OBELINK & MESSINA

[2019] FamCA 634

FAMILY COURT OF AUSTRALIA

OBELINK & MESSINA [2019] FamCA 634

FAMILY LAW – CHILDREN – Best interests – parental responsibility – where the mother seeks sole parental responsibility or sole parental responsibility in respect of education and health – where the father seeks equal shared parental responsibility – where high level of conflict between the parties and the parties unable to cooperate – where evidence that the child has been significantly affected by conflict between the parties – orders for equal shared parental responsibility save for the mother to have sole parental responsibility in respect of education and health.

FAMILY LAW – CHILDREN – Best interests – spend time arrangements for the child – where the parties agree that the father should have alternate weekends and half of all school holidays however disagree as to how soon this should occur – where the parties live a significant distance apart and the child about to commence school – orders made as to spend time arrangements.

Family Law Act 1975 (Cth)

Poisat & Poisat (2014) FLC 93-597
Donnell & Dovey (2010) FLC 93-428
Mulvany & Lane (2009) FLC 93-404
U v U (2002) 211 CLR 238

APPLICANT: Ms Obelink

RESPONDENT: Mr Messina

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: DGC 944 of 2015

DATE DELIVERED: 12 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 6-8 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Marshalls + Dent + Wilmoth

COUNSEL FOR THE RESPONDENT: Mr Hoult

SOLICITOR FOR THE RESPONDENT: Taylor Splatt & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

By consent

1. The child B born … 2014 ("B") live with the mother.

2. The mother be permitted to register B’s name with the Victorian Registry of Births, Deaths and Marriages as B Obelink-Messina, at her expense.

3. B attend F Primary School commencing 2020.

4. The mother be permitted to take B to speech pathology at G Medical Centre.

It is ordered

1. The mother and the father have equal shared parental responsibility for B, save that decisions relating to B’s education and health be made solely by the mother, the mother notify the father of her decisions in relation to these matters, and the mother is permitted to provide a copy of this Order to any school B attends.

2. For the balance of term 3 2019, B spend overnight time with the father after kindergarten on Tuesday 17 September, returning to the mother by 5:00pm on Wednesday 18 September.

3. B spend the middle weekend of the September 2019 school holidays, from Friday afternoon until Sunday afternoon, returning to the mother by 5:00pm Sunday, or as otherwise agreed in writing.

4. For the balance of term 4 2019, B spend overnight time with the father on Tuesday nights, returning to the mother by 5:00pm on the Wednesday, save that on the weekend of 22-24 November 2019 (Ms A’s 70^th birthday weekend) B spend from after kindergarten on Friday 22 November with his father until Sunday afternoon, returning to the mother by 5:00pm Sunday.

5. During the summer vacation of 2019/2020, B live with the mother but spend time with the father from 2:00pm Tuesdays, returning to the mother by 5:00pm on Thursdays.

6. Once B commences school in 2020, he spend time with the father as follows:

   During School Terms

   (a)commencing on 31 January 2020 and each alternate weekend thereafter, from the conclusion of school on Friday (or 3:30pm if not a school day) until 5:00pm Sunday;

   During School Holidays

   (b)for one half of each school term holiday period, being the first half in even years and the second half in odd years;

   (c)in the long summer holiday period in 2020/21 and each long summer holiday period thereafter, half of the school holidays from the conclusion of school on the last day of term until 5:00pm on the middle day in even years (excluding Christmas) and from 10:00am on the middle day of the school holidays in odd numbered years until 4:00pm 48 hours prior to the day school commences;

   (d)for the avoidance of doubt, the time in paragraph 10(a) be suspended during all school holiday periods, unless otherwise specified;

   (e)there be any and additional time as may be agreed between the parents from time to time, save that such agreement must be recorded in writing.

7. B be permitted to communicate with the mother or the father by telephone or FaceTime when in the care of the other parent and failing agreement at 5:00pm on Monday, Wednesday and Saturday.

8. For the purposes of celebratory occasions, B will spend time with both parents during celebratory occasions at times to be agreed and in the absence of agreement:

   (a)for Christmas, noting that the usual spend time arrangements are suspended from 2:00pm Christmas Eve:

   (i)in 2019 and each alternate year thereafter:

   A.B spend time from 2:00pm Christmas Eve until 2:00pm Christmas Day with the father; and

   B.B spend time from 2:00pm Christmas Day until 2.00pm Boxing Day with the mother;

   (ii)in 2020 and alternate years thereafter:

   A.B spend time from 2:00pm Christmas Eve until 2:00pm Christmas Day with the mother; and

   B.B spend time from 2:00pm Christmas Day until 2.00pm Boxing Day with the father;

   (b)on B's birthday:

   (i)if it is a kindergarten/school attendance day, B spend time with the father, if not already scheduled to spend time with him that day pursuant to these Orders, from the conclusion of kindergarten/school until 6:00pm in the Region 1 area;

   (ii)if it is not a kindergarten/school attendance day, B spend time with the father, if not already scheduled to spend time with him that day pursuant to these Orders, from 10:00am to 1:00pm in the Region 1 area;

   (iii)if B's birthday falls on a Saturday when in he is in the father's care, B spend time with the mother from 10:00am to 1:00pm in the Region 2 area;

   (iv)if B's birthday falls on a Sunday when he is in the father's care, the father return B to the mother at 3:00pm.

   (c)on the mother’s birthday, if it falls on a Saturday when B is in the father’s care, B spend time with the mother from 11:00am to 3:00pm in the Region 2 area and if it falls on a Sunday when B is in the father's care, the father return B to the mother at 3:00pm;

   (d)on the father's birthday, if B is not already scheduled to spend time that day with the father pursuant to these Orders, then B spend time with the father, to take place in the Region 1 area:

   (i)if it is a kindergarten/school attendance day  from the conclusion of kindergarten/school (whichever is the later) until 6:00pm;

   (ii)if it is not a kindergarten/school attendance day for B, from 10:00am to 1:00pm;

   (e)for the purposes of celebrating Mother’s Day, B spend time with the mother from 10am Mother’s Day until 5pm Mother’s Day, and if such time falls during B's time with the father that the father's time be suspended;

   (f)for the purposes of celebrating Father's Day, B spend time with the father from 10:00am Father's Day until 5:00pm Father's Day, and if such time falls during B's time with the mother that the mother's time be suspended.

9. For the purposes of time during the school holidays pursuant to these Orders:

   (a)to calculate half of the school term holidays commencing in the term 1 school holidays in 2020, the first day of the school term holidays is the first Saturday following the conclusion of school commencing at 10:00am and the last day of the school term holidays is the Sunday before school commences at 5:00pm, in the event there is an odd number of nights, the father has the additional night in odd years and the mother has the additional night in even years;

   (b)for the avoidance of doubt, from the term 1 Easter school holidays in 2020, all school term time will be suspended during all school holiday periods unless otherwise specified;

   (c)B's time during the school terms following school term holidays will resume with the parent having had the first half of the school holidays having the first weekend on the resumption of the school term.

10. For the purposes of changeover:

    (a)­where possible, the father will collect B from kindergarten/school at the commencement of B's time with him, and if this is not possible then from the mother's home; and

    (b)the father will return B to the mother's home at the conclusion of B's time with him.

11. The father is restrained from recording (audio and/or visual recording) changeovers and/or interactions with the mother, and from instructing or directing someone else to do so.

12. Each party by themselves or their servants and agents, be restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other to, or in the presence of, or within the hearing of, B and allowing B to remain in the presence, or within the hearing of, any third party engaging in such behaviour.

13. In the event that the father does not sign all necessary documents to obtain an Australian Passport for B within 14 days of a request by the mother, the mother, Ms Obelink born … 1981, be permitted to obtain an Australian passport for the child, B Obelink-Messina born … 2014, without the need to obtain the consent of the father, Mr Messina born … 1976, and it is requested that the Department of Foreign Affairs and Trade give effect to this Order.

14. The mother be permitted to provide a copy of this Order to the Department of Foreign Affairs and Trade.

15. Each of the mother and father shall provide to the other written notice of their intention to travel with B overseas 28 days prior to the proposed date of departure and such notice to include:

    (a)B's itinerary;

    (b)the particulars of B's flight, including airline carrier, departure and arrival times;

    (c)a copy of B's airline ticket;

    (d)particulars of B's accommodation;

    (e)a contact number that B can be contacted on.

16. The mother will provide B's passport to the father at least 48 hours prior to the date of intended travel, and the father will return the passport to the mother within 48 hours of his return, and the mother will otherwise cooperate with the father as to the obtaining of any visa.

17. Each of the mother and father will:

    (a)be at liberty to receive all correspondence, notices, newsletters, reports, forms, school photographs and any other material relating to B and the mother will take all necessary steps to authorise that the same is provided to the father;

    (b)attend all school events to which parents are invited throughout the kindergarten/school year including but not limited to concerts, presentations, sports and cultural days and carnivals and fundraising activities such as fetes and including parent teacher interviews if the school can accommodate separate interviews for the parents;

    (c)notify the other as soon as reasonably practical of any serious injury, illness, medical condition or treatment involving B whilst in that parent's care and provide details of any treating medical practitioner/health professional, medical clinic/hospital;

    (d)keep the other informed of their residential address and telephone number and advise the other party of any change of address within 48 hours of such change.

18. The mother and father do all acts and things to enrol the child into F Primary School for his primary education commencing in 2020.

19. In the event that the mother organises or arranges counselling or any other mental health intervention for the child, she advise the father of the details of that counselling or intervention and the father shall be permitted by this Order to be involved in the counselling or intervention subject to the discretion of the counsellor or person providing the intervention and subject to the father bearing the cost of his individual involvement in that process.

20. In the event that the mother arranges counselling or any other mental health intervention in accordance with the preceding Order, either parent is permitted to provide to the counsellor or person providing the intervention copies of all professional reports commissioned in these proceedings and a copy of this Order.

21. In the event that the Counsellor or person providing the counselling to mental health intervention for the child exercises his or her discretion not to involve the father in the process undertaken, the father shall be permitted pursuant to this order to obtain information in writing from the counsellor or person providing the intervention at his expense if any.

22. The mother and father be restrained from using any name other than B Obelink-Messina for B on any official document or record including but not limited to matters pertaining to his health, travel, education, and religion.

23. In the event that either parent issues an application for Parenting Orders or an Enforcement or Contravention Application in respect of B within the next 36 months the application be listed, if practicable, before the Honourable Justice McEvoy.

24. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the annexure to this order and those particulars are included in these orders.

The court notes

B has school orientation on Wednesdays 6 November 2019, 13 November 2019 and 20 November 2019.  The father will deliver B to the mother at her home at 10:00am on each Wednesday, and collect him from the conclusion of the orientation session from the mother's home.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Obelink & Messina has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC944/2015

Ms Obelink

Applicant

And

Mr Messina

Respondent

REASONS FOR JUDGMENT

introduction

1. The parties in this case are parents to the one child, B (“the child”), born in 2014 and currently almost five years of age. Parenting arrangements for the child are in issue: particularly parental responsibility, live-with, and spend-time arrangements.

2. The father and mother separated when the child was very young and the child has been the subject of ongoing litigation for most of his life. Notwithstanding orders made by consent in the Federal Circuit Court on 1 October 2015, litigation between the parties has continued. It has been characterised by a high level of conflict, and an apparent inability on the part of both the parents to work cooperatively and in the best interests of the child.  

3. The genesis of this particular iteration of the proceedings was the mother’s Initiating Application filed in the Federal Circuit Court on 1 February 2017. The matter was transferred to this Court on 15 June 2018, and ran as a three day matter from 6 May 2019 to 8 May 2019. The parties, including the Independent Children’s Lawyer, provided written submissions and proposed orders successively in the weeks after the proceeding had concluded.

4. Many issues which were in dispute between the parties at the commencement of the trial were resolved during the running, both parties having made a number of concessions. Initially it was the mother’s position that she should have sole residence of the child and that the child should spend no time with the father until such time as the child’s mental health practitioner recommended it. The father’s position was, in essence, the reverse of this – that is, that the child live largely with him. The father did, however, seek that the child spend time with the mother, for three out of four weekends from after school Friday until 5:00pm Sunday and half of all school holidays.

5. These competing positions reflected the conclusions of Mr D, a child psychologist with whom the parties and the child have had significant involvement. In a report dated 13 June 2018 Mr D had expressed the view that, due to the level of conflict between the parties and his grave concerns for the child’s emotional wellbeing, in the immediate future the child would need to reside solely with one parent. Mr D considered that for a significant period the child would have to have restricted or no contact with the other parent in order to allow the child to regulate emotionally.  

6. However Mr D saw the parties and the child again, only a few days before the trial commenced. After this consultation he modified his views substantially, concluding essentially that the child’s emotional presentation had improved significantly and that, in these circumstances, it may be in the best interests of the child to normalise his time with his father by moving to overnight and weekend time.

7. It was, presumably, on the basis of Mr D’s modified views that the parties recalibrated their own positions, to such an extent that the father accepted that the child should live with the mother and that the child’s surname (the father’s) should be changed to incorporate the mother’s surname also. The father also conceded the mother’s choice of primary school, and that the child should have speech pathology. In the face of the parties’ changed positions, there were ultimately only two substantive matters to be determined. They were:-

   a)first, whether it is in the best interests of the child that the parties have equal shared parental responsibility for him, or whether the mother should have sole parental responsibility; or, as a variant of this, whether both parents should have equal shared parental responsibility save that decisions relating to the child’s education and health should be made solely by the mother; and

   b)secondly, how much time the child should spend with the father, particularly in light of the geographical distance between the parties, and at what rate any increase in time should occur.

8. For the reasons which follow there will be orders that the mother and the father have equal shared parental responsibility for the child, save that decisions relating to his education and health be decided solely by the mother, with appropriate safeguards to ensure the father’s ongoing involvement in these aspects of the child’s life. There will also be orders providing for a movement to the child spending overnight time with the father and, in time, more significant overnight time.

Background

1. The mother is 37 years of age, and is studying for a law degree on a part time basis. She lives in Town J in Region 1 with the maternal grandparents and the child. The mother deposes that she receives government benefits, nominal child support from the father (assessed at $22.69 per week from 5 April 2019), and is otherwise reliant on her parents for assistance.

2. The father is 42 years of age. He is a consultant and lives in Town H which is in Region 2, with his new partner.

3. The parties commenced cohabitation in December 2013 and separated in February 2015 when the child was 12 weeks old. They did not marry. Following separation the child has lived with the mother and maternal grandparents, and has spent time with the father pursuant to orders of the Court. 

4. It is common ground that the parties resided in Region 1 during their relationship, with the mother moving to Region 2 with the child following separation to live with her parents. Thereafter the father also moved to Region 2 to be closer to the child.

1. Pursuant to orders made by Macmillan J on 13 February 2019, the mother was permitted to relocate to Town J in or around February 2019 with the child and the maternal grandparents. The maternal grandparents desired to relocate to care for an elderly family member. The mother remains living in Town J with the child, where he attends kindergarten three days per week: Tuesday from 8:30am until 3:30pm, Thursday from 12:45pm until 4:15pm, and Friday from 8:30am until 1:30pm. The father remains in the Region 2 area.

2. Since the commencement of proceedings the child has had limited time with his father and has not been having overnight time. At the time of the hearing the current arrangements for the child were that he was living with the mother and spending time with the father every Wednesday from 9:00am until 4:00pm.

3. There has been significant involvement by child mental health professionals in this matter. They have all expressed grave concerns about the child’s ability to cope with the existing level of conflict between his parents. A significant dispute between the parties has centred on the child’s apparent presentation of distress, with the mother reporting significant behavioural symptoms of anxiety. The father, on the other hand, has continued to report that the child was happy, and settled in his care.

History of Proceedings

1. The father originally commenced proceedings by way of an Initiating Application filed in the Federal Circuit Court of Australia on 7 April 2015, shortly following separation. Final parenting orders resolving the father’s application were made by consent of the parties on 1 October 2015 by Judge Curtain (“2015 Orders”). These orders provided for, amongst other things, the parties to have equal shared parental responsibility, the child to live with the mother, and the child to spend time with the father on a gradually increasing basis.

2. The father filed contravention applications against the mother on 23 December 2015 and 21 March 2016, alleging that the mother had refused to allow the father to spend time with the child. These contravention applications were repeatedly adjourned, prior to their withdrawal by the father on 15 February 2017.

3. On or about 23 December 2016 the mother suspended the child’s time with the father in response to what she describes in her affidavit filed 21 January 2019 (“mother’s Trial Affidavit”) as increasingly concerning behavioural symptoms shown by the child following or leading up to time with the father, and the father’s “behaviour and misunderstanding of advice”. Unsurprisingly, in the father’s affidavit filed 4 March 2019 (“father’s Trial Affidavit”) the father disputes this characterisation of events.

4. On 1 February 2017 the mother filed a new Initiating Application in the Federal Circuit Court seeking, amongst other things, that the child’s time with the father pursuant to the 2015 Orders be suspended until further order. The father responded seeking that the mother’s application be dismissed and that the 2015 Orders remain in full force and effect.

5. On 15 February 2017 interim orders were made with the consent of the parties suspending the spend-time arrangements pursuant to the 2015 Orders and providing, amongst other things, for the child to spend time with the father on an increasing basis,  building up to the following fortnightly cycle:

   a)in week 1 on Monday, Wednesday and Saturday from 9:00am – 4:00pm on each occasion;

   b)in week 2 on Sunday, Tuesday and Friday from 9:00am – 4:00pm on each occasion.

   These orders also provided that the parties do all things necessary to facilitate the child’s continued attendance on Dr E and that the parties attend upon a therapist as recommended by Mr D for the purposes of unreportable therapeutic counselling to “address their interpersonal dynamic and communication”.

6. On 9 June 2017 interim orders were made with the consent of the parties suspending the father’s time with the child for a period of one month, and thereafter providing that the father and the child spend each Wednesday together from 9:00am until 1:00pm for a period of two months, and thereafter each Wednesday from 9:00am until 4:00pm. These orders provided for the child to continue to attend upon Dr E.

7. On 11 December 2017 interim orders were made with the consent of the parties providing for the child to continue to spend time with the father from 10:00am until 4:00pm each Wednesday. The orders further provided for the parties and the child to continue to attend upon Dr E for therapeutic treatment, and each party comply with her reasonable recommendations for therapeutic treatment and in relation to further time spend arrangements between the child and the father.

8. On 15 June 2018 the matter came back before Judge Curtain for mention. His Honour made orders transferring the matter to this Court to be listed with priority.

9. On 24 August 2018 Johns J acceded to the parties’ joint application for an expedited hearing date on the basis that an expedited trial may protect the child from serious emotional or psychological trauma or limit such trauma in accordance with r 12.10A(4)(g) of the Family Law Rules 2004 (Cth) (“the Rules”).

10. On 8 February 2019 the matter came back before the Court for the hearing of the mother’s Application in a Case filed 1 February 2019 seeking orders that she be allowed to relocate back to the Region 1 with the child and the maternal grandparents. On 13 February 2019, Macmillan J made orders acceeding to the mother’s request on an interim basis.

Proposals of the Parties

1. As has been mentioned, although at the commencement of the hearing on 6 May 2019 the parties were diametrically opposed in their positions, both seeking that they have primary residence of the child, by the conclusion of the evidence a degree of convergence had occurred.

2. At the conclusion of the hearing the parties and the Independent Children’s Lawyer provided written submissions, which included competing minutes of orders sought: the Independent Children’s Lawyer on 17 May, 2019, the mother on 27 May 2019, and the father on 6 June 2019. With respect to the more substantive matters, there seems to be agreement that the child should live with the mother in Town J, that the mother should be able to register the child’s surname as ‘Obelink-Messina’, that the child should attend a speech pathologist, and what school the child should attend. As to the outstanding issues, there was disagreement as to whether there should be shared parental responsibility for the child or whether the mother should have sole parental responsibility, what time the child should spend with the father, and how the time spend arrangements should progress, particularly in the next six months prior to the child starting school.

3. The father submitted that the parties should have equal shared parental responsibility for the child. The mother on the other hand submitted that she should have sole parental responsibility or, in the alternative, that the parties should have equal shared parental responsibility for the child save that she should be solely responsible for decisions relating to the child’s education and health. The Independent Children’s Lawyer submitted that the mother should have sole parental responsibility.

4. Both the mother and the Independent Children’s Lawyer submitted that until the child commences school in 2020, the child should spend time with the father each week from the conclusion of kindergarten Tuesday at 3:00pm until 5:00pm on the Wednesday. This arrangement was proposed by them to continue during kindergarten holidays, including over the 2019/2020 Christmas vacation. The Independent Children’s Lawyer submitted that although this regime might be thought by the father to be progressing too slowly to equal time during the holidays, it was more important to focus on the long-term viability and success of the proposed orders, and this required incremental steps.

5. The father’s position, on the other hand, was that there should be a period of four weeks from the making of orders where the child would spend time with him from the conclusion of kindergarten Tuesday at 3:00pm until Wednesday at 3:30pm, but thereafter, until the child commences school in 2020, the father should have the child from the conclusion of kindergarten Tuesday at 3:00pm until the start of kindergarten Thursday at 12:45pm. During kindergarten holidays for the balance of 2019 it was the father’s proposal that:

   a)for the second term kindergarten holidays (now past), he would have the child from the last day of  kindergarten at 3:00pm until Monday 12:00pm in week one, and for week two of the holidays;

   b)for the third term kindergarten holidays, he would have the child for half of the kindergarten holidays and failing agreement the first half from the last day of  kindergarten at 3:00pm until the middle day at 12:00pm; and

   c)for the long summer holidays 2019/2020, he and the mother would have the child week about, with him having the child from after kindergarten Friday 3:00pm to the following Friday 3:00pm and the last day of the long summer holidays will be the Sunday before school commences at 4:00pm.

6. There was also a difference in the proposals of the parties and the Independent Children’s Lawyer for spend time arrangements once the child is at school, both during term and school holidays. The mother and the Independent Children’s Lawyer sought that during the school term the child spend alternate weekends with the father, from the conclusion of school on Friday (or 3:30pm if not a school day) until 5:00pm Sunday. The father sought that there be a fortnightly arrangement as follows: in the first week, he spend time with the child from the conclusion of school Friday (or 3:30pm if not a school day) until the commencement of school Monday (or 4:00pm if not a school day); and in the second week, from the conclusion of school Tuesday (or 3:30pm if not a school day) until the commencement of school Wednesday (or 3:30pm if not a school day). In the alternative, the father said he should have the child three out of four weekends, from the conclusion of school Friday (or 3:30pm if not a school day) until Sunday at 3:30pm.

7. All parties, including the Independent Children’s Lawyer, proposed that the child should spend half of the school holidays with the father, albeit the Independent Children’s Lawyer and the mother submitted that they should build up to this arrangement during the course of 2020, with the child eventually spending half of the third term 2020 holidays with the father, and half of the long summer holidays 2020/2021 on a week-about basis. The father, on the other hand, says the child should spend half of school holiday time with him commencing during term one holidays. He also says that during the long summer holidays in 2020/2021, and thereafter, time should be in two larger blocks rather than on a week about basis.

8. The final noteworthy difference in the proposals of the parties is that both the father and the Independent Children’s Lawyer submitted that the mother and father be at liberty to attend all kindergarten and school activities for the child. The mother’s minute of orders, on the other hand, was silent as to this.

9. Having regard to the convergence in the parties’ positions that has occurred, the central controversy to be resolved is whether or not there should be equal shared parental responsibility (or some variant of it) and what the time spent arrangements with the father should be. Although both parties rely on extensive evidential material which is directed to various issues, all the material must be considered through the lens of what the parties now seek. It will be apparent that, viewed from this perspective, much of the affidavit evidence filed by the parties is of less significance than it would have been had the parties maintained their original positions.

Material Relied Upon

1. The mother relied upon the following documents:        

   a)Further Amended Initiating Application filed 21 January 2019;

   b)mother’s Trial Affidavit filed 21 January 2019;

   c)Affidavit of Mr L Obelink filed 21 January 2019;

   d)Affidavit of Ms M Obelink filed 21 January 2019;

   e)Affidavit of the mother filed 18 March 2019;

   f)Affidavit of Mr D filed 19 January 2019;

   g)Affidavit of Dr E filed 3 April 2019;

   h)Affidavit of Mr D filed 12 April 2019.

2. In addition to those documents, the mother relied upon certain documents tendered during the course of the trial.

3. The father relied upon the following documents:

   a)Further Amended Response to Initiating Application filed 15 March 2019;

   b)father’s Trial Affidavit filed 4 March 2019;

   c)Affidavit of Dr N filed 4 March 2019;

   d)Affidavit of Ms O filed 4 March 2019;

   e)Affidavit of Dr P filed 4 March 2019;

   f)Affidavit of Ms Q filed 4 March 2019;

   g)Affidavit Ms R filed 4 March 2019;

   h)Affidavit of Ms S filed 4 March 2019;

   i)Affidavit of Mr T filed 4 March 2019;

   j)Affidavit of Mr D filed 19 January 2019;

   k)Affidavit of Mr D filed 12 April 2019;

   l)Report of Dr U dated 13 November 2017.

4. The Independent Children’s Lawyer relied upon the following documents:

   a)Affidavit of Mr D filed 12 April 2019;

   b)Affidavit of Dr E filed 3 April 2019;

   c)Affidavit of Mr D filed 29 April 2019;

   d)Affidavit of Mr D filed 8 December 2017;

   e)Affidavit of Dr U filed 4 December 2017.

Relevant Principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) is concerned with children. The paramount consideration when making a parenting order is the best interests of the child the subject of the proceedings: s 60CA of the Act. Section 60B(1) of the Act sets out the objects of Part VII, which 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 child; and

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

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

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. The principles underlying those objects are outlined in s 60B(2) of the Act. They are that, unless it would be contrary to the best interests of a child:-

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

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

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

   (d)parents should agree about the future parenting of their children; and

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

3. Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. The Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order. When determining what is in the best interests of the child the relevance of the primary and secondary considerations and the weight to be given to them will depend upon the particular circumstances of each case: Poisat & Poisat (2014) FLC 93-597 at [34].

4. As to the manner in which the Court is to take those considerations into account, in Donnell & Dovey (2010) FLC 93-428 the Full Court said that the considerations may be seen as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion” (at [103]). In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed at [76] – [77] as follows:-

   It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered.  Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant).  However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.

   It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…

   (Original emphasis)

5. As the High Court observed in U v U (2002) 211 CLR 238, the Court’s power in making a parenting order is to make orders it considers to be in a child’s best interests and it is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44] and Hayne J at [169]-[171] agreed).

6. Subject to the Court making an order changing the statutory conferral of joint parental responsibility, s 61C of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence: s 61DA of the Act. That presumption will not apply if there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the child (or other relevant child) or where the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.

7. When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with both parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable for the child to spend “substantial and significant time” with each of the parents (s 65DAA(2)).  

8. The parties having reached substantial agreement it remains for the court to decide, consistently with the statutory regime and on the basis of the evidence, whether or not equal shared parental responsibility (or some variant of it) should be ordered, or whether the mother should have sole parental responsibility, and what the time spend arrangements should be.

The evidence

Evidence adduced by the mother

1. The central area of disagreement between the parties, and the focus of the experts’ consideration, was the extent to which the child was presenting with symptoms of emotional distress. The mother’s Trial Affidavit addressed this issue at length, providing numerous examples of her own observations concerning the child’s behaviour, the involvement of the Department of Health and Human Services, her own observations of the child’s mental health, material relating to the proposed change of name, material relating to the relocation from Region 2 to Region 1 and material in relation to a passport for the child. The mother’s Trial Affidavit also contained background material, a brief history of the proceedings and a statement of the issues that were, as at 21 January 2019, before the Court.

1. The mother’s affidavit of 18 March 2019 was in reply to the father’s Trial Affidavit of 4 March 2019 and some other affidavits filed in support of the father’s case. It took issue with various matters of detail in the father’s Trial Affidavit and the affidavits of Ms Q, Ms O and Ms S. It also traversed aspects of the child’s life since the mother and the child have relocated to Region 1 with the maternal grandparents, and asserted the non-payment of child support payments by the father.

2. The mother also gave viva voce evidence on the first day of the trial, before Mr D was called to give evidence. In the mother’s evidence in chief she stated that the child is progressing well and enjoying kindergarten, that he has benefited from the move to Town J, that he is sleeping in his own bed, and that his socialisation is improving. The mother also made some observations about certain signs of anxiety sometimes exhibited by the child, including when he returns from time with his father. The mother conceded however that things in this respect have greatly improved since they moved, and also that a lot of good has come from the child-appropriate time the child has spent with the father.

3. The mother was cross-examined by counsel for the father in relation to several aspects of her affidavit evidence, and also in relation to what her position was about further time for the father. She accepted, “100 per cent”, that it was important for the child to have a relationship with his father. Indeed, she regarded this as essential, observing that she did not want her son growing up without half of the person who made him, and that knowledge of both parents define a person’s identity. She volunteered, in this respect, the importance of the child, as a little boy, having the benefit of his father’s teachings in relation to matters that would not even cross her mind. She accepted that it was very important to work towards the child being able to see both his parents, particularly his father, more than he does.

4. At the same time the mother accepted that she and the father reaching agreement about anything had been very difficult. The mother indicated that, on the question of when further time with the father might commence, it would be necessary for some sort of assessment to take place, and that after that the way forward could be determined. Importantly, this evidence was given before the mother had heard the evidence of Mr D as to more normalised time with the father, which evidence came the following day. The mother accepted, however, that it was important that there be a move to the child having overnight time with the father, and that increased time must definitely be the goal.

5. There was considerable cross-examination of the mother in relation to concerns she had expressed in her affidavit about the child touching himself inappropriately, and being licked by the father in an inappropriate way. However the mother accepted that she had not been of the view that the child had been sexually abused by the father, merely that the child should be assessed in relation to these matters. The mother stated clearly in cross-examination that she was not accusing the father of sexual abuse of the child, and that this is not an issue that need be the subject of any concern in these proceedings.

6. The affidavits of the maternal grandparents, Mr L Obelink and Ms M Obelink, both filed 21 January 2019 and relied upon by the mother, are largely confirmatory of the affidavit evidence of the mother in relation to the child’s behaviour. They contain their own observations about the child’s behaviour, and about their interactions with the father. However after the evidence of Mr D the evidence of the maternal grandparents receded in significance, and they were not cross-examined by counsel for the father.

7. The mother also relied on the evidence of Dr E which contained a short letter to the mother and the father dated 29 November 2017, and certain other correspondence. This evidence also receded somewhat in significance after Mr D gave his evidence, and counsel for the father indicated that Dr E was not required for cross-examination. Nonetheless, Dr E’s evidence was to the effect that while it was in the child’s best interests to have more involvement with his father, this could only come when the mother and the father are able to better manage the transition between them. The management of transition is a recurring theme. Dr E was critical of the father for recording a session with her without her knowledge, for not seeking professional assistance with his own parenting, for opposing a therapeutic approach to the child’s situation, and for continuing (in her view) to use the legal system to gain more contact with the child. Dr E contended that the child needed a team around him that supported his mental health and development in the same way as if he had a chronic illness, and proposed (in November 2017) a treatment plan for the father and mother, and for the child.

8. As matters transpired, and as Dr E communicated in a letter to the Independent Children’s Lawyer dated 22 March 2018, the therapeutic work for the child, including the parent work, ceased to be viable because no progress was being made. Dr E expanded on this in a latter of the same day to the referring doctor of the W Medical Centre in Region 2, observing that it had not been possible to form an alliance around the child’s mental health, not having been able to establish an agreed understanding of the child from which to work. Dr E noted in this letter that –

   “B’s anxiety disorder is largely generated by the split between the parents whereby his father denies any anxiety whatsoever in his presence and his mother reports anxiety associated with situations such as, but not limited to, separation, getting his hands dirty, and sleeping. Ms. Obelink report [sic] has reported some improvement in B’s anxiety, notably in his capacity to sleep by himself in his own bed several times per week. Other symptoms have worsened over time, and of great concern has been the emergence of aggressive behaviour in relation to keeping others in the home away from his mother, as well as fears that his mother will be lost to him. These have escalated this year, coinciding with attempts at parent work.

   Conversely, Mr. Messina denies any anxiety at all in his son whilst he is in his presence to the point where this would be well outside the normal range for a small child and problematic in itself. Anxiety is relatively common in children of B’s age and worries about transitioning between conflictual parents would be expected. It is unclear how to understand Mr. Messina’s observations, and they may indicate a dissociative phenomenon in B, and/or reflect Mr. Messina’s adversarial stance in relation to his ex-partner.

   Within this context mental health treatment as it stands with B is not viable and has been terminated. Further treatment under these circumstances, where B’s mental health is victim to the adversarial relationship between the parents is likely to be counterproductive.”

9. The mother also relied on the affidavits of Mr D filed 19 January 2019 and 12 April 2019. The evidence of Mr D, and in particular his viva voce evidence given on the second day of the trial, interposed during the mother’s evidence, is of central significance.

Evidence of Mr D

1. Mr D, a clinical psychologist, has had significant involvement with the parties and the child over several years, and has made a number of reports and sworn a number of affidavits in respect of this matter. Mr D made reports dated 31 August 2015, 31 May 2017, 20 November 2017, and 13 June 2018. He has affirmed affidavits filed on 11 September 2015, 8 December 2017, 29 January 2019 and 12 April 2019.

2. Mr D’s affidavit evidence is replete with concerns for the impact of the parental disputation on the child’s emotional well-being, and frustration at the parties’ apparent inability to work cooperatively in the best interests of the child.  Just one example of the parties’ inability to agree is described by Mr D in his report of 31 May 2017, as follows (page 1):-

   … His [the child’s] parents can literally agree on nothing in relation to him, including his name; he is called Lexi by one parent and Alex by the other. Despite extensive assistance, advice, and input, and more recently bfrom [sic] Dr E, not only does there continue to be an extraordinary polarity of concerns by both parents, but they have simply been unable to resolve any single issue in relation to their son.

3. At times Mr D has been critical of the parents’ apparent lack of insight into the issues confronting the child, in particular that of the father, noting in his 20 November 2017 report that (at [5] – [6]):-

   …

   I cannot recall another matter over 30 years of working in the Family Law arena in which a child so young has displayed such an array of anxiety related symptoms in response to which his parents have been so consumed by whatever narrative they had attached themselves to, that in turn has rendered them so unable to assist him, and in all likelihood over time have significantly negatively affected him. At least [the mother] has persevered with professional assistance and input.

   …

   Regardless of [the father’s] motivation, his behaviour has been unhelpful in the extreme; the inability for [the parties] to reach any kind of agreement in relation to any single aspect of their son’s welfare has been also extraordinarily unhelpful.

4. Notwithstanding his criticisms of them, Mr D observes that both parties care deeply for the child and are “passionate, desperate, and concerned” for his wellbeing (31 May 2017, at page 6).

5. Mr D was initially concerned that the child may be Autistic, however he ultimately concluded, Autism having been disproved, that the child was unable to live in the middle space between his parents without experiencing extraordinarily high levels of anxiety and distress, and that the discontinuity of his experience as he moves between the parties was enormously disruptive and having a negative effect on his development.

6. In his report of 20 November 2017 Mr D commented (at [4] – [5]) as follows:-

   By far the most concerning, and indeed the most complex and confusing aspect of this dispute has been that each of his parents has described of [the child], almost diametrically opposed behaviour. [The father] has maintained that [the child], when with him, is completely normal, that his behaviour is unremarkable, and that he is completely asymptomatic. In response, [the mother] has described of [the child] extreme regression, obsessional symptoms, sleep disturbance, behavioural dysfunction, and extraordinarily heightened anxiety in response to even the most minor of change or alteration to his schedule.

   …

   The much more distributing reality is that it is much more likely that what both [parents] describe of B is correct, and that what the Court is now presented with is a boy who has a fragmented sense of his world, a disjointed and disrupted relationship with his parents, that has compromised his attachment related behaviour to its very core, and that is very likely to have impacted upon his brain architecture.

   …

7. Significantly Mr D has maintained that the fact that the child does not show symptoms when he is with the father should not provide anyone concerned with any comfort, rather it is evidence of the fragmented world in which the child exists.

8. For much of the time of his involvement with the parties, Mr D was of the view that one parent would ultimately need to sacrifice their time with the child for the foreseeable future in order to give the child the opportunity to develop his capacity to self-regulate, and a greater sense of emotional control and stability. Mr D’s view, until recently, was that an uninterrupted routine in the one household would best afford the child this opportunity. For example, in the report of the 31 May 2017, Mr D said (at page 7):-

   …

   He [the child] needs to be in one home for a period of at least six months; he needs the opportunity to establish a stable routine, and it is hoped that with the establishment of language, that he will be able to more clearly articulate his internal state and his emotional needs. He needs to be provided a secure platform upon which to establish more secure and normal development, and for this development to progress uninterrupted.

   …

   My very strong recommendation is that:

   ·[f]or a period of one month B reside with his mother;

   ·[t]hat during this time, he have no contact with his father;

   ·[t]hereafter and for a period of two months that he see his father for one day each week, for four hours;

   ·[t]hen for three months, for one long day, from 10:00 [am] to 4:00 [pm] each week.

   ·[t]he plan is to build the time from that point forward; it is impossible to predict how it should progress, other than to graduate time to overnight and then alternate weekends.

   …

9. Mr D maintained this position leading up to the final hearing. In his report of 13 June 2018 to the Independent Children’s Lawyer he wrote (at [25]):-

   …

   It sadly, [sic] appears to me that [the child] is not able to live in the middle space with his parents, and will consequently need to reside with one and have, for a significant period, restricted, and probably no contact with the other, in order to allow him to emotionally regulate.

10. However Mr D saw the parties and the child in the days leading up to the final hearing to provide an updated assessment. His evidence of the updated assessment was given viva voce on 7 May 2019 during the second day of the hearing.

11. Of particular note in Mr D’s evidence was the marked improvement he described in the child, as observed by him and reported by the mother. The mother reported that since relocating to the Region 1, the child was attending kindergarten and appeared to be making enormous developmental gains. She reported that he was happy and separating easily, and that many of the symptoms of anxiety that he had previously displayed so acutely had subsided. This is in circumstances where he was continuing to spend time with his father one day per week.

12. As a result of this updated assessment Mr D substantially modified his position with respect to his recommendation for parenting arrangements for the child. When asked by counsel for the Independent Children’s Lawyer about the final session with the parties, Mr D commented as follows:-

    My observations of [the child] with his parents was completely unremarkable. He was terrific with his dad, he separated easily with his mother, he engaged quickly, he settled easily, he and [the father] maintained a very easy, uncomplicated interaction.  They were warm, they were affectionate, they explored a range of activities in my office.  [The father] easily entered into the play with his son and they were cooperative, they were physically affectionate, they were remarkably unremarkable… My observation of B with his mum was also extremely positive. I would say that compared to his interaction with his dad he was a bit more sparkly – I know that’s not a particularly helpful diagnostic term, but he really, really lit up. It seemed to me kind of obvious that this was his most special person. He was happy, he was laughing, he was engaged, he was enthusiastic, he was playful, he actively sought his mother out and she responded easily and appropriately. They entered into songs and they entered into play and they entered into stories about the play and their activities in a really seamless sort of manner. It was really, really positive. And at the end of the session B happily said goodbye, trotted confidently and comfortably. I saw no indication of any of the concerns that had been described by anyone about him.

13. Notwithstanding his earlier concerns regarding the child’s inability to cope with the “state of incongruence” that exists between his experience of his parents and their experience of each other, potentially requiring a period of no time or no time with the non-resident parent, Mr D suggested that, given the improvement in the child, orders which seek to normalise the child’s time with his father might be in the child’s best interests:-

    [I]f this little boy is not symptomatic, if he is settling, if he is making positive developmental gains, if he is able to see his dad with some regularly, trying to normalise this would be ideal…

    …

    I also think at some stage he has to have a normal relationship with his dad. I think there’s enough information out there to say that anyone who has observed him with his dad seems to suggest that he’s doing fine.

14. Mr D noted that:-

    When I try and distil this down – and I’ve thought a great deal about it since I saw the family last time – it does seem to me as though if [the child’s] behaviour is different, it’s been either as a consequence of him having just moved to the next bit of his maturational development or it’s a consequence of he and his parents being physically disconnected from each other… It may be – and I don’t want to relegate [the child] to the status of a white rat, but trying to get a sense of what happens if his parents are separated and he starts to see his dad overnight and alternate weekends to try and normalise this relationship within the family might be a way forward.

15. When pressed by counsel for the mother as to what “normalisation” of time would look like in these circumstances, Mr D answered that he was not suggesting a change as extreme as a five/nine night per fortnight arrangement, however he did suggest that alternate weekends would be reasonable, particularly given the practical constraints imposed by geographical distance between the parties.

16. When asked by counsel for the father whether he had considered the possibility of a change in residence, Mr D confirmed that he had and that he did not feel that he had a strong enough grasp of the issues in the case to be able to make a recommendation of such permanence. He was concerned however that whatever orders were ultimately made, they sought to normalise the child’s routine:-

    I’m hoping that we can establish some kind of routine for [the child]. If he’s going to reside with his mother, then he should see [his father] every alternate weekend and there should be a provision for holidays; if he’s going to live with his father, I think he should be residing with his father and seeing his mother every alternate weekend and making some provision for holidays. I think that the arrangements thus far have been unhelpful.

17. Mr D emphasised consistently throughout his oral evidence that this was one of the more difficult cases he has been involved with. He was clear, however, that the same thing should not continue to be done in the hope of securing a different outcome. Mr D suggested that the Court would need to act like a “super parent, taking control, making decisions, expecting everyone to comply, placing limits, following through”. Mr D did not suggest that there should be significant delay before moving to overnight time, or more extended overnight time.

Evidence of the mother (after hearing the viva voce evidence of Mr D)

1. After Mr D had given evidence of his more recent views, the mother was cross-examined by counsel for the Independent Children’s Lawyer. Having had the benefit of Mr D’s views, and in answer to a question about how she felt about the father having more time with the child, the mother indicated that she thought that now was a good time to start with increased time because it provided an opportunity to sort out any difficulties before the child started school in 2020. The mother said that she could cope with the child having overnight time, and that she was supportive of this occurring. The mother said that she would try to prepare the child to have overnight time succeed by talking with him about how it would work, and emphasising that he would be brought back to her once it had finished.

2. The mother conceded that it was likely that the child had never seen his parents speaking normally together, and that she would make efforts to improve communication with the father. She accepted that it would be helpful for the father to collect the child from kindergarten when it was time for him to spend time with the father, and that this would avoid the child picking up on her anxiety. The mother was also asked by counsel for the Independent Children’s Lawyer whether it would be feasible (as far as the mother was concerned) for the child to have two nights with the father, at least initially. The mother was not so comfortable with this proposal, noting that there was a big different between one and two nights, and that at present the child likes the idea of staying overnight with his father. The mother considered that the child might regress if he was required to spend two nights with his father. The mother was concerned that if things were not going well between the child and the father, there would be little ability to regulate the situation.

1. The mother accepted that the process of increasing the child’s time with the father was necessarily experimental, and she agreed with counsel for the Independent Children’s Lawyer that a lot of the child’s capacity to cope with the situation would be affected by her own ability to cope with the child leaving her care. The mother accepted, sensibly in my view, that she may need some professional assistance to help her through this process. Counsel for the Independent Children’s Lawyer also explored the issue of the child’s surname with the mother, but this evidence is no longer of relevance having regard to the father’s concessions in relation to this matter.

2. In re-examination the mother emphasised the problems which occur at changeover in the face of what she asserted was the father’s refusal to speak with her, and his practise of recording changeovers. She said that she thought it would be better if changeovers were not recorded. The mother also said that she thought moving to a four day per fortnight position would be undesirable, and that she regarded it as desirable that the child be returned to her in time for his evening meal at around 5:30pm so as to enable an orderly settling process at night time. The mother also said that she thought it would be good for the father to return the child to her because it would be good for the child to see that his father could be relied upon to return him to the mother.

Evidence adduced by the father

1. Like the mother’s reply affidavit, the father’s Trial Affidavit takes issue with certain matters of detail contained in the mother’s Trial Affidavit, and advances an asserted factual foundation for the father’s (then) application that the child live with him. In essence, and as Dr E’s evidence mentions, the father denies the existence of the child’s behaviours as recorded by the mother and her parents, deposing essentially that he has not observed them. He firmly denies any sexual impropriety on his part with the child, and ever using drugs prior to seeing the child.

2. Insofar as the issue of parental responsibility is concerned, the father deposes that there have been occasions where he and the mother have worked co-operatively together, although much of the father’s evidence in relation to parental responsibility takes issue with the relevant evidence of the mother. The father also makes observations in his affidavit material in relation to the proposed change of the child’s name, the issue of relocation, the issue to the child of a passport, and the advantages that residence of the child would have with him as compared to residence with the mother. The father stresses his concern at what he regards as the excessive involvement of health professionals in the child’s life. The father also takes issue with certain observations made in their affidavits by the maternal grandparents.

3. The father also gave viva voce evidence, and was cross-examined by counsel for the mother and counsel for the Independent Children’s Lawyer. Although counsel for the father tendered the father’s affidavit of 4 March 2019, the father also produced a revised set of orders which differed significantly from the orders sought in his further amended response to initiating application filed 15 March 2019. These orders sought, amongst other things, time with the child from Tuesday until Thursday of each week, and in the alternative Friday until Tuesday of each week until the child started school. The father’s revised orders accepted that the child would live with the mother.

4. The father was then cross-examined by counsel for the mother, initially in relation to the revised orders he sought, and the extent to which they were child focused, and responsive to what Mr D had suggested. Although the father accepted that (aside from one occasion when the child was a baby) he had never spent the night with him, the father was confident that the child would move to overnight time seamlessly. He agreed that, if the child did not cope well with being away from his mother, and could not be consoled, that he would take him home.

5. The father appeared to accept that, at least to some extent, the relationship between him and the mother was toxic, although he disputed that he had ever told her not to speak to him, and that he ignored her when she brought the child to him for changeovers. He accepted, however, that it was his practise to record changeovers, and that he had in fact recorded, and then edited, a counselling session with Dr E in the face of her request that there be no recordings because he considered that he had no choice but to record it.

6. The father was also cross-examined about the aspect of his revised proposal which involved him keeping the child on a Sunday night, but returning from Region 2 to Region 1 and staying overnight, before dropping the child at kindergarten or school on the Monday morning. The father’s evidence was that he thought it would be sufficiently child focused to bring the child back to Region 1 and to stay overnight on Sunday, either with friends of the father, or the father’s father and his wife, before taking him to kindergarten or school in the morning.

7. The father was also challenged about how quickly his revised orders would require the child to have overnight time, and holiday time, with him, and whether this was sufficiently child focused. The father was unequivocally of the view that the child would have “absolutely no problems” with the arrangements his revised orders contemplated, and that if there were, he accepted he would be able to have a conversation about this with the mother.

8. On the subject of equal shared parental responsibility, the father indicated that although he did not think the school the mother had chosen for the child was the best school in the area (in fact he thought it was the third best school) he was content to go along with the mother’s choice. Insofar as the child’s health practitioners are concerned, the father’s position was that both he and the mother should be able to have input into who they might be.

9. The father also relied on the evidence of certain friends, family members and others who have observed the child and the father’s interaction with the child or have otherwise been involved with the father. The substance of this evidence (Dr N, Ms O, Dr P, Ms Q, Ms R, Ms S and Mr T) is that the father is a good father and that the child appears contented and well-adjusted in his care.

10. Dr N, who is a medical practitioner and a friend of the father, deposes that the father’s mental state is entirely normal, without a hint of psychopathology. He regards the father as level headed, fair, helpful and kind, and to be an attentive, affectionate, devoted, and caring father. He says that the child appears happy and relaxed in the father’s presence, and that he has never observed him distressed.

11. Ms O, who is a social worker, deposes that in her experience the father and the child have a wonderful relationship, full of love and laughter, and that the father is a doting father. She considers that the child is well-adjusted in his father’s care, and that the child is enriched socially and emotionally by spending time with the father and his network of family and friends.

12. Ms R is a registered psychologist. The father has consulted her on a number of occasions in relation to parenting matters. She refers to a letter she had written dated 3 March 2016, and an email exchange she had with the mother commencing on 4 March 2016. The substance of the letter is that the father is devoted to his son and should be able to spend more time with him. The email exchange with the mother is concerned with the mother’s critique of Ms R’s letter, and the posing of further questions to Ms R by the mother.

13. Ms R deposes that she has seen nothing from any clinical observations which would prevent the father from being a suitable parent for his son to spend time with, or for his son to live with.

14. Ms S is the father’s sister. She deposes that the father stayed with her in New Zealand for six months after the birth of her first child, and that he was a fantastic help. She also says that the child has become friendly and confident around her, and that she has never observed problems at changeovers on her occasional visits. In her assessment the father is impressive as a father and as an uncle: he is calm, fun, and attentive with the kids.

15. Mr T is a friend of the father’s in Region 2, and a landscape gardener. He deposes that he has been present when the father is with the child, and that the father is extremely gentle, thoughtful, and caring. His observation, on an unspecified number of occasions, including at changeover, is that the father and the child are consistently responding well to each other, and that the father’s care of the child is appropriate. Mr T also deposes that the father’s partner, Ms Q, is generous and thoughtful, and that their house outside Region 2 would be a loving and supportive environment for the child.

16. The father also relies on a report of Dr U, a psychiatrist, who has prepared a psychiatric assessment of the father and the mother dated 13 November 2017. Insofar as the mother is concerned, Dr U diagnoses her a shaving a Generalised Anxiety Disorder. Insofar as the father is concerned, Dr U considers that he does not present with a psychiatric condition. Dr U’s opinion more generally is that the father does not suffer from a personality disorder, and that it is likely that the mother’s anxiety disorder, together with a certain level of entitlement, may well have led her to feel unsupported in the context of her relationship with the father.  Dr U also considers that although there is the view that the child’s Attachment Disorder occurs in the midst of the conflict between the parties and is largely expressed in the context of the relationship with the mother, an alternative proposition is that the child’s Attachment Disorder may well relate to the mother’s Generalised Anxiety Disorder which is not reflected in his relationship with his father, who has no such psychiatric condition. Dr U inclined to the latter view, rather than the former, but he had not assessed the child. Dr U considered that the father’s sense of having been sidelined may have some cogency, and that he may have some claim to being the more stable parent from a psychiatric perspective. Importantly, however, Dr U emphasised that he had not seen the child, and that his report needed to be read accordingly.

17. Dr P, who is a consultant paediatrician, saw the child on referral from the W Medical Centre in Region 2 on or about 10 September 2016. In his opinion the child was, at the time of examination, broadly normal developmentally with minimal and mild speech delays but normal receptive language, cognitive, play, social, self-help, and motor skills. While the child was shy, sensitive, and initially a little anxious, he warmed up by the end of the assessment. Dr P noted that he father related and connected with the child warmly during the consultation.

18. Ms Q is the present domestic partner of the father. She has previously worked as a child development, education and wellbeing specialist and she continues to consult in this area from time to time. She deposes that the child is happy and intelligent and is always happy to be with his father and her. She also deposes that the father is a terrific father, being loving, caring and nurturing. Ms Q states that the child often says he will ask his mother for an extra “Dad day” when he visits, and asks to stay overnight. Ms Q also deposes to certain matters concerning changeovers, including an occasion where she says there was a threatening encounter with the mother’s father, and the practise of recording changeovers, which she says has been done at the suggestion of a police officer. Ms Q also says that she has never observed the child displaying behaviours of the kind identified by the mother which would be of concern.

Assessment of the evidence

1. It should be observed that pursuant to s 140(1) of the Evidence Act 1995 (Cth) the standard of proof that is to be applied is the balance of probabilities. Section 140(2) provides that in applying that standard the Court must have regard to the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged.

2. Having regard to the convergence in the parties’ respective positions, and the viva voca evidence of Mr D, the evidence that the mother and the father gave in relation to the extent the child was presenting with symptoms of emotional distress has assumed less significance than it might otherwise have had. What is now important is that the mother, like Mr D, accepts that the child should have time with the father, including overnight time, and that now is a good time to start increasing that time because it would enable any difficulties to be sorted out before the child commences school next year. Having regard to Mr D’s evidence, this attitude must be regarded as entirely sensible. The mother’s position, however, is that the process of introducing the child to overnight time with the father should not be rushed, and indeed that the child should not have more than one period of overnight time for one night with his father per week until 13 March 2020.

3. The evidence of both the mother and the father disclosed that there remain serious differences between them in relation to how overnight time should be organised and when it should progress to more than one night per week, the extent to which the father has been prepared to speak with the mother at changeovers and communicate effectively with her more generally, and the extent to which it has been appropriate to involve health professionals in the child’s care. It is apparent from the evidence of both the father and the mother that the relationship between them is highly strained and, at some level, toxic. The father does not regard the mother as a competent parent, and stated as much in answer to a question from counsel for the Independent Children’s Lawyer. The father also accepted, again in answer to a question from the Independent Children’s Lawyer, that he and the mother had no real regard for one another as human beings or parents, and that the child was going to have to adapt to living with parents who have but a modicum of communication between them. Insofar as the father sought to minimise the extent of the conflict between him and the mother, and to suggest that he had been developing a better relatinship with the mother, there seems to be little objective support for this evidence, and the mother seems not to be of this view. I do not accept that the parenting relationship between the mother and the father is improving, although of course it must improve.

4. On the subject of how time might be organised between the mother and the father, Mr D’s evidence after his most recent consultation with the mother, the father, and the child was extremely compelling. As has been indicated, the substance of Mr D’s evidence was that the child’s time with the father needs to be normalised, and he needs to start seeing his father on an overnight basis and on alternate weekends, and there should be provision for holiday time. I accept Mr D’s evidence in this regard.

THE CHILD’S BEST INTERESTS

Parental responsibility

1. Notwithstanding the statutory presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility, having regard to the acrimonious state of the relationship between the mother and the father, and the fact that the child is to live primarily with the mother and go to school near her home in Town J, I consider that it would not be in the best interests of the child for the mother and the father to have equal shared parental responsibility in relation to all matters. The preferable course, in my assessment, is for the mother and the father to have equal shared parental responsibility save that decisions relating to education and health should be decided solely by the mother. This will be subject to the proviso that the mother notify the father promptly of all decisions she makes in relation to these matters.

2. I accept, in this respect, the submissions of the Independent Children’s Lawyer and the mother that the evidence discloses that the parties have not been able to consult each other and act jointly in relation to the needs of the child. This much is apparent from the numerous reports prepared by Mr D and Dr E, but it is also an inescapable conclusion on the basis of the parties’ own evidence. Although both the mother and the father have expressed a hope that things will improve between them, there is virtually nothing to suggest that these statements in the witness box are more than statements of aspiration, with little realistic chance of fulfilment. I consider that for them both to have equal shared parental responsibility in relation to all matters will simply be productive of further disputation between them, which will not be in the best interests of the child.

3. Notwithstanding my finding in this respect, the mother will need to accept, in the interests of the child, that the father will have legitimate views to express in relation to the child’s upbringing. It would not be appropriate for him to be denied any voice in relation to the child’s care and upbringing, and I consider that to remove from him any ability to be involved in decisions relating to the welfare of his son may risk him becoming a passive player in the child’s life. This would be generally undesirable where there is no evidence of any abuse, but particularly undesirable in circumstances where, over time, the time the child spends with his father must increase. As the Act makes plain, a primary consideration in determining what is in a child’s best interests is the benefit to the child of having a meaningful relationship with both of (his) parents. It is unsatisfactory that the child of this relationship has been afforded only very limited time with his father in the course of his early years, a reality which must surely have impaired the development of the child’s relationship with his father.

4. I note in passing that it is unnecessary to consider whether there should be equal shared residential time between the parents in circumstances where the order will be for equal shared parental responsibility other than in relation to education and health. Neither party seeks equal shared living arrangements, and the distance between the parents’ respective homes would make such an arrangement impractical in any event.

Time to be spent with the father

1. As the mother’s submissions recognise, the essence of Mr D’s evidence is that normalisation of the child’s time with the father is what is required. Mr D has clearly identified that whatever has been happening to date has not worked, and that it would be desirable for the child to see his father overnight and on alternate weekends, with provision to be made for holidays.

2. I accept the submissions of the Independent Children’s Lawyer that the options available are constrained by geography, and by the fact that the child will start school next year. The reality, in the circumstances, is that a normal regime in the context of the geographical distance between the homes of the mother and the father can only really contemplate alternate weekends and holidays. I accept that options such as midweek time during school terms and a regime that provides for more significant time with the father across weekdays and longer time on weekends during school time are not tenable. In particular, it is plain that the father’s proposal to return the child to the Mornington area but not to his mother’s home on a Sunday night lacks child focus and would be disruptive, confusing, and tiring for the child. The same applies in relation to midweek time next year once the child stops having the midweek non-school day from about the middle of March 2020.

1. The position of the mother and the Independent Children’s Lawyer is that the child should continue to spend but one night (a Tuesday night) with the father for the balance of 2019, over the Christmas vacation, and until he starts attending school five days per week (from 13 March 2020). This is said by the Independent Children’s Lawyer to protect against the child being burdened by too many changes which would coincide with the start of prep, which is already a significant change. The Independent Children’s Lawyer contends that going from daytime time to two overnights too quickly may be problematic, and that the mother’s anxieties are a relevant consideration. It is submitted that if the mother can embrace a gradual increase in time and contain her anxieties, there is a greater prospect that the orders will succeed in the future. It is further submitted that while the father may consider progress towards equal time during the holidays too slow, the long term viability and success of the proposed orders is a more important goal, and it would be better to proceed with caution.

2. Whilst I do not accept that it would be in the best interests of the child for the regime of rapid progression to extended overnight time proposed by the father to be put in place, it is to be observed that there is no evidence to suggest that the child would not cope with two nights with his father, or that the introduction of two nights needs to wait until the middle of March 2020. Indeed, as has been noted, the burden of Mr D’s evidence is that overnight time should start soon, and that it should extend to weekend and holiday time. The other evidence advanced in support of the father’s case seeking additional time suggests that there is no reason that the child would not cope with a more rapid progression to two overnights, and to significant holiday time. Insofar as the mother’s anxieties are raised as an impediment to a more rapid progression to two overnights and to more extended holiday time, while I accept that this is a relevant consideration I consider that this matter is not determinative, and that it should not slow the path to the normalisation of the child’s time with his father.

3. In all the circumstances, and having regard to the nature of the child’s good relationship with both his parents, and the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from his mother (which I do not assess as posing a significant risk), I consider that it would be in the best interests of the child were he to move to more regular overnight time with the father sooner rather than later. It is not apparent that there is  any reason why this could not commence during the week of 16 September, on the Tuesday until the following Wednesday afternoon, as the parties propose.

4. The question of when overnight time should move to two overnights, and then to equal time over the holidays, is less capable of ready answer. However in light of Mr D’s evidence in particular, together with the absence of anything to suggest that the child would not cope with more extended time with the father, I consider that movement in this direction should happen more quickly than the mother and the Independent Children’s Lawyer’s proposals contemplate.

5. The regime which I consider would be in the best interests of the child having regard to the statutory criteria in s 60CC of the Act should proceed broadly along the following lines:-

   a)for the balance of term 3, overnight time with the father on Tuesday 17 September with the child returning to the mother by 5:00pm on the Wednesday;

   b)a weekend period, say the middle weekend of the September school holidays, from Friday afternoon until Sunday afternoon with the child returning to the mother by 5:00pm Sunday, or as otherwise agreed;

   c)for the balance of term 4, overnight time with the father on Tuesday nights, with the child returning to the mother by 5:00pm on the Wednesday save that the child have the weekend of 22-24 November with the father by reason of a significant family event that weekend;

   d)during the summer vacation of 2019/2020, with appropriate arrangements for Christmas, the child live with the mother but spend weekends with the father from, say, Friday afternoon, with the child returning to the mother by 5:00pm on Sunday (or such other equivalent time as the parties are able to agree);

   e)during the first term of 2020, until 9 March 2020, from the conclusion of school on Tuesdays until the following afternoon with the father, and commencing on 13 March 2020 and each alternate weekend thereafter, from the conclusion of school on Friday until the following Sunday afternoon with the child returning to the mother by 5:00pm;

   f)in subsequent terms with the father on each alternate weekend from after school on Friday until the Sunday afternoon, with the child returning to the mother by 5:00pm; and

   g)in school holidays during the year as and from the 2020 Easter school holidays, on a week and week about basis, or as otherwise agreed by the parties, and in the 2020/2021 summer vacation and subsequent summer vacations the child live with the father for one half of the holidays and the mother for the other half of the holidays.

Conclusion

1. Given the intricacy of the competing regimes of orders proposed by the parties and the conclusions I have reached on the basis of the evidence, the drafting of a regime of final orders is not straightforward. In the circumstances therefore I will not pronounce final orders immediately, but I will provide a set of draft orders with these reasons which attempts to give effect to the regime which seems to me, in all the circumstances, to be in the best interests of the child in accordance with s 60CC of the Act. However I will hear the parties in relation to any minor adjustments which they seek to make to this regime.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 12 September 2019.

Associate: 

Date:  12 September 2019