Paggett and Cable (No 2)

[2016] FamCA 1176

FAMILY COURT OF AUSTRALIA

PAGGETT & CABLE (NO 2) [2016] FamCA 1176

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time - With whom a child communicates – Orders that child live with the mother and spend time with the father – Orders that parents have shared parental responsibility for the child – Orders determining which school child should attend

Family Law Act 1975 (Cth) S60CC (2) and (3)

APPLICANT: Mr Paggett

RESPONDENT: Ms Cable

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: CAC 1013 of 2012

DATE DELIVERED: 15 April 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Benjamin J

HEARING DATE: 11 & 12 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Foster

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Mr Stead

SOLICITOR FOR THE RESPONDENT: Pappas J Attorney

Orders

1. All previous parenting orders in respect of B born … 2011 (‘the child’) be discharged.

2. The child shall live the mother.

BY DETERMINATION

1. Ms Cable (‘the mother’) and Mr Paggett (‘the father’) have equal shared parental responsibility for the child.

2. The child spend time with her father as agreed and failing agreement as set out as follows.

3. From the date of these Orders until 10 September 2016 on a fortnightly basis during school term:-

   a.in week 1, from 10:00am on Saturday until the following Monday before pre-school or if Monday is not a pre-school day, then to 3:00pm; and

   b.in week 2, on Monday from after pre-school (or 3:00pm if not a pre-school day) until 6:30pm.

4. From 10 September 2016 until the end of school term 1, 2017 on a fortnightly basis during school term:-

   a.in week 1, from 10:00am on Saturday until the following Monday before preschool/school or if Monday is not a school or pre-school day, then to 3:00pm; and

   b.in week 2, on Monday from after pre-school/school (or 3:00pm if not a pre-school/school day) until the following Tuesday before school or if the Tuesday is a public holiday then the child to spend time with the father to 3:00pm Tuesday. 

5. From commencement of school term 2, 2017 to the end of school term 3, 2017 on a fortnightly basis during school term:-

   a.in week 1, from after school (or 3:00pm if not a school day) on Friday until the following Monday before school or if Monday is not a school or pre-school day, then to 3:00pm.; and

   b.in week 2, on Monday from after pre-school/school or (3:00pm if not a pre-school/school day) until the following Tuesday before school or if the Tuesday is a public holiday then the child to spend time with the father to 3:00pm Tuesday. 

6. Thereafter during school term on an alternate week basis, from after school (or 3:00pm if not a school day) on Friday until the following Tuesday before school or if the Tuesday is a public holiday then the child to spend time with the father to 3:00pm Tuesday. Such alternate Friday to Tuesday periods to commence in school term the second week after the commencement of school term if the child was primarily with the father during the last week of the preceding school holiday period and the first week if the child was primarily with the mother during the last week of the preceding school holiday period.

7. During school holiday periods the child shall spend time with the father as follows.

8. In the June/July and October 2016 term holidays:-

   a.Week 1 – Saturday from 10:00am to Tuesday 4:00pm; and

   b.Week 2 – Thursday from 4:00pm until the following Monday before school or if Monday is not a school or pre-school day, then to 3:00pm. 

9. In the December 2016/January 2017 holiday period, four blocks of nights with the  father as agreed and failing agreement as follows:-

   a.from 4:00pm on Friday 16 December 2016 until 4:00pm on Tuesday 20 December 2016;

   b.from 12 noon on Christmas Day until 12 noon on 29 December 2016;

   c.from 4:00pm on Thursday 5 January 2017 to Monday 9 January 2017; and

   d.from 4:00pm on Sunday 22 January 2017 until 4:00pm Thursday
   26 January 2017.

10. In the April and June/July and October 2017 mid term holidays for a block of five nights and a block of two nights with the father, as agreed; and failing agreement five nights from the Friday at the end of school term to the following Wednesday then 10.00am on the last Saturday through to commencement of pre-school the following Monday.

11. In the December/January 2017 holiday three blocks of six nights (where possible) with each of her parents, as agreed; and failing agreement the child shall spend time with the father as follows:-

    a.from 12 noon on Tuesday 19 December 2017 to 12 noon on Christmas Day (Monday 25 December 2017);

    b.from 4:00pm on Monday 1 January 2018 to 4:00pm Sunday 6 January 2018; and

    c.from 4:00pm on Monday 15 January 2018 to 4:00pm Sunday 20 January 2018.

12. For the school holidays from February 2018 onwards as agreed and failing agreement as follows:-

    a.for one half of the mid-year school holiday periods, being the first half in even numbered years and the second half in odd numbered years. If the first half; then commencing after school on the Friday (or Thursday if the Easter break is included in the holiday) and concluding at 6:00pm on the Saturday in the middle of that holiday. If the second half; then commencing 6:00pm on the Saturday in the middle of that two week holiday period and concluding 6:00pm Sunday before the commencement of term or the Monday if the first day of school is a student free day or a public holiday;

    b.notwithstanding the orders above, if Easter falls in the first mid-year school holiday the parents shall arrange to have the child spend equal time with each parent in such first mid-year school holiday with the child spending from Easter Friday to Easter Sunday with each parent on a year about basis;

    c.in the event that the Easter period does not fall in a mid-year end of first term school holiday period then;

    i.in the first of such particular events and each alternate event thereafter; the child shall live with the father from after school on Thursday before Easter until 9:00am Easter Sunday and if the child would otherwise spend time with the father on the Monday following Easter, such time shall be suspended; and

    ii.in the second of such particular events and each alternate event thereafter; the child shall live with the father in from 9:00am Easter Sunday to the start of school Wednesday.  

    d.as to the Christmas/New Year holiday period;

    i.from December 2018 and each alternate year thereafter for three weeks from the following 1 January, plus the child to spend time with the father from 12 noon on 25 December to 12 noon on 26 December of that Christmas/New Year school holiday period, and

    ii.from December 2019 and each alternate year thereafter; from after school on the last day of term for a period of three weeks (excluding the period from 12.00 midday on 25 December to 12.00 midday on 26 December that Christmas/New Year school holiday period when the child will live with the mother).

13. Notwithstanding the above orders, the child’s paternal Aunt is to be married on the weekend commencing … 2016. If this weekend is not a weekend that the child is to spend time with the father, the parties will re-arrange their parenting schedule to ensure that the child will spend this weekend with the father.

14. Notwithstanding any other Order and unless the parents otherwise agree in writing:-

    a.the child live with the mother each Mother’s Day from 9:00am to 5:00pm and with the father each Father’s Day from 9:00am to 5:00pm.

    b.on the child’s birthday each year, the parent with whom the child is currently living with or spending time with make the child available to spend time with the other parent as follows:-

    i.If the birthday falls on a school day, for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from after school until 6:00pm; or

    ii.If the birthday falls on a day on which the child is not required to attend school, for a period of at least five hours at a time to be agreed between the parents, but failing such agreement, from 9:00am until 2:00pm.

15. Notwithstanding any other Order and unless the parents otherwise agree in writing:-

    a.for the purposes of these Orders and unless otherwise agreed by the parties in writing, handovers that do not occur at school occur as follows:

    i.The mother or her agent deliver the child to the father’s house at the commencement of any time that the child is to spend with the father; and

    ii.The father or his agent deliver the child to the mother’s house at the conclusion of any time that the child is to spend with the father.

16. Both parents be at liberty to attend special events held at the child’s pre-school/school and any extracurricular activity undertaken by the child and neither parent will attend extracurricular activities in which the child participates during the other parent’s time except in accordance with these Orders or if invited by the other parent.

17. In the event that the child wishes to speak with the parent with whom she is not currently living with or spending time with, the relevant parent facilitate the child making a phone call (unless some other means of communication is otherwise agreed).

18. The parents each keep the other informed in a timely fashion of:-

    a.the name and contact details for each of the child’s doctors, health care and other treatment providers;

    b.any significant medical condition, illness or other health condition suffered by the child;

    c.any major extracurricular activity that the child is participating in, including events which occur on individual parent’s weekends; and

    d.the address at which the child will reside when in their care and a contact telephone number and each parent shall notify the other at least 7 days prior to relocating the child’s residence beyond a 20 kilometre radius from where they currently reside.

19. Each parent shall do all such things and sign all such documents so as to authorise (if needed) the other parent to:-

    a.receive all information from the child’s preschool/school to which parents are ordinarily entitled including but not limited to, their academic, sporting and social progress;

    b.receive all information from the child’s preschool/school as to events to which parents are entitled to attend or participate; and

    c.receive any and all information to which parents are lawfully entitled from any doctor, hospital, therapist or other health professional who deals with the child.

20. IT IS NOTED that in the event that either parents refuses or fails to provide the authorisations required by these Orders, or in the event of doubt expressed by any or all of the persons to whom any such authorisation is directed, this Order shall itself operate so as to provide the authorisation that would otherwise be given by one or both parents of the child.  

21. Unless otherwise agreed in writing by the parents, both parents be restrained from relocating the child’s place of residence from outside the Canberra/Queanbeyan region.

22. BY DETERMINATION the parents shall do all things required and sign all documents necessary to enrol the child in H School so that she may commence at that primary school in 2017.

23. BY DETERMINATION either parents is permitted to travel overseas with the child for the purposes of a holiday, provided that such parent:-

    a.arranges travel  the travel during times that the child is living with or spending time that parent and during school holiday periods;

    b.provides the other parent with at least three weeks notice (in the case of international travel); and

    c.at least two weeks prior to any agreed international travel;

    i.the mother (who is to hold the child’s passport) provide the child’s passport to the father if the child is travelling with the father;

    ii.the travelling parent provide copies of return flight tickets and details of places that the child will be staying and a contact telephone number while abroad;

    iii.The non-travelling parent provides a consent form to the other pursuant to Section 65Y of the Family Law Act 1975.

24. Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

25. Leave is given to both parties to apply within 28 days from the date of this Order in the event that either one or the other seeks re-instatement or the making of Order 7 made 17 March 2015. 

26. Otherwise all outstanding parenting applications, be dismissed except as to costs. Any costs applications to be made in accordance with the Family Law Rules 2004 (Cth).

27. At the expiry of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 Paggett & Cable 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 CANBERRA

FILE NUMBER: CAC 1013 of 2012

Mr Paggett

Applicant

And

Ms Cable

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings which have come about because Mr Paggett, (‘the father’), and Ms Cable, (‘the mother’), have been unable or unwilling to find solutions about the parenting arrangements for their daughter, the child, (‘the child’) who was born in 2011 and who is aged about four and a half at the date of the hearing. 

2. It was not an issue that the child should live with the mother. 

THE ISSUES

1. The issues seemed to fall into a number of areas:  firstly, the question of parental responsibility as to whether there ought to be an order for sole parental responsibility in favour of the mother or equal shared parental responsibility as sought by the father.   

2. The second area is the time the child spends with the father.  The mother’s case is that it should develop over a period of time to four nights a fortnight during the school term.  The father’s case is that it should expand to six nights per fortnight during the school term. 

3. There is also an issue as to the time over which this should develop: whether it should be over a shorter period of time, as suggested by the father, and a longer period of time, as suggested by the mother. 

4. There is an issue as to which school the child attends in 2016 when she commences kindergarten.  There also seems to be an issue as to whether the child can travel overseas in terms of travel in school time rather than solely in school holidays.

5. Each of the parties prepared a case outline or an outline setting out what they sought and I have had regard to those.  They are Exhibits before me.[1]

   [1] Exhibit F1 and Exhibit M1.

6. The parties provided me with, yesterday some time, a consent order in relation to some matters to which they allude.  I will treat that as an exhibit.  These related to the passing of information, Mother’s Day, Father’s Day, the child’s birthday and the like.  The orders also identified for me the agreement between the parties that the child could travel interstate and overseas provided it was with notice to the other party.  That was when I identified the issue about whether this should happen in school holidays only or in a broader context.

BACKGROUND

1. At the date of hearing the father was aged 29.  He works full time as a public servant. 

2. The mother is aged 26.  From her affidavit and the family report she describes her occupation as home duties and says she is currently employed and studying

3. The parties commenced their relationship in September 2010, and that relationship ended in March 2011.  It is not in issue that the parties have not spoken to each other face-to-face since that time. 

4. During the course of the parties’ relationship the mother became pregnant and the child was born in 2011, about six months after the parties’ separation. 

5. The mother alleges that she was subjected to violence and controlling behaviour during the course of the relationship.  The father denies those allegations.  Given the context of these proceedings that was not argued, although I will refer to it in a brief way later in these reasons. 

6. In August 2011, the mother sought a domestic violence order and an ex parte order was made. That application came before the ACT Magistrates Court shortly after the birth of the child and then again in October and November of that year.

7. Apparently, in November of that year the mother was represented and her lawyers sought an adjournment of the application.  That application was apparently dismissed and the interim order discharged.  As I said earlier, the child was born in 2011, and the father subsequently completed an intake assessment with Relationships Australia and attended private mediation.

8. I interpose at this time that this was one of those difficult matters where the parties never really cohabited and never really knew each other, and their relationship commenced with a sense of distrust which grew from that time.  It grew in both of them in various ways, feeling poorly and acting poorly to each other.

9. The mother did not permit the child to see the father until 2012.  The father had completed an intake assessment with Relationships Australia, and on 4 July 2012 he commenced these proceedings. 

10. In September 2012, the child had a first meeting with the father, and in November 2012 interim orders were made in this Court that the child spends time with the father on Sundays, Tuesdays and Thursdays for short periods of time.  In July 2012, interim orders were made in this Court providing that the child spend time with the father on a more expansive basis, but not with overnight time.

11. In July 2013, the father commenced a Circle of Security program and completed that in September 2013.  The proceedings were heard in this Court on 2 and 3 October 2013, and there was some delay in delivery of judgment. 

12. In February 2015 further information was given to the Court, and on 17 March 2015 orders were made and I was provided with a copy of the orders.  I have indicated to the parties, and I reindicate to the parties, that I have not read the reasons of the Deputy Chief Justice, but of course I have read the orders that were made on that time.

13. The father filed a notice of appeal in relation to those orders; however, the arrangements set out in those orders substantially continued until the commencement of this trial, or until this trial.  The appeal was successful and the matter was referred back to a different judge of the Family Court for hearing, and that was my task this week.  Over that period of time the child has increased from no overnight time with the father to spending two overnight times per fortnight with the father. 

14. The child has commenced attending H Preschool, and I will talk about that somewhat later in these reasons.  There was some issue about a passport, however, despite this the child travelled to Asia with her mother in late January 2016. 

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (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 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 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; 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).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. 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 either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Maldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

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

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

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (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;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

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

   (c) the extent to which each of the child's parents 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;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

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

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child's parents; and

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

   to provide for the needs of the child, including emotional and intellectual needs;

   (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;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

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

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

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

1. I note that this judgment is one which is affected by the 2012 amendments which came into effect on 7 June 2012; and these proceedings commenced a little under a month later. 

PARENTAL RESPONSIBILITY

1. I will also look at s 61C of the Act in relation to the status quo of parental responsibility prior to any orders being made, and s 61DA with regard to presumption. This is a matter where it seems agreed that the presumption should apply and I have to consider the matters in relation to equal time and significant and substantial time.

2. Notwithstanding that the parties invited me not do so, I have considered the question of equal time, but did so in the light of the submissions of the parties and in the light of all of the factors before me.  The issues between the parties essentially were what form of significant and substantial time ought to take place between the child and her parents.

THE EVIDENCE

The Family Consultant

1. The first witness in this case was Ms E whose report dated 24 March 2016 was read into evidence and is Exhibit M2.  Ms E’ (‘the Family Consultant’) qualifications were not in issue. 

2. She was initially cross-examined by counsel for the mother, then the father.  There were some issues as to recollection between the Family Consultant and the father.  As a consequence, the Family Consultant was recalled at the end of the hearing and gave further evidence.  Part of the evidence given by the Family Consultant on her return related to exchange of correspondence between the parties, generally by email, which was Exhibit F2 and how that would impact on her views.  It certainly had an impact on her views, given her strong report with regard to the poor communication between the parties.

3. The Family Consultant gave evidence that the father alleged the mother is emotionally and psychologically unstable and that this affects her being able to properly care for the child.  This was based upon observations to the Family Consultant at paragraphs 22, 23, 24, 25 and onwards.  The Family Consultant observed that in previous reports there may have been some comments the mother may have ‘limited mentalisation skills’.[2]  It was the Family Consultant’s views that she saw no evidence of that and I accept her evidence.

   [2] At paragraph 37 of the Family Report dated 24 March 2016.

4. As to the child and her relationships with her parents, the evidence of the Family Consultant was that the child was reserved in her temperament and was secure in her relationships with both the mother and the father.  The Family Consultant observed at paragraph 43 of her report that the child’s ability to complete each of the stories referred to in that paragraph with a satisfactory child-focused ending suggests that the child has experienced her significant adults as being emotionally and psychologically competent.

5. I add at this time, and I may be adding it again, that this reflects well on both parties but, in particular, the mother.  The mother had the capacity, if she had turned her mind to it, to alienate this child from the father.  She did not do so.  The fact that this child has the close relationship that she has with her father reflects well on the mother’s parenting, notwithstanding her concerns about the father and her own issues as to anxiety.  It also reflects well on the father in that the child is comfortable with him so, whilst there are some issues that were raised, it appears that the child reacts well with him.  And, in fact, the Family Consultant observed that each parent appeared relaxed and emotionally connected.

6. In terms of the mother, the Family Consultant observed their interaction was one of spontaneous joy.  As to the father she observed that the child was close to him and that he was gentle and calm with the child throughout observations. 

7. In her evaluation of the family, the Family Consultant observed that the child had a positive relationship with both parents and each of her grandmothers, and I note that each of the child’s grandmothers is here in Court today.  There were differences in the relationships between the parties which the Family Consultant said can often be complementary. 

8. It was the view of the Family Consultant that, given the age and the nature of this child, any change should be gradually increased to ensure that the security that the child now enjoys continues and that she is comfortable with those arrangements.

9. The Family Consultant observed, at paragraph 54, that on the information before her the child would be required to live between two acrimonious homes and communicate, where communication is limited, in a tense manner.  Conflict and hostility between the parents has been repeatedly shown in the literature to negatively affect the child’s well-being.  The Family Consultant said that the child’s relationships with the parents had not been compromised by this circumstance.  She indicated that the father had limited understanding of the impact upon the child and on the mother of his approach and his views of the mother.

10. The Family Consultant’s evidence was not seriously shaken in cross-examination and I accept her evidence is reliable, although I will be making comments in respect of the basis upon which she concluded sole parental responsibility ought be made later in these reasons.

11. The Family Consultant said both parents were emotionally and psychologically competent.  She expressed some concerns about the father’s intense expression of his relationship with the child as set out in paragraph 23 of the report.  In some regards, she was concerned that the father may have been somewhat competitive in terms of the different arrangements between the parties.  The Family Consultant said, and I accept, that the father although serious and less animated provided a different set of benefits for the child.  Given the exchange of emails, to which I will allude later in these reasons, I am not sure that that is a fact upon which the assessment for sole parental responsibility can be reasonably based. 

12. The Family Consultant had no concerns about the way the child behaved and said that the child was developing normally (see paragraph 40 and 41 of the Family Report dated 24 March 2016).  The child was excited when she saw the father, and the Family Consultant said this was an indication of the child’s close relationship with him and reflects well, as I said, upon the mother’s capacity as a parent. 

13. The Family Consultant formed the view, which evidence I accept, that the father was in the context of that communication disparaging of the mother, although there is no evidence that this occurred in the presence of the child except perhaps in a most minor of senses in that the child does not say goodbye the maternal grandmother when she delivers the child to the father.  Although in the context of the types of matters we generally see in this Court that is at the lower range of worry.

The father

1. The father gave evidence in terms of his affidavit filed 22 March 2016, and also his earlier affidavit of 9 September 2013 in terms of paragraphs 62 to 68, 85, 183 to 184 and 198.  The father has never seen the child with her mother, and as such his views of the mother and her parenting of the child seem to have developed from his own poor opinion of the mother.  Similarly, his view of the parenting of the child being done by the maternal grandmother is also formed in the absence of any direct observations.  The intensity of the father can be seen in terms of the detail of the affidavit and the material he put in the affidavit, which he said he drafted himself.

2. The father was cross-examined in relation to paragraphs 18, 22, 23 and 25 of the Family Consultant’s report.  In many ways his affidavit and evidence was different to that observed by the Family Consultant.  The father in his evidence resiled from some of that which he said to the Family Consultant.  I am troubled as to the accuracy of his recollection because I accept that the Family Consultant was frank and careful in the giving of her evidence.  There are some signs that the father showed some limited insight in terms of his acknowledgement of the importance of the mother to the child. 

3. On that evidence I was concerned about the father’s capacity to undertake the process of shared parental responsibility subject to what I am going to say later, that is, that the father is close and engages well with the child and that the child is close to him.  He thinks through carefully of the times he has with the child and is adopting age appropriate and child focused activities.  This includes gardening time and engagement with his family.  There is no doubt that he loves the child and the child loves him.

Ms J Paggett

1. Ms J Paggett (‘the paternal grandmother’) provided evidence in her affidavit filed and sworn 23 March 2016.  She was not required for cross-examination, and as such her evidence came before the Court without controversy.  She described her observation of the child’s time with the father in positive terms.  Her evidence supports the father’s assertion as to that quality time.  Give that it was uncontroversial I treat the evidence as reliable. 

The mother

1. The mother gave evidence in accordance with her affidavit sworn 22 March 2016 and filed 23 March 2016.  The mother was clearly nervous, but answered questions frankly and at times contrary to her perceived interests.  She was asked questions about the child attending I School and observed that her information at this time was quite limited.  It was based upon her time at the school and she has not made any application or put the child on a waiting list.  She’s not aware of the fees.  The mother frankly conceded that the child may not get into that school.  The mother is not religious herself and is unsure about the fees which are to be paid to I School.

2. The mother has had some health difficulties and history which in the past have caused her problems, but these are clear.  She suffers from anxiety, but that is well medicated and there is no evidence that she is other than in good mental and physical health.  The mother is open to receiving assistance and manages that health well, although the interaction with the father causes her anxiety.  Interestingly, the mother walks with the child most days when she goes to the father’s care, although waits at the bottom or top of the driveway.  The mother has remained outside when the child is returned waiting for the child to return. 

3. The mother treats the child as a delight in her life.  It was a wonderful turn of phrase that she used about the importance of the child to her.  Similarly, the father treats the child as a delight in his life.  In many regards, this child is fortunate to have two parents who care so much for her.  The sadness is, of course, that the matter is here before me and the parents are unable to resolve it.  The mother was taken aback when she saw the father at the time of the interviews for the family report, and I accept that that was a true reflection of her at that time. 

4. What was interesting in this case, and what marks this case as unusual from many cases, is the material provided through the father’s counsel in Exhibit F2.  That showed that communications between these parties in writing and electronically was good.  It was respectful and the parties provided polite information to each other and polite and respectful responses.  There is evidence of humour between the parties.  In October 2013, there was a sensible request to take the child to a party.  The mother agreed.  In November 2013 there was a cancellation of time with the child.  There was no rancour or anger.  There was merely inquiry as to why; a suggestion of make-up time and the communication in the light of the litigation that was going on was quite, as I said, unusual.

1. The mother has kept the father informed as to the child’s health.  In February 2014, the father wanted to attend a christening and sought information from the mother.  The parties entered into negotiations and they worked out a simple solution and a sensible solution. 

2. In March 2015, the father informed the mother that the child had been unwell and what steps they took. The mother responded, as many of us do, “Thank God for Google”,[3] and kept the father informed. There were some earlier difficulties with regard to obtaining a passport for the child. The mother was clearly upset or perturbed that the passport was not issued much earlier, and that came clear in her affidavit.

   [3] Exhibit F2.

3. However, I am wondering whether part of this was simply about Chinese whispers.  When I read this communication there were often times where the parties did not read the letters as perhaps well as they should have.  For example in the latter time there was a request for the passport so the child could go to Asia that operated perhaps not at the speed that the mother wanted, but in an effective, respectful and sensible way; even to the extent that the father provided a letter which the mother may have needed which the mother had not remembered to enable her to leave the country.

4. One of the most interesting aspects of this was in respect of the child commencing preschool.  The mother suggested that the child attend a preschool.  The father agreed, but then the mother wrote back and said, “Well, I’m concerned that what you said in Court showed that you weren’t really agreeing”, and she was bending over backwards to try and accommodate the father in terms of the child’s preschool.  It was unusual communication to that which we often see.

5. I accept the mother as a generally reliable witness.  I accept that she is child focused and frank in her evidence.

SECTION 60CC FACTORS

1. As to the relevant section 60CC factors, I have had regard to all of the factors that are relevant. 

2. In terms of section 60CC(2)(a), the benefit to the child in having a meaningful relationship with both parents, there is no doubt on the case of either party that there is a real benefit in this child having a meaningful relationship with both parents.  The child has thrived under the primary care of the mother for this part of her life, and despite the litigation between the parties they have enabled the child to forge a loving relationship with each parent.  I am somewhat concerned that the child does not speak of the mother in the father’s household as this may be indicative that the child feels constrained in that respect, and perhaps is also reflective of the child’s unwillingness to say goodbye to the maternal grandmother, or that latter may simply be that the child was so excited to see her father and so child focused that she rushes to him.

3. Whatever orders I will make I will ensure to the best that I am able that the child will continue to have the benefit of a meaningful relationship to each of the parents so that each can provide in their own different ways strengths to which I have alluded to earlier and to which the Family Consultant referred.  There is no issue in this case that the child is at risk of harm of being subjected to or exposed to abuse, neglect or family violence.  Accordingly, that is a factor to which I will have no regard.

4. As to the child’s views, she is aged four and a half.  She has a close relationship with both parents; however, her views are not, in the circumstances, of any great weight. 

5. In terms of s 60CC(3)(b) of the Act, the primary carer of the child has been the mother, and the child has developed well in that care. The child passes easily from one family to another. In the context of a family who really have not lived together as a family that is a credit to both parties at many levels. Each of the parents provides for the needs of the child in effective ways as set out in their respective affidavits.

6. Each of the parents are supported by loving grandmothers who assist in their own effective ways; the maternal grandmother in terms of changeover, and in terms of making the changeover easy, and from the correspondence conveying positive information between the parties.  The paternal grandmother has also engaged in the child’s life in a positive way as is set out in her affidavit.

7. In terms of s 60CC(3)(c), the willingness and ability of each of the child’s parents to facilitate and encourage a close relationship I repeat what I have said earlier.  The mother was initially reluctant to encourage a relationship between the child and the father.  The mother has come a long way since September 2012, and that is reflected in the smoothness of the changeovers and the relationship to which I have referred earlier.  As I have said earlier, I am concerned about the father’s view of the mother’s mental health and his view of the parenting of the child by the mother in the absence of information. 

8. In terms of s 60CC(3)(d) of the Act, the likely effect of any change, the Family Consultant addressed this in terms of the sensitivity of the child and her temperament. It is in that context that the Family Consultant recommended that increases in time should occur but over a period of time. It is a credit to both parties that they have adopted that course, although at different rates of time. Any change will need to be undertaken over a period of time and reflect the particular need of the child.

9. In terms of s 60CC(3)(e) of the Act, the practical difficulty and expense of the child spending time, the parties live close to each other, within walking distance. The child lives close to the school and the grandmothers are nearby. The only practical difficulty is that displayed by the parties in terms of the mother’s anxiety and express fear of the father, although that anxiety and fear are well-managed by the mother in well-constructed and well-set-out arrangements. I was concerned about the difficulty in communication, although Exhibit F2 disabused me of that notion to a great degree.

10. In terms of s 60CC(f) the capacity of the children’s parents and grandparents to provide for the needs of the child including emotional and intellectual needs, there is no issue that the mother has provided for the child physically, emotionally and intellectually.  As I said earlier, she would not have reached the stage she has or developed without that support.  This is to be seen in the light of the relationship failure during the pregnancy and the mother’s perceptions, rightly or wrongly, that the father was controlling and abusive of her.  As I said earlier, this has not led to the undermining of the child’s relationship.  Quite the contrary; the child’s relationship has blossomed.  This should continue well into the future given the evidence of the mother, which I accept; the evidence of the Family Consultant; and, frankly, the huge effort the father has put in in maintaining the relationship with this child.

11. Some examples of this are in terms of the Christmas present that the father made or assisted the child make for the mother over that period of time.  I am quite confident the father was not planning to give a Christmas present to his ex-partner.

12. I am confident that he was endeavouring to do something for the child, which he saw in the interests of the child. I am satisfied that the parties are able to effectively communicate. In terms of ss 60CC(3)(g) and (h) of the Act, there were no submissions made in that respect.

13. In respect of section 60CC(3)(i) of the Act, I simply repeat what I have said above.

14. In terms of section 60CC(3)(j) and (k) of the Act, I repeat what I have said earlier.

PARENTAL RESPONSIBILITY

1. In terms of parental responsibility, I have determined that there ought to be equal shared parental responsibility in this case.  I have done so given the evidence of the exchanges of communications between the parties since late 2013.  It has been hard for the mother, but she has managed well and I am satisfied that the parties, given the nature of their communication, can continue in that regard.

2. There is also a risk that judges can be misled by being given correspondence which is set up in the context of a communication.  However, much of this communication took place before the decision of his Honour, the Deputy Chief Justice, and certainly before the appeal which brought the matter back to me.  I am satisfied there is some element of people trying to behave themselves in the light of the Court, but often parties in this Court are not so constrained and I am satisfied that the parties, just in the nature of that communication, have genuinely tried to focus on the needs of the child.

3. In terms of time, I struggled with the outcome.  I am conscious of the evidence given by the Family Consultant and the remarks made by her.  Any change I put in place will take place over years or not to the extent suggested by the father, but it will move to significant and substantial time by the end of 2018.  I have divided that into two areas: firstly, into the school holidays where I have structured the orders to build up to school holidays so that, by the end of 2018, by which time the child will be at the end of her second year of primary school, school holidays will become effectively equal.

4. In terms of the time during the week, I read carefully the submissions made by the Family Consultant and I have determined to follow her recommendation: which is essentially, to leave the status quo as it is for a period of time, then to build up to an overnight on the alternate Monday night, and then eventually to build up to a Friday night.  However, where it ended up, I sat and I reflected for a long time.  I have determined to leave that time at four days at the end of that period of time, given the nature of this child and given two things:  the first is the father’s express views to the Family Consultant regarding the mother and the mother’s anxiety.  It would seem to me to lead to the time sought by the father at this stage is one step too far and may not be in the best interests of this child in the circumstances that she finds herself.

5. Secondly, in terms of the schooling, I intend to leave the child at H School.  The mother clearly wants the child to go to I School, however, given her frank evidence about the steps that have been taken by her so far, I am not convinced that that change is warranted at this time.  The child is settled in that school.  The child will, no doubt, continue in that school with people with whom she has spent recent months and will spend the rest of this year, and it is close to the homes of both parties.

6. The mother could not produce details of the cost of the education and, having regard to the comments of the Family Consultant about the temperament of this child, less change may well be the better.  That does not mean it is not open for the parties to consider when this child goes to high school in year 7, which is so far ahead, and I do not think either of the parties really want this child to get there in a hurry, albeit it is a decision the parties will need to make given the circumstances of the child and given their financial circumstances at that time.

7. I was also asked to make a decision in relation to travel overseas outside school holidays.  It seems to me that, given the nature of the orders that I am putting in place, any time that the child would be away overseas with one parent or another during school term will need the consent of the other parent.  It follows logically that, if the father decides to go overseas for six weeks in the second half of a school holiday period and the child misses out on two weeks of school, he cannot do that without the mother’s consent and vice versa.  Accordingly, I will be putting a provision in there that overseas travel during school term will need to be with the consent of the other party.

8. Another matter which troubled me in this case in a minor way was order 7.  There was no address in regard to order 7 of the Deputy Chief Justice.  That was the order that said the child’s name is B Paggett-Cable and went on to require the parties to attend to the registration of that name.  The Full Court were somewhat unclear as to what was meant by that.

9. However, I did read the last page of an annexure to the mother’s affidavit which says:-

   As directed in the final order, the child’s birth certificate has been updated and is available from Births, Deaths and Marriages.

   I take it then that the child’s name has been changed.  If I am wrong in that respect, I will give the parties leave to apply and argue that aspect of it because it was just not clear to me and I did not want to leave the parties having to come back to another Court to go through another process in respect of that name change.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 April 2016.

Associate:     

Date:              15 April 2016