O and O

[2008] FCWA 33

[2008] FCWA 33

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	REGIONAL CENTRE
CITATION	:	O and O [2008] FCWA 33
CORAM	:	MARTIN J
HEARD	:	3-6 DECEMBER 2007
DELIVERED	:	5 FEBRUARY 2008
PUBLISHED	:	13 MARCH 2008
FILE NO/S	:	PT 1976 of 2006
BETWEEN	:	O Applicant
AND
O Respondent
Catchwords:

FAMILY LAW - child - equal shared parental responsibility - equal time

Legislation:

Family Law Act 1975 s 60B, s 60CA, s 60CC, s 61DA and s 65DAA

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

[2008] FCWA 33

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Case(s) referred to in judgment(s):

Nil

[2008] FCWA 33

1 The issues for determination were the parties’ respective applications for

parenting orders, the proceedings having been commenced by the wife by a Form 1 application filed 7 April 2006, to which the respondent filed a response on 2 May 2006. The applicant filed an amended application on 19 October 2007 and the respondent filed an amended response on 21 November 2007.

2 At trial, the principal issues in dispute were:

1. The mother sought that she have sole parental responsibility for the child of the parties, a boy aged nearly four years. The father proposed that the parties have equal shared parental responsibility.

2. The father proposed that the child live with each parent for an equal amount of time – until shortly prior to trial he had proposed a week about arrangement, but in his amended application, filed in November 2007, he proposed a five day/two day split, totalling seven days in each fortnight. The mother proposed that the child live with her, and the father spend time with the child each Thursday from 5.00 pm until Saturday at 6.00 pm. She proposed each party be able to holiday with the child for two weeks during school holidays.

3 The father’s weekly time with [the child] she proposed was slightly less than the

arrangements at trial, whereby [the child] stayed with his father from 7:30 am on
Thursday.

4 In her amended application, the mother had sought to be at liberty to change the

child’s residence to within a 300 km radius of the GPO at [the Regional Centre]. The mother did not seek to relocate at trial, and did not make specific proposals in this regard. She would like to move to Perth to be closer to her family and if her family’s health required it, but was prepared to delay any move in the hope that the position between the parties may improve.

5 At trial, there was a significant issue as to whether the child should commence

kindergarten at the beginning of the 2008 school year at the [local] Community Kindergarten, or at some other daycare/kindergarten as proposed by the mother. At the conclusion of the hearing, I indicated to the parties that, at the least, I would deal with this matter prior to the 2008 school year. I did make some orders in relation to the kindergarten enrolment. Unfortunately, due to what can only be described as a bureaucratic bungle, my decision in this regard was not made until just very shortly after the commencement of the kindergarten year and the parties wasted a trip to Perth in the previous week. I apologise to the parties for the inconvenience caused to them.

6 At the conclusion of the hearing, on Thursday 6 December, I made the following

orders:

1. Pending disposal of the proceedings, the child of the parties, [THE CHILD] born [in] March 2004 spend time with the parties as follows:

1.1 pursuant to the interim orders until Saturday 15 December
2007 at 6:00pm;

[2008] FCWA 33

1.2

thereafter, the child live with the father:-

(i)	until 6 pm on 17 December 2007;
(ii)	from 5:00pm on 25 December 2007 until 31 December 2007 at 6:00pm;
(iii)	from 7:30am on 4 January 2007 until 11 January 2007 at 6:00pm;
(iv)	from 7:30am on 26 January 2007 until 28 January 2007 at 6:00pm;

and otherwise with the mother, and then in accord with the
interim orders.

2. If the child is to spend overnight away from a parent’s home, the other parent is to be informed of the address the child is staying and a contact telephone number.

3. While the child is with the other parent, the parent with whom the child is not living is to be permitted to have telephone contact with the child once every day between 9:00am and 7:00pm.

4. Until judgment, the father be permitted to retain the child’s enrolment at [local] Community Kindergarten and the mother be permitted to enrol the child at the [named] Day Care centre if she wishes.

7 On 5 February 2008, I made the following orders:

1. All previous substantive orders be discharged.

2. The parties have equal shared parental responsibility for the child.

3. The child live with his father: (1) During school terms:

(i)	In the first week, from after kindergarten or pre-primary school on Thursday until 6:00 pm Sunday, or if he is not attending kindergarten or school, from 2:00 pm Thursday;
(ii)	In the intervening week, from after kindergarten or pre-primary school on Wednesday, or if he is not attending kindergarten or school on Wednesday from 2:00 pm, until 6:00 pm Friday;
(iii)	These arrangements be suspended during school holidays.
(2)	For the second week of the mid year school holidays from 6:00 pm on the middle Saturday of the holidays to 6:00 pm on the following Sunday week;
(3)(i)	During the summer school holidays, for one half of the holidays with each parent to have the right to nominate in alternate years, by 1

[2008] FCWA 33

October in each year, the days of the holidays they propose to have the child live with them, with the mother having the right to nominate in 2008;

(ii)	The nominated days are to include two uninterrupted weeks with each party;
(4)	Subject to any other agreement between the parties, in each alternate year from 5:00 pm on Christmas Day to 6:00 pm on Boxing Day commencing 2009, and in the intervening year from 9:00 am on Christmas Eve to 5:00 pm on Christmas Day;
and the child otherwise live with his mother;

4. If Mother’s Day or Father’s Day falls on a day when the child is with the father or mother respectively, [the child] spend that day with his mother or father from 8:00 am to 7:00 pm.

5.(i)	In the event that the father’s birthday is not a day that the child is living with him, the child spend any portion of the day the father is not working, with him, when the child is not at kindergarten or school, between 8:00 am and 7:00 pm.
(ii)	In the event the mother’s birthday is on a day that the child is living with the father, the child spend the time he is not at kindergarten or school, between 8:00 am and 7:00 pm with the mother.

6. The parent with whom the child is not residing on his birthday in any year spend from after school or 3:30 pm with him until 5:30 pm.

7.(i)	In 2008, the mother enrol the child to attend a kindergarten, which may include the [Day Care] Centre, on at least two days each week during the times that the child is living with her, and ensure he attends regularly.
(ii)	The mother be responsible for enrolling the child at a pre-primary school of her choice.
(iii)	The kindergarten or pre-primary school is to be within 15 minutes’ drive of her home.
8.(i)	In relation to the child’s primary school education, the parties discuss the issue with the assistance of a family consultant, and in the event that the parties are unable to reach agreement, either party have liberty to apply to relist the proceedings for further argument no later than 1 September 2009.
(ii)	Each party be permitted to file a further affidavit setting out their precise proposals in this regard and the reasons therefore, and an affidavit of one other witness.
9.	Each party be responsible for collecting the child from the other parent’s residence, school or kindergarten, at the commencement of the time they spend with the child.
10.	If the child is to spend overnight away from a parent’s home, the other parent is to be informed of this and provided with a contact telephone number, which may be a mobile telephone.

[2008] FCWA 33

11. While the child is with the other parent, the parent with whom the child is not living is to be permitted to have telephone contact with the child once every day between 9:00 am and 7:00 pm.

12.	Unless the child is attending kindergarten or school at the time, the father is not to accept regular teaching commitments during the time that the child is living with him.
13.	Each parent is to provide the other with notice of any significant medical issues or any significant events which occur during the time that [the child] is with them, by written communication book, email or telephone.
14.	Each party keep the other informed of their telephone contact numbers at all times.
15.(1)	In the event that either party proposes to change their place of residence, the other parent be given no less than two month’s written notice.

(2) Either party then have liberty to apply to seek variation of these orders on
short notice.

16. Either parent be permitted to take the child to any significant family or social events during the other parent’s time with the child, on 14 days’ notice to the other parent.

17. There be liberty to apply in relation to implementation of these orders and for further definition of the orders.

18. The parenting orders be supervised by a family consultant for the next two years.

19. The applications otherwise be dismissed.

8 As foreshadowed, I now publish Reasons for Decision.

Background

9 [The father] is 39 years old and [a teacher]. [The mother] is 40 years old and engaged in home duties. She has worked as a secretary and has a [degree]. The parties were involved in a relationship from about early 1994, and lived in the same home from 1994 to January 2005, although they lived separately and apart under the one roof from about October 2004. They married on 16 December 1995. The parties were divorced in January 2007. The parties’ only child, [the child], is just four years old.

10 The mother has not repartnered. The father has remarried, on 21 July 2007, to

[M] aged about 35 years, who is engaged in home duties. [M] has three children, [L] aged eight years, [C] aged five years, and [P] aged nearly four years, a month younger than [the child]. [M] is from [overseas], and, when she met the husband during 2006, had been a widow for over two years. The couple commenced living together at [the father]’s home in January 2007.

11 The parties travelled overseas for a year in 1999/2000.

[2008] FCWA 33

12 At the time [the child] was unexpectedly conceived (as the mother had had some

fertility problems) in mid 2003, the father was involved in an extra-marital affair, and the parties were sleeping in separate bedrooms at the time of the child’s birth. The father’s position is that, in his mind, he believed the relationship had ended by the time [the child] was conceived, but did not inform the mother of this until six months after [the child] was born. He decided to stay in the home for financial reasons. The parties had been engaged in developing a property and, at that time, were financially stretched. He informed the mother he had been having an affair in September 2004.

13 The father complains the mother took the child to Perth for a few weeks in the

latter half of 2004, without any consideration for the relationship between him and the
child.

14 The parties completed a form on 23 November 2004, which was lodged with

Centrelink, which claimed they were living separately and apart under the one roof, but the claim was not accepted.

15 The father vacated the family home in about January 2005.

16 It was not in dispute that the mother was the primary caregiver of the child after

his birth, and the father’s time spent with him has increased as he has grown older. The father continued with his employment with the [government]. The mother’s position is that the father became more interested in the child after his extra-marital affair ceased in June 2004, when [the child] was three months old, but he was not consistent in his involvement in the child’s care. The mother had many complaints about the physical aspects of his care of the child, and also was concerned as to non- compliance with her time requirements.

17 The father’s position is that he wanted to have overnight time with the child from January 2005, but decided not to force the issue during that year.

18 Proceedings commenced in this Court, in April 2006, on the mother’s

application. On 12 June 2006, it was ordered that the child reside with the mother and that she have sole responsibility for the day to day care, welfare and development of the child, except at times when the father was to have contact with him. The father was to have contact each Tuesday from 7.30 am until 11.00 am, and each Thursday and Saturday from 9.00 am until 5.00 pm. Each party was to provide the other with notice of any significant issues regarding the child while he was in the care of that party.

19 During 2006, the father was not working, as being involved in the scheme that

allows teachers to have every fifth year as paid leave, providing they take an 80% pay cut in the preceding four years, so his position was that he was not limited by his employment in the times he could have [the child].

20 On 11 September 2006, it was ordered, by consent, that the child spent time with

his father from 11.00 am Sunday until 6.00 pm Monday in each week and from
7.30 am until 6.30 pm Thursday in each week.

[2008] FCWA 33

21 The child’s first overnight time spent with his father without his mother was on 17 September 2006.

22 The parties had also been involved in property settlement proceedings which

were resolved by orders made, by consent, at a pre-trial conference on 14 December 2006. Pursuant to those orders the mother was to retain the home in which she is presently residing at [the address], free of any debt or mortgage. There was a splitting order in respect to the father’s superannuation. The mother was also to retain some shares, two motor vehicles and household items. The father was to retain the property in which he lives at [the address] and a property [in the Regional Centre]. He also retained a share portfolio and his superannuation entitlements. Both parties are quite comfortable financially.

23 At the conference on 14 December 2006, the parties also agreed interim

parenting arrangements. The father was to have contact with [the child] each Thursday from 7.30 am to Saturday at 6.00 pm, and for a period of two weeks in each calendar year to allow the father to holiday with the child. He was to provide no less than 14 days notice of the dates and detailed itinerary in writing to the mother. The father’s contact was to be suspended for two weeks in each calendar year to allow the mother to holiday with the child, with the mother to provide no less than 14 days notice of the dates and itinerary in writing to the father. Each party was to provide the other with notice of any significant medical issues, residence and/or contact changes concerning the child that may arise while he was in the care of that party. This was the arrangement at trial.

24 The conference note states that the parties had generally agreed to adjourn the proceedings for a period of time to monitor progress in the matter.

25 In the second half of 2007, the relationship between the parties seems to have deteriorated. It is not clear why this was the case.

26 There were problems between the parties about the arrangements for the July

school holidays, which was shortly prior to the father’s wedding to [M]. The father gave the mother notice of his intentions, but the mother was not happy about the detail of the itinerary provided.

27 The parties attended a procedural conference on 19 July 2007. The conference note at that time says:

•  [Mrs O] has concerns about: 

(i) [the child]’s medical treatment whilst in [Mr O]’s care;

(ii) whether [Mr O] is working during the time the child is in his care;

(iii) [Mrs O] also alleges [Mr O] does not comply with Court orders.

• [Mr O] seeks shared care of [the child]. [The child] will be starting kindergarten next year.

• [Mr O] wants to:

(i) increase school holiday contact to half of each school holiday period;

[2008] FCWA 33

(ii) change contact to alternate weekends rather than each week.

28 Directions were made for the trial to be listed before me.

29 On 23 August, there was an unpleasant incident between the parties. The child

was staying with the father, and the mother contacted him to say goodnight by telephone. [The child] became distressed when talking to his mother and asked her to come to get him. The mother spoke to the father, who said she was upsetting the child. He refused to let her speak to the child further, or to come to his home to pacify him. He would not then take further calls. The mother contacted the [Regional] police who, she says, were unable to do a welfare check due to a shortage of staff. The police officer telephoned the father and was told that [the child] had gone to sleep. The police officer said there was nothing more that he could do, and to take the matter up with the court. The mother then went around to the father’s home and asked to see the child. The father refused to let her see him, but he showed her a digital photograph of [the child] smiling, in bed, that the mother said he claimed had just been taken. However, the father would not let her go into the home to see [the child]. The mother wanted him to bring the child to the door so that she could see he was alright, but the father refused and the mother left the home extremely distressed.

30 The father understandably claims that the mother acted unreasonably on this

occasion and just made the child more upset. [M] had calmed the child by giving him a Spiderman toy. He says also that the mother came to the child’s bedroom window and was trying to see him from there. Naturally, [M] was upset about the situation as she was concerned about possible effects on her children, and felt her space invaded.

31 Frankly, I find it very it difficult to understand why a parent would call the

police in these circumstances and visit the other parent’s home, or why a parent would attempt to placate the other parent by showing her a photograph when it would have been so easy to let her see the child. Obviously, a child of [the child]’s age at the time would sometimes likely to be upset if away from his primary carer, in this instance, his mother. For this reason, I would have thought that telephone calls at bed time are not a good idea. The whole incident did neither party any credit.

32 On 14 September 2007, [the father] filed an application seeking a misconduct

restraining order, arising from this instance, but was informed it was not permitted as
being a claim made by a relative.

33 On 13 September 2007, [the child] was handed over to his father’s care at the

mother’s home at 7:30 am. The [mother’s sister], was staying there at the time. At about 8:00 am, the father rang and said the child wanted his skipping rope from the mother’s home so a group of [the father], the child and [P] walked towards the mother’s home where they were met by [the mother’s sister], [her daughters], and the first two accompanied them back to the father’s home.

34 The mother’s evidence is that on Saturday, 15 September 2007 at about 6:00 pm

she arrived at the father’s home to collect [the child]. On her return home she attempted to contact the father urgently by telephone “to provide an explanation as to how and when [the child] received his “black eye” (purple and yellow) and whether he had received medical attention”. The father contacted her during the evening of Sunday, 16 September 2007, and informed her he did not know what had happened to

[2008] FCWA 33

the child’s eye and that he had already had the injury when handed over by the mother,
which is strongly denied by her.

35 At 7:10 pm on the evening of Saturday, 15 September 2007, the mother took the

child to [the Regional Hospital] where [the child] was seen by the triage nurse and then the head casualty doctor, [Dr W]. The mother’s evidence is that at that time, [the child] was saying that he had incurred the injury by tripping over a pillow and hitting his head on the floor. The doctor had said the injury could result in concussion. Any eye injury could be significant. The mother’s evidence is that on the way home that evening, [the child] said that his father had told him to say that he had tripped over a pillow, but it was not until the morning of the next day that [the child] told her that [L], the father’s stepson “was being nasty and threw a ball at his eye while on the trampoline in the afternoon and that he didn’t even say sorry. Later that day [the child] told me that [L] hit him in the head in the morning with a pillow”.

36 The mother reported the incident to the police the next morning and was

informed that the child protection officer did not consider it a police matter. She was
provided with an incident report number.

37 On Wednesday, 19 September 2007, the mother provided to the father a letter

notifying him that she was withholding contact for the period from 20 to 22 September
2007, as she had concerns about the child’s welfare.

38 On Thursday, 20 September, and Friday, 21 September, the mother took the

child to the Child Protection Unit at Princess Margaret Hospital for assessment. Any
claims of abuse were later found to be unsubstantiated.

39 The father’s position was that the injury must have occurred prior to the child

coming to stay with him. He had not taken the child to the doctor as he did not think it necessary as the injury was not bad. His evidence was that a photograph of the child had been taken by his step-daughter [P] shortly after the child’ arrival and it had shown up on this.

40 The mother’s version of events was supported by [her sister], whose evidence

was that the child did not have an injury when he went to the father on the Thursday morning. A short time after 8:40am she noted [the child]’s eye looked slightly red. Later on the Thursday morning, [she] had actually visited the father’s home and her evidence was that it was he who had been taking some photos. [The father] had been “angry and seething” about a judgment made by the Child Support Agency in [the mother’s] favour.

41 The mother’s position, referred to at para 53 of her trial affidavit was:

“If in fact [L]’s behaviour did cause the injury to [the child]’s eye and [the father] had told me as such and that [L] had been appropriately spoken to about taking care with young children or suitably punished for deliberately hurting [the child], this instance would not have gone any further?”

42 I am satisfied that, on the evidence before me, it was more likely than not that

the injury occurred while [the child] was with his father, but this, of itself, is of little

[2008] FCWA 33

concern as being a normal childhood accident. What is of concern is the mother’s “over the top” reaction to the incident, which was out of all proportion to the injury – although it was appropriate for the eye to be checked by a doctor, the rest of her actions were unnecessary. It would have been more helpful for the father to be open and frank about the event – he is on record as saying he didn’t know how the injury occurred, so why dispute it could have occurred while with him.

43 On 25 September 2007, [the father] filed a Form 18 contravention application

asserting the mother did not hand over the child as required by the orders then in force,
and a Form 2 application seeking that the child be delivered to him.

44 On 3 October 2007, it was ordered that the child spend time with the father for the following week, for 4½ days, and the application was otherwise adjourned to 30 October 2007.

45 The parties attended a pre-trial conference on 18 October, and extensive

directions were made. The parties made reasonable attempts to comply with the directions despite the fact they were self-represented. Unfortunately, the directions, which are quite technical having regard to the fact that the parties are both self- represented, entailed them having to spend a lot more time in preparation that I consider was really required.

46 It was then noted that there was also a contravention application filed by the

husband on 25 September 2007, which was returnable at the conference for directions.

47 On 30 October 2007, it was ordered that each party notify the other of any

significant medical issues that occur while [the child] is with them, and the father’s
application filed 25 September 2007 was dismissed.

The mother’s proposals for the care of the child

48 The mother proposes, for the time being, to continue to live in her present home

and care for the child on a full time basis. She had not yet enrolled the child at a kindergarten, but he had attended the [named] Day Care centre which had a kindergarten type of programme and she may send him there. At trial, she pointed out that kindergarten education was not compulsory, and she was not specific about her proposals.

49 It was clear she really felt that it was in [the child]’s best interest to spend the

time with her, which I did not accept when the child needs socialisation with other children. She was concerned about the child attending the [local] Community Kindergarten, as he would then be in the same class as [M]’s daughter, [P], whom the mother claimed did not get on with very well with [the child]. [The mother] was concerned that [M] was involved in the school and that this could make the situation uncomfortable for her.

50 The mother’s parents and other family members visit the home regularly, and

she visits them.

[2008] FCWA 33

The father’s proposals for the care of the child

51 [The father] proposed that [the child] should spend equal time with both parents,

spending from Tuesday to Thursday in one week with him and, Thursday to Sunday in the following week. As he works as a [teacher], his work is very flexible. During this year he proposed to work three days per week - he proposed Monday, Tuesday and part of Wednesday, and so he maintained there was no reason why equal shared care is not appropriate, [the child] now being old enough for this.

52 He proposed the child should attend the [local] Community Kindergarten this

year and then pre-primary and primary school at the [local] Primary School, which is the kindergarten and primary school attended by [M]’s children. The facilities are quite close to the parties’ homes.

53 [The child] also has contact with other family members while with him.

Relevant factors

Legislative provisions and relevant factors

54 Section 60B of the Family Law Act, relating to children and the principles underlying it, provides:

(1)

The objects of this Part are to ensure that the best interests of
children are met by:

(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)

The principles underlying these objects are that (except when it is
or would be contrary to a child’s best interests):

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

[2008] FCWA 33

(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)	parents should agree about the future parenting of their children; and
(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

55 Section 60CA provides 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.

56 Section 60CC(2) of the Family Law Act 1975 provides that the primary considerations determining what is in the child’s best interests are:

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

57 It was not in dispute that it is to the benefit of [the child] to have a meaningful relationship with both his parents, and that he does have such a relationship.

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

58 There were several issues in this regard referred to at the trial. The first was the

issue of whether [the child] had suffered his eye injury in September 2007 while with the mother or the father. The mother felt the father was not sufficiently protective of the child and was not honest with her (or the court) about what had occurred. I have already referred to my conclusions in this regard.

59 Another issue was the concern of the mother that the child may have been

subjected to inappropriate sexual behaviour while with his father. The mother had made a report to the DCP in 2005, about the child apparently using his teddy as a masturbating tool. She had also referred to the child saying a kiss on his penis was a “Daddy kiss”. The issue was not extensively pursued at the time, and was found to be unsubstantiated.

60 On 21 September 2007, she reported the incident regarding the child’s injury to

the Department, and also alleged that the child had disclosed that he had masturbated, as had his father, while sitting next to his father in a car, outside a swimming pool and in a combie van. I believe this alleged incident had come to her attention in January 2007.

[2008] FCWA 33

61 [The child] was interviewed by Dave Bridge of the Speciality Child Interview

Unit. Mr Bridge said there was no clear disclosure - “Dave stated he was most sure the child should not proceed with more interviews based on what he saw and heard from [the child] at this time. Dave suggested strongly for DCP to look at the fact mum may be abusing the child (by instigating examinations and investigations to be put into place.) Dave stated that in the interview he began to feel as though he was beginning to abuse the child himself with the questioning. Dave stated Mum adamant at the end of the interview that she needed to have something for court”.

62 On 29 November 2007, the mother was informed by the Department of Child

Protection that her allegation had not been substantiated. The report of the departmental officer said:

“Key Decisions & Rationale

The risk to [the child] [O] could not be substantiated. [the child] was not interviewed by [the Regional office of the ] DCP however was subjected to assessments by PMH and by Specialist Child Interviewing Unit - of which both found no cause for further action. Further upon speaking with both parents, it was not clear any harm was caused to [the child].

Concerns remain around the family dynamics as there is a clear tense and unrelenting difference of opinion on parenting styles by [the father] and mother]. Unless strong and clear concerns arise in the future, [the child] being subjected to further assessments and interviews may prove detrimental to his wellbeing.

During the interview with [the father], he displayed a more relaxed parenting style which will allow for [the child] to develop his own confidence and socialisation skills amongst his step siblings. [The father] was able to clearly articulate concerns for safety and the need for the children to be monitored. [The father] was able to state he has taken steps to ensure the children's safety.

[The father] was able to speak of [the child] and his personality during time with DCP. [The father] was able to state examples of how [the child] may misinterpreted (sic) actions and how his concepts (eg time) are developmentally impacted.

[The mother] was visibly more distressed during her time with DCP. [The mother] was able to describe incidents of [the child] speaking of "daddy kisses" and actions with a teddy, [the mother] was clear in her thoughts that this was not appropriate actions of a young child and this belief was reinforced by Doctors, (but who did not report these concerns to DCP). [The mother] was able to state that masturbation was part of a child exploring and was able to state her way of dealing with this was to teach [the child] to conduct these matters in private - which is considered appropriate. [The mother] has already undertake to teach [the child] protective behaviours.

[2008] FCWA 33

[The mother] did appear to find it difficult to accept when [the Team Leader] described the need to not call whilst [the child] was on access as each parent has aright to time with the child and that stressors amongst parents can transfer onto children and negatively affect them. It was also stated that having a child subjected to further interviews and assessments by doctors could harm [the child].

An acceptance of differing personalities and parenting styles of both parties by the parents (especially [the mother]) may provide for less stressful custody arrangement. [the child] will be able to adapt to having two different styles of parenting - one where he is allowed to experience 'safe' risk taking provided by [the father], coupled with the attentive nature of [the mother].

Based on independent assessment, SCIU, PMH and DCP and interviews conducted with both parents, it appears no reason why [the child] should not be able to experience a meaningful relationship with both parents. The parents' attitude will determine if this is that case.

It is therefore recommended that the concerns of harm or of risk of harm not be substantiated.

It is further recommended that the period of contact be closed as there appear to be no viable DCP role. Both parents stated their wish for the child to have a safe and nurturing shared care arrangement,

It is to be hoped that both parents will be able to focus on the child's needs and accept that there is some difference in their parenting styles.”

63 Having regard to the evidence and the opportunity I had to assess the parties

over several days, I accept his assessment was accurate as far as it goes, although there are issues regarding the father’s other unreasonable actions which were not relevant to the Departmental position. I have no doubt, on the evidence before me, that the child is not subject to any risk of any sort while with the father, other than the normal safety concerns of living in a home, with other children, on a rural property.

64 [The child] is at risk of psychological harm as a result of the unnecessary and unreasonable conflict between his parents for which both must bear responsibility.

65 As to the additional considerations set out in s 60CC(3) of the Act:

(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;

66 Neither party suggested, having regard to [the child]’s age, that his views as to the specific orders sought were of significance.

(b)	the nature of the relationship of the child with:
(i) each of the child’s parents; and

[2008] FCWA 33

(ii) any other persons (including a grandparent or other relative of the child);

67 It was not in dispute that [the child] has a very good relationship with both his

parents. The father, in his affidavit material, asserts he has a close bond with the child, and I accept this is the case, but I do not accept the child’s bond with his father is any closer than with his mother.

68 I accept [the child] has a good relationship with [M] and, generally, with her

children, although the development of the father’s relationship with [M] has had a significant impact on [the child], as he went from an only child, doted on by both parents, to having to “share” his father with other children. While the mother says [M]’s children can be rough with [the child], I have no reason to doubt that he generally has a good relationship with them.

69 It is not in dispute that the child has a good relationship with all his grandparents, whom he sees regularly.

70 [the child] also has a good relationship with other family members.

(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;

71 Generally, with some problems over the years, both parties have been able to do

this. There have been short periods when the mother has not made [the child] available to see his father, particularly in mid September 2007, but she maintains this was for very good reason.

72 While she has not been particularly willing, I accept she is likely to comply with court orders in the future.

(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 parents; or
(ii)	any other child or other person (including any grandparent or other relative of the child) with whom he has been living;

73 [The child] is used to being with his father, or [M], for about 2½ days per week

and with his mother for the rest of the time, except when he attends Day Care. Neither party is suggesting he should be separated for more than a week at a time from either parent, except perhaps during the summer holidays. This was obviously the basis of the father’s proposal for splitting the child’s time with each parent into five day to two day spells over the fortnight, and I accept [the child] would probably now be able to cope with this.

(e) the practical difficulty and expense of the child spending time with and communicating with each parent and whether that difficulty or

[2008] FCWA 33

expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

74 The parties live in the same street about a kilometre apart, so there are no

practical difficulties in this regard. With supervision, the child can ride his bicycle
between the homes.

(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 his emotional and
intellectual needs;

75 Both parties are clearly capable of caring for all [of the child]’s needs, although

[the mother], as primary caregiver, is probably slightly more experienced than [the father] in caring for [the child]’s day to day needs. [The father] attended a Toddler Parenting Course some time ago. Both have accepted that the child should spend substantial time with the other parent, so must accept their caring abilities.

76 [M] is clearly an experienced and competent parent, but I would have concerns about too great a reliance on naturopathic remedies.

77 Both parties are capable of caring for [the child]’s emotional needs, apart from

the fact they have been responsible for directly involving him in conflict between
them, which has been to his detriment.

(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;

78 [The child] is nearly four years old, and is generally in good health. The

mother’s evidence was that he is showing signs of insecurity in that he is nail-biting, is scared of sleeping by himself and is clingy. She says that [the child] is quite independent, but regresses while with his father and becomes less independent and competent.

79 The father accepts the child is clingy to him, and [M]’s evidence is that [the child] was not nearly as independent as her daughter, [P], who is the same age.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

80 Both parties are focused, and caring parents, who are trying hard to be responsible parents in difficult circumstances because of their fairly poor relationship.

[2008] FCWA 33

81 As I have already said, my main criticism of them is they have not managed to

keep [the child] from being involved in, and aware of, the disputes between them. They have no trust in, or respect for, each other’s parenting, when they should have, even though their parenting styles are quite different.

82 The mother, at para 8 of her trial affidavit, lists a number of complaints about the

quality of the father’s care of the child when he was younger – mainly alleging he has not been sufficiently careful and has exposed the child to unnecessary risks, for example, in exposing him to loud noises. Back in January 2006, the father transported the child in a vehicle with a cracked windscreen and no air-conditioning on a very hot day.

83 The mother has also expressed concern that on several occasions the father has

not properly supervised the child while in his care and that he has been teased and perhaps injured while with [M]’s children. She is also concerned about the children being outside the father’s house when there is a nearby dam which is not fully fenced off.

84 The mother also expresses concern about the father’ preventing her from telephoning the child on occasion. The mother, at para 64 of her trial affidavit said:

“[The father] is jealous of my close relationship with [the child] and he is trying to restrict me from having continuity of a relationship with him. I do not believe that [the child] should be made to feel insecure by restricting his phone contact with me to every second or third day just because we are divorced. If we were married I would have contact with [the child] nearly every day. [The child] is very close to me and likes to hear my voice on a daily basis.”

85 The mother also says that the father has made life difficult for her in other

respects, for example, in August/September 2006, he made complaints about the mother’s then lawyer which were both dismissed by the Legal Practitioners’ Complaints Committee.

86 The mother has expressed concern about the father’s willingness to properly

address any health problems of the child, and pointed to the fact that she has made
almost all the Medicare claims for any medical treatment required by the child.

87 The mother’s evidence is that on 8 July 2007, the child was handed over to her,

when he was ill, at her insistence, for her to get medical attention “as [the father] was not concerned about taking him”. The mother took [the child] straight to the doctor with a fever and was immediately prescribed antibiotics for an ear and throat infection (at a time when there had been publicity about children dying of respiratory problems at that time).

88 On Sunday, 15 July 2007, the child’s body had been covered in a red rash at

handover to her. There was a letter from the child’s doctor, [Dr T], confirming that he saw the child on that day for a rash consistent with an allergic reaction to the antibiotic prescribed for the infection the previous week. The father had not sought medical attention in relation to this.

[2008] FCWA 33

89 On 7 August 2007, the child suffered a graze injury to his kneecap whilst in his

father’s care, which was inflamed. The doctor prescribed an antibiotic and dressed the wound. The father had not sought medical care. The mother claims [the child] told her he was being chased by [L] at the time the injury occurred.

90 The father pointed out there was an occasion, in June 2005, when the child was

hurt by hitting a coffee table when he had warned the mother about the danger of this. There have also been differences of opinion between the parties, and [M], over treatment for the child’s asthma and the consumption of dairy products. These are not significant in themselves, but are other examples of differences of opinion over parenting issues. Obviously, if the child needs medical treatment while with the other party he should receive it, and that party must bear the cost.

91 The father’s principal complaint about the mother, apart from his concern about

her attempts to limit his involvement with the child, are his claims that the mother has been over protective in many respects of the child, an example of this being she required him to disinfect his hands and his steering wheel before transporting the child, when the child was younger. The mother says this was reasonable at the time as the father had been working with sewage in the garden.

92 I have already referred to a number of other examples. I am particularly

concerned about the parties involvement of the Police, and the mother’s involvement of the Department of Child Protection in situations where it has not been necessary or desirable.

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

93 There has been no physical violence involving the child or a member of the

child’s family. While the child has suffered minor injuries they certainly are not as a
result of family violence.

(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;

94 After [the child]’s second birthday party, the father took offence at some alleged

abusive comments made to him by [The mother’s mother], and filed an application for a misconduct restraining order. There had been an argument over moving a table. The application was later withdrawn.

95 He attempted to file a misconduct restraining order summons against the mother

on 14 September 2007, which application was dismissed. The application arose from
the incident on 23 August 2007, to which I have already referred.

96 It is obvious that both actions were unnecessary and inappropriate in the

circumstances.

[2008] FCWA 33

(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 children;

97 Obviously, it would be desirable for there not to be further proceedings between

the parties, but I do not consider any order I make is more or less likely to lead to further proceedings. I consider it inevitable there will be further proceedings because of the parties’ respective attitudes, although I have attempted to provide a mechanism, through supervision of the orders, to reduce the likelihood of this occurring.

(k) any other fact or circumstance that the Court thinks is relevant;

98 Any other fact or circumstance will be referred to subsequently.

99 Section 60CC(4) of the Family Law Act 1975, provides that the Court must also consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent:

(4)	Without limiting paragraphs 60CC(3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

(b)

has facilitated, or failed to facilitate, the other parent:

(i)	participating in making decisions about major long-term issues in relation to the child; and
(ii)	spending time with the child; and
(iii)	communicating with the child; and

(c)

has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

100 The mother’s position was that the father had not initially fulfilled all his

responsibilities as a parent, but he has become more involved as a parent. The father’s position was that the mother had attempted to limit his involvement but it had gradually increased.

101 The issue of child support was a vexed one between the parties. At trial, the

father was assessed to pay child support at $265 per month, a fairly modest amount.

[2008] FCWA 33

The mother’s evidence was the father had made it clear he had tailored the extent to which he worked to affect his child support obligations and he had in fact, told her, in a phone message, on 29 March 2006, that he was not going back to work full time ever until he has shared care of [the child].

102 The father has pursued child support proceedings, and at the time of trial, there

was a hearing pending in the Social Security Appeals Tribunal. He had, in the past, sought a set off for the cost of a $10 haircut he had provided for the child, and $60 spent on petrol in transporting the child when the mother was too ill to travel. This did him no credit.

103 The child support situation has been complicated by the parties making

significant capital gains from their property development, and while the child has been properly maintained because of the parties’ respective reasonable financial positions I accept the father’s attitude to his obligations in this regard, has not been reasonable, and the increased pressure placed on the mother by pursuit of minor child support issues is not to his credit.

Conclusion

Equal shared parental responsibility

104 Section 61DA of the Act provides as follows:

(1)	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.
(2)	The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)	abuse of the children or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)	family violence. …

(4) 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.

105 I do not accept there are reasonable grounds to believe that a parent of the child

(or a person who lives with a parent of the child), has engaged in abuse of the child or
a member of the parents’, or other person’s family, or family violence.

106 The mother’s position was she should have sole parental responsibility because

of the poor relationship between her and the father, and because she has always been
the child’s primary caregiver.

[2008] FCWA 33

107 The father claims there is no reason why he should not be as much involved as

the mother.

108 It is a matter of concern that, while the parties have something in common as

parents in that they live on the same street, with a semi-rural lifestyle, their personalities and parenting styles are very different, and there has, therefore, been ongoing conflict between them.

109 Both parties have a religious background, being involved in [a particular religion] during the relationship, but the father has since become estranged from the Church, partly because the mother still attends.

110 There is an ongoing dispute between the parties as to the kindergarten, pre-

primary and primary school to be attended by the child. It seems likely there may
need to be future judicial determinations in this regard.

111 Despite this, I am not satisfied that it would not be in the best interests of the

child for his parents to have equal shared parental responsibility for him. Both parties are very child focused, and very actively involved in his care and this is likely to continue. I am not satisfied that, while a committed and caring mother, the mother’s decisions about significant issues are necessarily really in [the child]’s interests – for example, her lack of acceptance that kindergarten education was important for him. In these circumstances, I am satisfied they should have equal shared parental responsibility, but they should have professional assistance in attempting to resolve disputes if they occur. It is accepted that this may mean that further court intervention may be required.

The parenting arrangements – equal shared care

112 Section 65DAA of the Family Law Act 1975 provides:

Equal time

(1)  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:

(a)	consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)	consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)	if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

(2) If:

[2008] FCWA 33

(a)	a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)	the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c)	consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)	consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)	if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3)	For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends or holidays; and

(b)

the time the child spends with the parent allows the parent to be involved in:

(i)	the child’s daily routine; and
(ii)	occasions and events that are of particular significance to the child; and

(c)

the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

113 Subsection (3) does not limit the other matters to which a court can have regard

in determining whether the time a child spends with a parent would be substantial and
significant.

114 In determining for the purposes of subsections (1) and (2) whether it is

reasonably practicable for a child to spend equal time, or substantial and significant
time, with each of the child’s parents, the court must have regard to:

[2008] FCWA 33

(a)	how far apart the parents live from each other; and
(b)	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
(c)	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
(d)	the impact that an arrangement of that kind would have on the child; and
(e)	such other matters as the court considers relevant.

115 The mother’s position was:

“Mother has ongoing concerns about [the child]'s health, safety and well being and about the Father's motivations for wanting shared care and 6 weeks school holiday contact. Despite this as the Mother has Christian beliefs, the Mother has agreed to increasing contact for the Father with [the child] and continued to encourage [the child]'s relationship with his Father. However, I still believe that:

(a)	[the child] is too young for the level of contact that his Father is proposing and that it is not in [the child]'s best interests to award shared care to his Father at this time;
(b)	ongoing communication problems with and lack of co-operation by the Father make it unreasonable and impractical for shared care to work;
(c)	the degree of conflict through various court processes and hurtful and emotionally abusive actions taken by the Father does not foster a harmonious relationship with the Mother and makes it unreasonable to expect shared care to work;
(d)	concerns about the Father's lack of supervision of [the child], history of not seeking medical attention for [the child] and other welfare issues demonstrate that the Father's behaviour is not conducive to a shared care or week about regime at this time.”

116 The mother believes that one of the father’s motivations for wanting shared care

of the child was that it would force the mother to go back to work. The mother’s position was that she was unable to obtain regular work, but she relocated to [the Regional centre] with [the father]’s work as a teacher “as I had employers telling me that I was over qualified. Life’s circumstances also contributing including my medical situation”. The mother’s evidence is that the father has threatened not to go back to full time work ever unless he has shared care of the child.

117 The father’s position was that [the child] is now old enough for equal shared

care to be in his best interests. His attitude appeared to be that this was the father’s

[2008] FCWA 33

right, and this was borne out by his unpleasant response to hearing that I was not
prepared to grant equal shared care at this time.

118 Obviously, the parties live close enough to each other for equal shared care to be reasonably practicable.

119 The parents have the capacity to implement an equal time arrangement.

120 They have a very limited capacity to communicate with each other and resolve

difficulties that may arise in implementing an equal shared care arrangement, but this
applies to virtually any care arrangement they may have.

121 While both parties are very good parents but with different parenting styles, I

have already indicated that both are deservedly subject of criticism principally because both, in different ways have inflamed the situation contrary to [the child]’s interest. The mother has been overprotective and has found it difficult to adjust to [the child] being separated from her. She has been prepared to, I consider, genuinely but unjustifiably, raise concerns about sexual abuse and maltreatment and lack of care of the child, obviously, believing she was protecting the child, and this has worsened the working relationship between the parties. The mother and [the child] have had to come to terms quite quickly with the father’s remarriage, and his new family and, understandably, she has had some difficulty in dealing with the situation. However, [the mother] is a loving and, generally, competent parent who has been the child’s primary caregiver during his short life.

122 The father is also a committed and caring parent who has, also understandably,

having regard to some of the mother’s actions, felt that he has had to struggle to maintain and develop his relationship with the child. However, he has been prepared to show no compassion or consideration to the mother, having regard to the fact that he had moved on from the relationship even prior to [the child]’s birth, and the fact that [the mother] is a single mother feeling somewhat isolated, especially since his remarriage. He has made matters worse by his attitude, in particular, for example, in instituting the restraining order application and in his approach to child support – many of his actions have unnecessarily increased the pressure on the mother, and have nothing to do with [the child]’s welfare. Understandably, the father promotes the interests of his present family, but my concern must be really only for [the child], and the parties.

123 I have concluded that an equal shared care arrangement because of the child’s

young age, may have a detrimental effect on him at this time as separating him regularly for too long from his mother, but the position will probably change as he grows older. I accept that it is in the child’s interest to spend substantial and significant time with his father, and that there should be a further gradual extension of the time to be spent with his father, from 4 nights per fortnight to 5 nights, during school terms. The position should be further considered in about a year’s time when the child is attending school. It has been appropriate having regard to the conflictual history of the relationship and the gradual increase in the time the father has spent with the child, for this to be only slightly extended at this time.

[2008] FCWA 33

124 As to the specific arrangements, the mother sought to reduce the father’s time

with the child to commence on Thursday at 5pm, rather than first thing in the morning as had been the case for some time. This was because last year the father was working on Thursdays, and it was [M] who was caring for the child. The father sought to spend equal time with [the child] from Tuesday to Thursday in one week and Tuesday to Sunday on the other week. His evidence was that, this year, he planned to be working Monday, Tuesday and Wednesday mornings.

125 This ties in with the issue of [the child]’s kindergarten attendance to which I

have already referred. The father was proposing that this year [the child] attend the [local] Community Kindergarten two days per week, and the mother when pressed, proposed one day at the two different venues.

126 With kindergarten and soon school commencing, it is necessary to make

allowance for weekends, so both parents can have clear weekends with [the child] for
activities and to go away if they wish.

127 I therefore concluded that it is obviously in [the child]’s interest to spend time

with his father when he was not working, and that [the child] spend two days in one
week with his father, and 3 days in the following week, to include the weekend.

128 The parties should equally share school holidays – the mother proposed the

usual weekly arrangements should continue during holidays with each parent to have two weeks clear to go away on holidays. [The child] is old enough to regularly be away from each parent for more substantial periods during school holidays.

129 As to Christmas Day the mother proposed that the father have the first and

second half of Christmas in alternate years, and the father just referred to the mother having the Christmas Eve and Christmas Day in 2007. I made orders for the father to have [the child] from 5pm Christmas Day in 2007. In future, I accepted there was no reason not to alternatively share the first and second half of Christmas Day.

130 Both parties proposed a suspension of the other parties’ time on Mother’s and Father’s Day, so this was not problematic.

131 Obviously, each parent should predominantly have the child with them on their

own birthday and spend some reasonable time with [the child] on his birthday. I have been informed by the family consultant that problems arose on the child’s birthday this year because it fell on a handover day – it seems the parties are still not able to communicate sensibly.

132 In relation to kindergarten and school attendance, I am satisfied it is in [the

child]’s best interests to attend kindergarten to socialise with other children, and that this should be for at least two days per week. Having regard to the history of the parenting arrangements, with the mother being the primary caregiver, she should select the child’s kindergarten and pre-primary school but it should be fairly close to her home.

133 However, the father is to be involved in the decision making as to the child’s

primary school.

[2008] FCWA 33

134 I consider it likely there will be further dispute between the parties in this regard,

so I provided a mechanism for this to be resolved prior to the commencement of
school.

135 Both parties should ensure the other is informed and contactable if the child is

staying away from them overnight. The father attempted to limit each parent’s telephone contact when the child is away from them – I concluded that once daily contact at reasonable times is appropriate but not too close to bedtime.

136 I accept the mother’s position that generally the father himself should be

available to spend time with [the child], so, for example, there is no reason for [the child] to stay with [M] for the day, on a regular basis, if he is at work, as was the case on Thursdays last year.

137 The parties must keep each informed of significant medical issues and events by

communication book, email or telephone. They must give each other substantial notice of any plans to change their place of residence to give ample opportunity for a variation of the parenting arrangements if necessary.

138 The parties are likely to have ongoing problems in communicating because of

their different personalities and parenting styles. The parenting orders are to be
supervised by a family consultant for the next two years.

I certify that the preceding [138] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate