PANDEY & BOYLE

[2015] FCCA 2775

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANDEY & BOYLE [2015] FCCA 2775

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – equal shared care – where equal shared care not seen as viable – substantial and significant time.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA

Cases cited:
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713

Applicant: MS PANDEY

Respondent: MR BOYLE

File Number: CRC 319 of 2014

Judgment of: Judge Scarlett

Hearing date: 22 September 2015

Date of Last Submission: 22 September 2015

Delivered at: Sydney

Delivered on: 19 October 2015

REPRESENTATION

Solicitor for the Applicant: Mr Oliver

Solicitors for the Applicant: Robson & Oliver

Respondent: In person

ORDERS

BY CONSENT

1. All earlier parenting Orders are discharged.

2. The Applicant mother and the Respondent father are to have equal shared parental responsibility for the child X born (omitted) 2008.

3. Both parents are to have telephone contact with the child X at any reasonable time and any change in contact telephone number is to be advised to the other parent as soon as practicable.

4. Both parents are to have written contact with the child either by normal postal mail or electronic means including email at any reasonable time and the parents are to provide their addresses to each other.

5. The parents are to spend time with the child X during school holidays on a week about basis:

   (a)in even numbered years the mother is to spend time with the child in the first week of the holidays; and

   (b)in odd numbered years the mother is to spend time with the child in the second week of the school holidays.

6. In respect of Christmas in each year:

   (a)in odd numbered years the mother is to spend time with the child from 1:00 pm on Christmas Eve until 1:00 pm on Christmas Day; and

   (b)in even numbered years the mother is to spend time with the child from 1:00 pm on Christmas Day until 1:00 pm on Boxing Day, after which time the provisions of Order 5 will continue.

7. The parents are to spend time with the child X on their respective Mothers’ Day and Fathers’ Day for the duration of the day and if that day should fall on a day when the child is in the care of the other parent then that parent’s time with the child will be suspended for the day.

8. The child X is to spend time with the mother on her birthday for the duration of the day and is to spend time with the father on his birthday for the duration of the day.

9. The child X is to spend time with his half-sisters Y and A born (omitted) 2001 on their birthday for the duration of the day and with his half-brother Z born (omitted) 2007 for the duration of the day.

10. If the child’s birthday falls on a day when he would otherwise be in the care of his mother according to these Orders he will spend time with his father for a period of three (3) hours and if the child’s birthday falls on a day when he would otherwise be in the care of his father according to these Orders then he will spend time with his mother for a period of three (3) hours.

11. The parents are to have additional time with the child and by variation of the above Orders by agreement, provided that such agreement is evidenced in writing, including but not limited to text messages.

12. The parents are to have additional time with the child and by variation of the above Orders for special events, trips, excursions and the like, provided that such additional time is evidenced in writing and that the time taken be made up to the other parent forgoing the time.

13. Whilst the Applicant mother is working at (occupation omitted) then pick up for the mother will be from the father’s home at (omitted), otherwise pick-ups are to be split 50% (omitted)/50% (omitted) or as agreed in writing or by text.

AND IT IS FURTHER ORDERED THAT

1. The child X born (omitted) 2008 is to live with the mother during the school term as follows:

   (a)In Week One of a four week cycle from immediately after school on Wednesday until the commencement of school on the following Monday morning;

   (b)In Week Two of the cycle from immediately after school on Wednesday until the commencement of school on the following Friday morning;

   (c)In Week Three of the cycle from immediately after school on Wednesday until the commencement of school on the following Monday morning; and

   (d)In Week Four of the cycle from immediately after school on Wednesday until the commencement of school on the following Thursday morning; and

   (e)The child X is to live with the father on all other days in the said cycle.  

2. Changeover where the child goes from the care of one parent to the care of the other parent according to the immediately preceding Orders is to take place at the child’s school or such other place as the parents may agree in writing.

3. The mother is to provide to the father within fourteen (14) days a mobile telephone number which is to be used for sending telephone or text messages about the care, welfare or development of the child X and for no other purpose.

4. The mother and father are to do all things necessary to obtain for the child X an Australian passport which is to be held by the mother until required.

5. The mother and the father are each permitted to take the child X born (omitted) 2008 out of Australia for the purpose of a holiday PROVIDED THAT the parent seeking to take the child out of Australia provides to the other parent no less than two (2) months’ written notice of his or her intention to do so and no later than three (3) weeks prior to the date of proposed travel provides to the other parent:

   (a)A written itinerary setting out dates of travel and details of airlines and flight numbers; and

   (b)A written list of the proposed places where the child will be staying whilst out of Australia including addresses and telephone and fax contact numbers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 319 of 2014

MS PANDEY

Applicant

And

MR BOYLE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders relating to the parties’ son X, who was born on (omitted) 2008 and is therefore six years old. He will turn seven in (omitted). The child is currently living mainly with his father, the Respondent.

2. The parties have negotiated consent orders about matters concerning the child’s time with each parent during school holidays, birthdays, Mothers’ Day and Fathers’ Day and Christmas and have submitted signed Consent Orders to that effect. Those Orders have been edited slightly for clarity and the removal of such phrases as “ditto – as in 7 above”.

3. Regrettably, the parties have been unable to agree on the major issue of the amount of time that the child will spend with each parent during each week of the school term. They also have not recorded any agreement as to whether the proposed orders are to provide that the child is to live with one parent and spend time with the other, or whether they intend it to be a shared care arrangement.

4. A handwritten Minute of Consent Orders has been submitted. Although the Minute is headed “By Consent until Further Order”. It was not put to the Court that the matter requires dates for a final hearing. Mr Oliver has explained to the Court that the purpose of submitting the Minute of Orders in that form was to provide for the fact that the Court would be making final Orders after considering the evidence and the parties’ submissions.

5. The fact is that the proceedings were commenced almost a year ago and interim parenting Orders were made by consent on 10 February 2015. A Family Report was prepared and released to the parties on 15 September. The parties have been negotiating about final orders and, to their credit, they have for the most part succeeded. There are only a few maters that require a judicial determination.

Background

1. The mother was born on (omitted) 1981. She is 33 years of age and will attain the age of 34 (omitted) this year.

2. The father was born on (omitted) 1963. He is therefore 51 years of age. He will attain the age of 52 in (omitted).

3. The parties did not marry. The Applicant’s Initiating Application filed on 14 November 2014 states that the parties commenced to live together on (omitted) 2010 until 1 May 2013, but it is difficult to ascertain the details of this from the mother’s supporting affidavit.

4. According to her affidavit, the mother and the father met in (omitted) 2006 and commenced a relationship.[1] The mother deposed that at that time the parties did not live together.[2] In February 2009 the parties separated.[3]

   [1] Affidavit of Ms Pandey 10 November 2014 at the second paragraph [1]

   [2] Ibid at the second paragraph [2]

   [3] Ibid at [4]

5. The parties were still separated in 2010 when an Interim Apprehended Violence Order was made against the father on 18 May 2010, naming the mother and the parties’ child X as protected persons. A final Order was made on 15 July 2010, in force for 12 months.

6. The father deposes in his affidavit of 3 February 2015 that the mother moved back in with him at some time when the Final Order was still in force and it was revoked at a later date.[4]

   [4] Affidavit of Mr Boyle 3.2.2015 at [12]

7. The mother deposed that the parties reconciled “in or about November 2011”.[5]  She also deposed that:

   In February 2012, all three of my children and I moved in with the Respondent at his home in (omitted).[6]

   [5] Affidavit of Ms Pandey 10.1.2014 at [14]

   [6] Ibid at [15]

8. The mother deposed that, after an incident on 3 August 2013, she and the children left the home and moved in with friends. After three weeks they moved into rental accommodation.[7]  

   [7] Ibid at [17], [20]-[21]

9. There is one child of the relationship, X, who was born on (omitted) 2008. He currently lives with the father. The mother states in her affidavit that on or about 17 August 2013 the father took the child X to live with him.[8]

   [8] Ibid at [26]

10. The mother has two children from a prior relationship, twin girls named Y and A. They were born on (omitted) 2001. They are fourteen years of age.

11. The father has one child from another relationship, a boy named Z, who was born on (omitted) 2007.

12. The mother has formed another relationship with a man named Mr J, but they do not live together.

13. The father has formed another relationship with a lady named Ms C. They have been living together for approximately nine months.

Procedural History

1. The mother commenced proceedings by filing an Initiating Application on 14 November 2014. The Application was returnable on 10 February 2015.

2. The father filed a Response on 6 February 2015.

3. On the return date, 10 February 2015, the parties entered into interim consent Orders as to parenting. The Orders provided that:

   a)the parties were to have equal shared parental responsibility for the child X;

   b)the child would spend time with the mother as follows:

   2.1    from after school Wednesday until before school Friday each week;

   2.2    each alternate Thursday until Saturday 4.00 pm

   2.3    One weekend per month from Wednesday after the Mother finishes work until Monday before school commencing Wednesday 11 February 2015

   2.4    Via telephone at any reasonable time.

4. The Court ordered that a Family Report should be prepared under the provisions of s.62G of the Family Law Act 1975 (Cth).

5. The Application was adjourned to 6 July 2015 for mention.

6. The mother’s former solicitor, from Legal Aid NSW, filed a Notice of Withdrawal on 5 March 2015. The mother’s present solicitor filed a Notice of Address for Service on 21 May 2015.

7. On 6 July 2015 the matter came back to Court for mention. The Court noted that the parties had on the previous Tuesday attended on the family consultant who was to prepare the Family Report. The mother’s solicitor, Mr Oliver, undertook to the Court to obtain instructions to provide the father with a telephone number for the mother so that the father could contact her in relation to the child.

8. The Application was adjourned to 22 September 2015 for mention at 11:30 am.

9. The Family Report was completed on 11 September and released to the parties by order of the Court on 15 September 2015.

The Family Report

1. The Family Report was prepared by a Regulation 7 Family Consultant, Mr P, a psychologist based in Brisbane.

2. For the purposes of the Family Report, Mr P interviewed the following people:

   a)the mother;

   b)the father;

   c)the child X;

   d)the mother’s daughters Y and A;

   e)the father’s son Z; and

   f)Ms C.  

3. The Family Consultant also observed the child X in the company of his mother and half-sisters and in the company of his father, Ms C and Z.

4. In history in the Family Report, Mr P noted that:

   …the current arrangements are quite complex. The mother seeks a greater level of simplicity with respect to the arrangements to enable more predictability, stability and routine for X.[9]

   [9] Family Report page 8 at paragraph [15]

5. The Family Consultant noted that the parties were in dispute about how the time that X spends with his parents was to be divided. He also identified the following issues that separated the parties’ positions:

   a)Allegations of family violence;

   b)X’s attachments and his relationships with each parent and significant others;

   c)The viability of the current arrangements; and

   d)Parent communication.[10] 

   [10] Family Report page 9 at [21]

6. The mother told Mr P that she lived in a rented house but did not wish to disclose her address.  It is a four bedroom house which she shares with her two daughters and X, when he stays with her.

7. The mother said that she had moved into a (occupation omitted) at the (employer omitted) where she works and her availability is quite predictable now that she works standard hours. She told Mr P that the father would not negotiate with her and she felt that he controlled all the arrangements.

8. Mr P stated that the mother described the current arrangements for X’s care in this way:

   60.    She collects X from school each Wednesday.

   61.    X spends time with her in a four week cycle as follows:

   Week one

   After school Wednesday to 4pm Saturday             Three nights

   Week two

   After school Wednesday to before school Friday Two nights

   Week three

   After school Wednesday to before school Monday    five nights

   Week four

   After school Wednesday to before school Thursday One night

   This equates to eleven nights in each four week period.

   62.    She is seeking Orders around parenting arrangements that will provide for more stability and less confusion. She wants more time with X and will be happy with a week about shared care arrangement.[11]

   [11] Ibid page 15 [60]-[62]

9. The father told the Family Consultant that he lives in a four bedroom house that he built. He works as a (occupation omitted) and has flexible work hours. He said that on average he probably worked three and a half full (eight hour) days per week.

10. The father said that the arrangements for his son Z had been consistent for years and expressed a view that the arrangements should remain the same because it allowed the boys to be together.[12] When the Family Consultant asked him whether he thought X saw enough of his mother:

    …he commented that X does not seem to ask for her. However, he said that he would certainly take X to see his mother if he ever asked.[13]

    [12] Family Report page 21 [112]-[113]

    [13] Ibid at [114]

11. When Mr P put to the father the mother’s proposal of X spending five nights with him per fortnight, he asked “who will collect X from school(?)”.[14]

    [14] Ibid at [116]

12. The father explained that when he works full days he works only school hours if the boys are in his care.[15]

    [15] Ibid at [117]

13. The father rejected the mother’s proposal for shared care as not being feasible because of the mother’s work hours.

14. The father complained that his last written communication with the mother was by text message on 1 April and the mother only now communicates via Facebook.

15. The father’s partner, Ms C, was interviewed. She described herself as having a very positive relationship with both X and Z. She also said that she got on quite well with the mother. Ms C did express concern about there being no way to contact the mother except via Facebook.

16. The Family Consultant said of Ms C:

    She presented as a very child-focussed and insightful person.[16]

    [16] Ibid at [196]

17. He also noted that she and the mother smiled at each other and exchanged greetings in a friendly manner when they met at the interviews.[17]

    [17] Ibid page 35 at [269]

18. The mother’s two daughters, Y and A, were apparently interviewed together. They did not give a positive description of the time when they and their mother lived with the father.

19. They spoke highly of X:

    200.  Both spoke in positive terms of X and how they enjoy spending time with him. They said that when he is with them, he loves to play with his toys and he loves watching TV. He is always very affectionate.[18]

    [18] Family Report page 29 at [200]

20. Both girls said that they would definitely like X to spend more time with them. They said that X seems happy to spend overnight time with them. He occasionally talks about Z but not all that often.

21. The child X was described by the Family Consultant as a “bright and articulate child”[19].

    [19] Ibid page 31at [216]

22. X “spoke very fondly about his father who he sees as a humorous character. He also spoke very positively about his brother Z and said that he plays the most with Z”.[20]

    [20] Ibid page 31 at [222]

23. The child said that his father’s house was “more fun” because they had “more stuff” there and they could “do more stuff”.[21]

    [21] Ibid page 32 at 226]

24. Mr P noted that there was no indication from the child’s comments that he would prefer to live for more time in either parent’s home except when he was asked directly:

    “If you could spend more time with anybody, who would you choose”. After some reflection, he responded with the word “mum”.[22]

    [22] Ibid page 32 at [232]

25. Z, the father’s son from another relationship, said that he lived with his father from Tuesday to Wednesday and sometimes for a full weekend but said that “it changes all the time”. He said that he would like to spend more time at his father’s home because “he is able to play with X and he likes that a lot”.[23]

    [23] Ibid page 33 at [236]-[237]

26. The two boys were observed together with the father and Ms C. Their interactions were described as “marked by warmth, enthusiasm, laughter, smiles and appropriate voice tone”. [24]

    [24] Family Report page 33 at [246]

27. Mr P made this significant comment:

    It was most definite that the relationship between X and Z is a very significant one.[25]

    [25] Ibid page 34 at [253]

28. The Family Consultant also observed X in the presence of his mother and sisters, noting that the boy ran to his mother when he saw her and greeted both his mother and his sisters with hugs. The mother and the girls were appropriately attentive to the child and the interactions were “marked by smiles and fairly constant verbal communication between X and his mother”.[26]

    [26] Ibid page 35 at [267]

29. The Family Consultant’s evaluation was that the parents’ relationship in the past had been marked by considerable conflict and resentments but there seemed to have been some improvement in the parties’ co-parenting relationship. However, the father was frustrated by the difficulty in only being able to communicate with each other by Facebook and noted that he does not know the mother’s address, which she is reluctant to provide.

30. Mr P expressed the view that the communication between the parents was not at such a level that it would support an equal shared care arrangement.

31. Further, Mr P noted that the child currently spends time with his mother for eleven nights out of twenty-eight in a four week cycle.

1. The Family Consultant recommended that the Court should give consideration to the fact that X has a very significant with his half-brother Z. However, he had difficulty clearly delineating exactly when Z spends time with his father. Whilst the father gave the impression that the current arrangements were in accord with the times that Z spends with his father, Z’s comments at the interview were not completely consistent about those times.

2. The Family Consultant noted that X said at interview that he would like to spend more time with his mother if his wishes were granted. Of this issue, Mr P said at paragraph [279] of the Report:

   In terms of the amount of time that X spends with his mother, there would appear to be no reason why X should not have the opportunity to have a meaningful relationship with her and his sisters. The current arrangements provide him with the opportunity to have a meaningful relationship with his father and maximise his relationship with Z. In my view, the relationship with Z is probably the more important one to consider when compared to the relationship that X will have with his two significantly older sisters. He and Z are much closer in age and have very similar interests. They get along very well.[27]

   [27] Family Report page 38 at [279]

3. The Family Consultant recommended that, consistent with his recommendation that weight should be given to the significant relationship between X and Z, X’s wishes could still be accommodated if the arrangements were changed to allow for him to spend two additional nights with his mother in week one of the four week cycle. This would be accomplished by an arrangement whereby the child would be with the mother from after school Wednesday to before school Monday, which

   …would achieve a more consistent routine in that week one would be the same as week three whereas, weeks two and four would differ only in that X’s time with his mother would cease on Friday morning in week two and on Thursday morning in week four.[28]

   [28] Ibid page 39 at [284]

4. Mr P recommended that the parents should have equal shared parental responsibility for the child. He suggested the following arrangement at [289]:

   X lives with his mother for the following periods over a four week cycle:

   Week 1

   After school Wednesday – before school Monday         5 nights

   Week 2

   After school Wednesday – before school Friday      2 nights

   Week 3

   After school Wednesday – before school Monday         5 nights

   Week 4

   After school Wednesday – before school Thursday   1 night.

5. Mr P also recommended that the parties instigate an effective form of communication between them, suggestions being:

   a)Sharing of telephone numbers;

   b)Sharing of email addresses; or

   c)Communication between the father’s partner (Ms C) and the mother.

Submissions

1. Mr Oliver, for the mother, submitted that the mother sought the arrangement proposed by the Family Consultant plus the Monday night in week 4.

2. The father opposed that proposal, stating that there should only be one full weekend where the mother has X in her care for the whole weekend. Two full weekends a month would separate the boys X and Z too much.

3. The father handed up a written submission which is quoted in full:

   Current arrangements have been in place for over 2 years, with the addition of requested time by the mother in prior court orders.

   The mother’s work commitments do not allow Ms Pandey to pick-up or drop off X any of her chosen days. In undertake this at my own comfort and expenses and care for the good of my relationship with my son.

   Ms Pandey only informed me on Friday that she couldn’t have X on her allotted week of the school holidays due to work commitments. I find this very upsetting to myself and X.

   Z is of 8 years of age, X is of 6.

   This has been a continued arrangement between Ms Pandey and myself for over 3 years at least. The bond between my sons is very important to me as their father and both boys their quality time always together.

   I am pleased and more than happy with the communication & understandings between the parents regarding X.

   I have always promoted contact between X and his mother, making sure X calls his mother (on) a regular basis and on special occasions.

   The mother requests more time though cannot maintain or meet the current orders that are in place due to work commitments.

   The disagreement unable to be met is because it separates my sons on the allotted weekend requested.

   I am more than happy to substitute for another day, keeping my boys together.

   …

   I would also like to apply for an Australian passport for X.

4. Whilst the passport issue came “out of the blue”, Mr Oliver agreed that the child did not have one and offered no opposition.

Applications for Parenting Orders

1. When a court is dealing with applications for parenting orders, it must consider various sections contained in Part VII of the Family Law Act 1975. The particular sections that should be considered are:

   a)Section 60B, setting out the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, providing that the court must regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which shows how the court determines what is in a child’s best interests;

   d)Section 61DA, which contains the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child;

   e)Section 65DAA, which applies if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child and requires the court to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend equal time with each parent or, in the alternative, for the child to spend substantial and significant time with each parent.

2. All of those matters have been considered, so far as they are relevant.

Consideration

1. The Court has the advantage of a Family Report which was only released to the parties. It is a most comprehensive and detailed report, and the parties have largely agreed with its findings. The difference between them seems to be one of degree.

2. It should not be thought that the Family Report will necessarily decide a parenting case. Indeed, in a decision in a matter heard at the recent Coffs Harbour circuit sittings I decided not to follow the recommendations of the Family Consultant. In doing so, I referred to the well-known Full Court authority Hall & Hall[29], where it was held that:

   (a)     There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the  counsellor[30] is usurping the role of the court or that the judge is abdicating his responsibilities

   (b)    Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions.[31]

   [29] (1979) 5 Fam LR 609; FLC 90-713

   [30] Now called a family consultant

   [31] (1979) 5 Fam LR 609 at 615-616; FLC 90-713 at 878,819 per Evatt CJ, Asche SJ and Hogan J

3. In this case, however, neither party has sought to challenge the conclusions in the Family Report. It seems to me to be a well-prepared and thoughtful document which is worth considering by the Court.

4. The best interests of the child X must be the paramount consideration.

5. The primary considerations in determining what is in a child’s best interests are set out in s.60CC(2) and 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.

6. Subsection 60CC(2A) requires the court to give greater weight to the consideration of the need to protect the child from harm.

7. In this case, there are historical allegations of family violence and there was an Apprehended Domestic Violence Order made by the Local Court at Coffs Harbour. That order is no longer in force. The mother does not wish the father to know her current home address.

8. The benefit to X in having a meaningful relationship with both of his parents is a primary consideration. The Family Consultant is of the view that such a relationship exists with the father and half-brother Z but recommends that there should be a slight increase in time with the mother to promote the child’s relationship with her and with his two half-sisters.

9. Subsection 60CC(3) sets out the additional considerations for the court. The views of the child emerge clearly from the Family Report. He has a warm relationship with each parent but has a wish for a little more time with his mother.

10. The nature of X’s relationship with each parent is warm and loving. He has a strong positive relationship with his half-brother Z, which is reciprocated. This is seen by the Family Consultant, and by the father, as a very important relationship for this boy.

11. The child also has a warm and affectionate relationship with his twin sisters, but it is not as strong as the one he has with Z. This is partly due to the fact that they are some years older, whereas X and Z are more of an age.

12. I have considered the likely effect on the child of any change in his circumstances. He would not be happy if there were to be any major change in the amount of time he spends with his father and Z, although he would be happy to spend a bit more time with his mother and, therefore, his twin sisters.

13. There is no great practical difficulty or expense in the child spending time and communicating with either parent. The difficulty arises from the relatively poor communication between them and the father’s view that the mother’s working hours cause a difficulty in her collecting and delivering the child.

14. The parties have consented to an order that they should have equal shared parental responsibility for the child. Thus the Court must consider whether, under s.65DAA(1), it is both in the child’s best interests and reasonably practicable for him to spend equal time with each parent. The Family Consultant is not of the view that the communication between the parents is at such a level that it would support an equal shared care arrangement. I concur with that view.

15. The Court must now consider whether it is both in the child’s best interests and reasonably practicable for him to spend substantial and significant time with each parent (s.65DAA(2)). The recommendation of the Family Consultant is that the child should spend a bit more time with his mother, which is tantamount to substantial and significant time, being 13 nights out of 28 in each four week cycle. The mother now seeks that recommended arrangement plus, curiously, an additional Monday night in week four of the cycle.

16. The father does not object to the number of nights proposed, but to the particular timing, as he submits that it would interfere with the child’s time with Z. The difficulty with this submission is that nowhere in the father’s material has he provided evidence of the exact amount of time each week, fortnight or month that Z spends with him. If there is a Court Order or a parenting plan, it is not in evidence.

17. Z’s interview with the Family Consultant provided the information that Z lives with his father “from Tuesday to Wednesday and sometimes for a full weekend. He said that it ‘changes all the time”…He said ‘Dad tries to get a bit more time with me because he only gets two days per week”.[32]   

    [32] Family Report page 33 at [236]-[237]

18. This hardly supports the father’s claim that X should only spend one full weekend each four weeks with his mother because it would cut into the time that X and Z spend together.

19. The mother is, from her latest submission, seeking that the child spend 14 nights out of 28 with her by adding an additional Monday in Week 4. With respect, the reason for this isolated night is difficult to fathom. The mother’s proposal would also amount to an equal shared care arrangement, which the Family Consultant does not think is feasible, given the parties’ poor level of communication.

20. The Family Consultant makes a good case for the child to have a consistent arrangement in the amount of time he spends with his parents. I am of the view that the Family Consultant’s proposal offers substantial and significant time with each parent, with the child spending 13 nights out of 28 with his mother and 15 nights with his father. One advantage is that X will spend a little more time with his mother and half-sisters and only slightly less time than before with his father. The evidence does not allow a finding that he would spend any less time with Z than before.

21. Where possible, changeover should take place at school to avoid the parents having to meet more than necessary.

22. The parents need to have a means of telephone communication about the child. The Consent Orders do not adequately cover that situation at all. The mother needs to provide to the father a mobile telephone number which he can use to communicate with her specifically about the child, and for no other purpose. Communication via Facebook does not seem to be at all efficient.

23. The Family Consultant’s suggestion that the father’s partner, Ms C, should be a channel of communication does not appear to be a good idea. Ms C is portrayed in the Family Report as a child-focused woman who can communicate in a friendly and polite manner with the mother, but it seems rather unfair to place the responsibility on her of acting as a means of communication about the child.

24. There seems to be no reason why the child should not have a passport. The parents may wish to take him on a holiday out of the country at some stage, but they would need to give each other plenty of notice about their intentions.

25. I will order accordingly.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  19 October 2015