reasonable, easy and appropriate level of contact between K and Mrs Nielsen, the father’s wife.
The evidence of the father provided in his affidavit belies the assertion that he is not involved in the child’s life in a positive way and, given the hours which he presently works, that involvement is significant. The mother asserted that proper parenting would require of him that he work fewer hours to devote more time to the child. I do not agree with her proposition. This father is attentive to his child in the same way that many fathers in intact families are attentive to their children in the time available to them given their other roles in the family.
There is no doubt that the views of each of these parents on particular matters varied considerably, however it is appropriate to note:
a)That they agree that they should have shared parental responsibility and inferentially agree that that was practicable, and I find it to be so. They agree as to the child’s schooling and had done so as a result of negotiation.
b)They each conceded that the child had to have a meaningful relationship with the other parent. Although it was the father’s case that the mother did not actively encourage the child’s relationship with the father and in fact had sought to place bounds upon it and limit it, the mother asserted that she did in fact believe it desirable and was prepared to work to the maintenance of the child’s relationship with the father.

The mother’s view was that the father’s orders as sought would deprive the child of a relationship with his mother which was close, loving, nurturing and superior to that provided by the father and that K would suffer accordingly.
It was put by the father’s counsel, that the relationship of the father and the child was different to the child’s relationship with the mother and that that was a function of the practical realities of the parents’ situations. The child would indeed have a different existence in a household shortly to be of six in his father’s care and a household of four in his mother’s care and that the child was likely to derive benefit from each of those experiences.
Dr L observed that the mother was more responsive to the child than the father.
However, by way of summary he said that neither parent offered specific child protection risks. He offered the opinion that the mother perhaps had a higher child focussed parenting style than the father but that the father’s wife provided an important counterpoint to compensate for that difference.
K, he says, has good development; he is somewhat precocious for his years. He says he has an excellent relationship with the half sisters and again in his oral evidence stressed the importance of those relationships.
He was excited about the fact that his mother was to have a child and that child is now born.
His conclusion was further that “[K] gains from a substantial relationship with both parents.” He said that there was absolutely no doubt that the child had a strong link to his current siblings and was excited about his future siblings.
Dr L asserted that both parents accept the responsibility of parenthood but discharge it differently. Both have a loving and caring response to the child and he is fortunate to not only be loved by his parents but also to have a genuine relationship with both of his step parents.
He also says, at paragraph 91 of his report:
There is absolutely no doubt that [K] gains from a substantial relationship with both parents … he seems strongly linked into his siblings (both current and future). There are identity and emotional reasons that promote the developed (sic) of shared parenting ideologies … There is a psychological benefit that accrues from the security, stability and continuity of experience with both parents, and a sense of belongingness (to aid the development of a sound identity). Finally, where parents can cooperate, the experience of good contact with both parents is thought to foster cognitive development. …
Dr L goes on to say that:
For all of these reasons the maintenance of good substantial contact in order to promote a meaningful relationship with both parents appears to be desirable in the current situation.
The view that Dr L had of the father was that he was less child focussed. It appears from the affidavit filed by the father in these proceedings, (and it may be that Dr L’s words have had their impact) in which he sets out his involvement in his son’s life and which indeed appeared to be significant. It would be difficult to assert, if that evidence is accepted (which I do), that the father is not appropriately focussed on his son.
What is of course of regret in this case is the fact that the adults have difficulty in communicating, however they have reinstated a communication book which appears to be assisting in communications between them.

Credit

In giving his evidence the father did not avoid questions. He answered them directly and where he was unable to recall or did not know he said so.
The mother, rather than replying directly to questions, took every opportunity to make statements unrelated to the questions which were pejorative of the father. It seems clear that the mother did not fully disclose her early involvement with drugs and alcohol to Dr L and conceded as much in cross-examination. The mother’s evidence was highly coloured and highly emotional and in my view sarcastic and critical of the father where it could be. It did not have a ring of reportage about it, it was rather propaganda and did not afford assurance of accuracy for that reason.
Where the parties differ in their evidence I prefer the evidence of the father.

The Issues

Ultimately the issues for trial related solely to whether there should be a present change to time spent by the child with his father. There appeared a consensus that an ultimate objective was equal time with each parent but the parties were in dispute as to when that should be considered, in 2012 as was the father’s proposition or in 2013 which was the mother’s proposal.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

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

Both parties concede that K should have a meaningful relationship with each of his parents. The relationship is good with each of them. The mother asserts that such a relationship with the father can be nurtured, developed and fostered within the confines of the current scheme of K spending time with the father. It is my view that, as this child grows older, he will be able to work toward an increased period to time with the father. Such an increase would assist in the maintenance and development of the opportunities for the father and his family to make those positive contributions that they can make to the attainment by this child of his full potential, whilst not detracting from the like opportunities for the mother and her family.
The mother, in her final address, conceded that indeed this was a desirable goal and is now one which she shares it seems with the father. The difference between the approaches in this regard is that the father sees a gradual increment to this goal over the period 2011 to 2012 with changes taking place in January 2011 and 2012. The mother sees no change until 2013 when she proposes it will be an appropriate time to consider an equal period of time.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This child is not, in Dr L’s view, and I agree, likely to be the subject of any child protection issues except that I am concerned at the level of past conflict between the parties and I find, having heard and seen the mother in the witness box, the mother’s attitude to the father particularly dictatorial and directive and mixed with some degree of aggression.
This could bode ill for this child if the situation were to continue. If the mother has the sensitivity that she says she has to the child’s needs she will, by her deeds rather than words, moderate her behaviour and recognise that her son’s wellbeing is served by a co-operative and polite approach to his father.
The father will have to respond in kind if this child’s future is to be free from the long term psychological danger of continued parental conflict.
I think that this proceeding may have been cathartic for each of the parents and I have hope that in the future (notwithstanding the foreboding of Dr L and counsel for the father) that the parties can come to a new understanding about their relationship and the commonality of their objective to contribute in their various ways to K achieving his maximum potential. That hope is encouraged by the agreements thus far reached on other matters which have put the interests of the child in a position of primacy to the parties’ needs.
Neither of the parties suggest that the child has or is likely to be exposed to abuse, neglect or family violence. It was the mother’s assertion that the father might spend less time with K than she but there was no assertion of neglect.

Additional considerations

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

K has expressed different views at different times and of course he is young. The mother pleaded for his voice to be heard. She took the view that the decision of the Court should reflect the child’s wishes. I think that whilst K’s wishes should be taken into account it is, for a six year old child, his needs which should be determinative. If I were to act on K’s wishes, then, on the evidence of the father, the child has recently expressed the view that he would like to spend equal time with his father and his mother which he sees as “fair”.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
K’s relationship with significant others is fostered in each household. The mother was keen to point to the ongoing relationship with her husband and her mother who resides in Queensland and others in her family. Dr L put strong emphasis on the child maintaining relationships with his present and future half siblings. He spoke in very positive terms of the child’s relationship with his step-mother. He said that it was important for the child and positive for those children. This child will be blessed with a number of siblings and extended family and by all accounts will continue to enjoy their company. Nothing in the orders that I propose will impede that.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I regret that it is not presently evident in the mother that this is a well developed willingness and ability. I think it could be fairly said that the father has not, to some extent, assisted in its development. However, the mother makes assertions as to her will and capacity. It is now for her to demonstrate that she has not only the will but also the ability to facilitate such a relationship in deeds, not just words.
The father too must be able to demonstrate to the mother that she can have the security of his willingness and ability to do likewise. I have every hope, given the nature of the process that has been before the Court and the advice of

Dr L which seems to have been taken to heart, that the parties, who are not unintelligent, can now see the importance of a change in attitude which can only operate to the benefit of their son. The orders that I propose to make will afford K an increasing opportunity to maintain and develop a close and continuing relationship between himself and each parent.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother asserts somewhat dramatically that there will be tragic consequences from a change in the present situation. That view was not shared by Dr L in his evidence. He said that K was comfortable in each of the households of his mother and father. He said that if there had been a change in the involvement of the father with the child then that was a foundation for a reconsideration of his recommendation in his report and he seemed to take the view that certainly the child could cope with extra time being spent with his father. The father’s affidavit and his oral evidence is of an involvement with the social, sporting and educational aspects of K’s life, although the child does not have available to him in the father’s care the same interaction with his peers as in the mother’s care.
This child will have differing needs as he grows older and different relationships with those around him, including his parents.
He, for example, will be making new friends when he moves schools and places of residence. He will, from time to time, have to adjust. I put to the parties and it is my view that if there is to be an adjustment it is better made when there are adjustments aliunde in K’s life.
It is for this reason that I have ordered that equal time not start at the time proposed by the mother but a year earlier, and when the child commences at B School. The mother asserted that since this would be a time for change it was an important time to have stability in the ongoing security of his maternal relationship. It is, however, because it is a time of change that the child needs to have the support of both his parents. K will be by then entering his ninth year and more mature than he presently is.
I have ordered a change to the current regime when K is facing the change in 2011 from school holiday mode to the commencement of a new school year. I think that this is important since it provides an incremental progress to shared time. It was the mother’s proposal that there be a sudden change considered in 2013 but, in my view, the gradual progression of that change has advantages for the child and will make it easier for him to adjust. In this way the move to the shared parenting time in 2012 will be almost seamless.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The orders that I propose will not create any practical difficulty and expense by reason of the child spending time and communicating with the other parent. The orders that I propose will support K’s right to maintain personal relationships and direct contact with both parents on a regular basis.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
There is no evidence that the parents and their new partners are not able to well provide for the needs of the child, including emotional and intellectual needs, subject to the caveat that a continuation of the level of past dispute in this matter would not be serving the emotional needs of this child. I hope that the narrow nature of the dispute at the end of this hearing means that the former level of conflict is confined to the dustbins of history, where it belongs.
Although, for a time, the father’s contributions to the support of his son financially might have been seen as modest he has, in orders to which he and the mother have consented, agreed to pay the private school fees for K at B School and pay them yearly in advance. He has also provided for the child other direct “in kind” benefits including health insurance, school uniforms and school requirements.
Undoubtedly his other obligations to financially support the child will be dealt with under the provisions of the Child Support (Assessment) Act1989 (Cth) at a level determined appropriate under that Act or any departure order made in relation to that assessment.
The mother has, however, borne a significant burden of the financial cost for the child.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
In my view, the evidence although referencing drug use and alcohol use by the mother and drug use by the father some time ago, neither parent asserted that such use was continuing. There have been, it seems, some demonstrations of impatience and even perhaps anger in front of the child but they seem not to have had any lasting effect and it is my expectation that they will, now that they have been aired, not continue. Each of these parties is intelligent enough to know that such behaviour can only hurt their son and damage him and that it would be viewed with great concern should there be any further consideration of this matter by a Court.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have already referred to the matters relating to financial support of the child. The father asserts and the mother denies that there has been an attempt on her part to limit the father’s involvement with the child. Dr L’s evidence is that where there is a strong attachment, as in this case between K and the mother (and in that regard he also says there is an attachment to the father but says it is not of the same strength) it is a two-way street. A mother in this mother’s position would not be inclined to yield easily to separation of the parent from K. I find however that there is some demonstration of that here. That having been said, it is true that the mother has come to agreements which have resulted in the father spending significant time with his son and she has facilitated that time.
(j)any family violence involving the child or a member of the child’s family
There is no evidence of violence however there is expressed concern by the father of the mother reacting at times with anger. I have referred to this above.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is none.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The orders which I propose to make are intended to operate during the period of the rest of K’s minority. Of course, as K grows older and matures, he will have views independent of the mother and the father and such views, if reasonably expressed and being considered views of the child, should be taken into account in the attitude of the parties to flexibility in the operation of these orders.

Dr L was keen to express the view that flexibility is a trait which each of the parents should develop for the future so that the child’s needs in special circumstances could be catered for. There has been, in the history of these parents’ interactions, occasions when flexibility has not been their attribute. It would be true, however, that if a parent wants that flexibility for the child then it is more likely to occur if information is conveyed in a timely manner and respect is paid to arrangements which already might be in place. Without such timely communication, flexibility is likely to be but a pious hope. I hope that these parties can demonstrate not only flexibility but better and more timely communication between each other. This case, as the mother has said, is about K, not about “them”. She, and indeed the father, must put in place child centred actions with those words.
(m)any other fact or circumstance that the court thinks is relevant
The mother points to the fact that the father is working and correctly points out that, having regard to decisions she has made as to her employment, the child would be able to spend more time with her than with the father. The father, however, lives in a family unit where there are two, and shortly to be three, other children and has a wife who on all accounts has a good relationship with the child. K’s half siblings and his step-mother are also important in K’s life and are able to fill it during such times as the father is absent from the household by reason of his employment. The hours that the father works in any event do not appear to be other than standard, although the father asserts that he can, from time to time, make arrangements to fit in with special needs that the child might have.
In his evidence, Dr L identified advantages and disadvantages of change for K and it was my impression that his evidence indicated that were change to take place, the child could cope with that change and that there would certainly be some advantages to it in terms of increasing K’s time with his siblings and also with his father.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. The mother asserts that the father has not taken each and every opportunity to spend time with the child or that he has failed to place K’s needs above his own. Some of those assertions dealing with his hours of work are simply not sustainable on the father’s evidence, and which I accept. In addition, the father is assisted in the child’s care by his wife and at times a nanny. Dr L did not see a nanny as being a problem for the child providing the child had a good relationship with the nanny, which this child has demonstrated. It seems to me that K is experiencing with the father the dynamics, needs and solutions found in large families and in my view is not the worse off for that. He has different attention in his mother’s household. Although the mother has a new child in that household it is not yet of the size of the father’s household.
The mother has made some decisions about K’s life and then told the father rather than involving him in the decision making process. Extra curricular activities are an example of this conduct. Co-operative contribution from each of the parents to decision making should be the hallmark of their conduct for the future.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been no family violence.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
In this case there is no reason for the presumption not to apply and both parents seek orders for shared parental responsibility.
I have considered whether the child spending equal time with each of the parents is reasonably practicable. It is practicable in terms of geography and, whilst communication between these parents has certainly been less than optimal, the reinstatement of a communication book has created a channel for communication which does work.
The parents, although having differing views on many matters, have made the existing regime of 5 nights out of each 14 work and it seems to me that there ought be no reason why they could not, given the application of their intelligence and the matters of which they were informed as a result of these proceedings, be able to make that work for 7 out of 14 days. There have thus far it seems been no difficulties in the movement of the child between households.
Dr L in his evidence goes to the question of impact. His original opinion was based on but a short interview. He emphasised that the child needed security in what he then perceived was a potentially volatile situation and he offered that opinion at a time when it was proposed that there be an immediate change from the present regime to equal time. His evidence was clearly that that view should be revisited, having regard to the statements of the child made since and the detailed evidence of the father’s involvement with the child. He also reiterated the importance to K of his relationship with his siblings and the role that K’s step-mother plays in his life.
The Court was left with the impression that, overall, it was unlikely there would be there would a negative impact on K and that the child would find the stability he needs in either household, particularly given that there will a less dramatic change and given the measure of agreement which has otherwise been reached between the parties. That co-operation will hopefully not only continue, but grow. The child will still have the benefit of the warmth and love, and the support of his step-father which is clearly his in the mother’s household.
I have asked of these parties what courses they had undertaken and it seems that the father has undertaken a parenting course as has the mother. It seemed to me that in the past, mediation had some success. In order to provide the opportunity to these parties to have access to assistance should disagreement arise, it is my intention to make an order that the order be supervised until March 2012 to the intent that the parties may have access to assistance from the Child Dispute Resolution Service of the Court. I trust that they will see the benefit of such a process which does not carry with it the costs in time, money and emotion of litigation and can often afford people resolution of their dispute rather than just adjudication on it.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make will afford the parties an incremental approach to equal shared time over a period of one and a half years. I find that to be in K’s best interests.
I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding one-hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 29 July 2010

[2010] FamCA 670

29 July 2010

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