Pembleton & Annesley

FEDERAL CIRCUIT COURT OF AUSTRALIA
Pembleton & Annesley [2021] FCCA 535

File number(s): NCC 1307 of 2019

Judgment of: JUDGE TERRY

Date of judgment: 12 May 2021

Catchwords: FAMILY LAW – Parenting - dispute about parenting arrangements for a child aged 4 – where the mother was the child’s primary carer prior to her hospitalisation with a life-threatening illness when the child was under 2 - where the child has lived primarily with the father since that time – where the child has been spending two days each week with the mother since shortly after she left hospital in April 2019 – where the mother proposes that she resume primary care of the child and that he spend each alternate weekend and half of the school holidays with the father – where such a change would not be in the child’s best interests nor is it necessary to ensure that the child has a meaningful relationship with the mother – where a similar arrangement to the current arrangement is to be preferred - dispute about parental responsibility – where the mother is seeking sole parental responsibility and father is proposing equal shared parental responsibility – where an order for sole parental responsibility would not be in the child’s best interests - order made for the parents to have equal shared parental responsibility.

Legislation: Family Law Act1975 (Cth) ss 60CC, 61DA, 65DAA

Cases cited: Mazorski & Albright (2008) 37 FamLR 518

Number of paragraphs: 220

Date of last submission/s: 2 February 2021

Date of hearing: 20 May, 6, 7, 8 October and 16 November 2020 and 14 January and 2 February 2021

Place: Newcastle

Solicitor for the Applicant: LBK Solicitors

Counsel for the Applicant: Mr Boyd

Solicitor for the Respondent: West Tamworth Legal

Counsel for the Respondent: Mr Kelly
ORDERS

NCC 1307 of 2019

BETWEEN:
MS PEMBLETON

Applicant

AND:
MS ANNESLEY

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

12 MAY 2021

THE COURT ORDERS THAT:
1.All previous Orders regarding X born in 2016 (“the child”) are discharged.
2.The parents shall have equal shared parental responsibility for the child.
3.The child shall live with the father.
4.Until the child commences school in 2022 he shall spend time with the mother as follows:
(a)Subject to Orders 4(a)(iii) and (iv), during school terms:
(i)Week 1
A.On a fortnightly basis each alternate week during school terms from 4.00pm Friday until 9.00am Monday or until 9.00am on Tuesday if Monday is a public holiday.

(ii)Week 2
A.On a fortnightly basis each alternate week during school terms from 4.00pm on Wednesday until 4.00pm on Friday.

(iii)If the mother has spent time with the child in the last week of the prior school holiday period the Week 1 time will commence in the first week of the new school term and the Week 2 time will commence in the second week of the new school term.
(iv)If the mother has not spent time with the child in the last week of the prior school holiday period the Week 1 time will commence in the second week of the new school term and the Week 2 time will commence in the first week of the new school term.

(b)During the Term 1, 2 and 3 school holidays from 4.00pm on the second Monday of the holidays until 9.00am on the following Friday.
(c)During the 2021/2022 Christmas school holidays from 4.00pm on the third Monday of the holiday period until 4.00pm on the following Saturday and continuing each alternate week thereafter until the resumption of school in Term 1 2022.
(d)On the child's birthday from 10.00am until 4.00pm;
(e)At such additional or alternate times as may be agreed between the parties.

5.Upon the child commencing school in 2022 the time the child spends with the mother in accordance with Order 4 is discharged and he shall spend time with the mother as follows:
(a)In even numbered years:
(i)Each alternate weekend during school terms commencing in the first week of the school term from the conclusion of school on Thursday until the commencement of school on Monday.
(ii)For one half of the holidays at the end of Terms 1, 2 and 3 being from the conclusion of school on Friday until 5.00pm on the second Saturday of the holidays.

(b)In odd numbered years:
(i)Each alternate weekend during school terms commencing in the second week of the school term from the conclusion of school on Thursday until the commencement of school on Monday.
(ii)For one half of the holidays at the end of Terms 1, 2 and 3 being from 5.00pm on the second Saturday until 5.00pm on the third Sunday.

(c)From the commencement of Term 3 2022 in each alternate week being the week following the child spending the alternate weekend with the mother in accordance with Order 5(a) or (b) from the conclusion of school on Thursday until the commencement of school on Friday.
(d)Until the child reaches 8 years of age:
(i)In even numbered years each alternate week during the Christmas school holidays from Friday to Friday commencing on the first Friday of the holiday period;
(ii)In odd numbered years each alternate week during the Christmas school holidays from Friday to Friday commencing on the second Friday of the holiday period.

(e)Upon the child reaching 8 years of age in 2024 and thereafter:
(i)In even numbered years for one half of the Christmas school holidays from the conclusion of school on the last day of Term 4 until 5.00pm on the Saturday which is the midpoint of the holiday period; and
(ii)In odd numbered years for one half of the Christmas school holidays from 5.00pm on the Saturday which is the midpoint of the holiday period until 5.00pm on the last Saturday of the holiday period.

(f)On the child’s birthday (if it is not otherwise a day when he would be spending time with the mother) from after school until 7.30pm if a school day and from 10.00am until 4.00pm if not a school day;
(g)At such additional or alternate times as may be agreed between the parties.

6.If the child would not otherwise be spending the Mother’s Day weekend with the mother the father’s time with the child on that weekend is suspended from 5.00pm on Friday and the child shall spend the Mother’s Day weekend with the mother.
7.If the child would not otherwise be spending the Father’s Day weekend with the father the mother’s time with the child on that weekend is suspended and the child shall spend the Father’s Day weekend with the father.
8.Notwithstanding any other order the child shall spend time with each parent as follows:
(a)Odd numbered years
(i)With the father from 12 noon on Christmas Eve until 12 noon on Christmas Day.
(ii)With the mother from 12 noon on Christmas Day until 12 noon on Boxing Day.

(b)Even numbered years
(i)With the mother from 12 noon on Christmas Eve until 12 noon on Christmas Day.
(ii)With the father from 12 noon on Christmas Day until 12 noon on Boxing Day.

9.Changeovers which do not take place at school or pre-school shall take place by the father or his nominee delivering the child to the mother at Suburb B McDonald’s at the commencement of the time and the mother or her nominee delivering the child to the father at Suburb B McDonald’s at the conclusion of the time.
10.Each parent shall do all acts and things necessary to ensure that the child has telephone or video calls with the parent he is not with that day from 6.00pm on Mondays and Thursdays with the parent then having the care of the child to initiate the call and for the call to continue for as long as the child is willing to take part in the call.
11.In the event that either parent is hospitalised for any reason that parent shall notify the other parent immediately and arrange for the child to remain in the care of the other parent until such time as the hospitalised parent has been discharged.
12.If the mother needs to leave City C for medical appointments and is unable to arrange that appointment for a day when child is not in her care, she shall inform the father that she will be unavailable to care for the child and the child will remain with the father while the mother attends such appointments.
13.Each parent is restrained from denigrating the other parent or members of the other parent’s family to or in the presence or hearing of the child and is restrained from permitting any other person to do so.
14.Each parent shall as soon as practicable notify the other if the child is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed as suffering from a serious illness.
15.Each parent may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents and attend events at the child’s school normally attended by parents.
16.The parents shall keep each other informed of their landline and mobile telephone number, residential address and email address and advise the other parent of any changes to the same within 7 days of any such change occurring.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Pembleton & Annesley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY
Introduction

X, aged 4, is the much loved child of Ms Pembleton (“the father”) and Ms Annesley (“the mother”). Sadly they cannot agree about the amount of time X should spend with each of them or about the allocation of parental responsibility.
The mother was X’s primary carer for most of his life until she went into hospital with a life threatening illness when he was about 20 months old. It is clear from all that transpired during the hearing that she expected to resume primary care of him when she left hospital ten months later and that she is considerably aggrieved that this did not happen.
Currently X lives with the father and spends time with the mother for four nights per fortnight, from 10.00 on Tuesday until 4.00pm on Thursday each week. The father proposes that this increase to five nights per fortnight until X commences school in 2022 and that the days change so that it be each alternate weekend from Friday to Monday and from 4.00pm on the following Wednesday until 4.00pm on Friday during school terms. He also proposes that X spend blocks of four nights with the mother in each of the Term 1, 2 and 3 school holidays.
The father proposes that once X commences school in 2022 he spend time with the mother each alternate weekend during school terms from Thursday to Monday and for half of the school holidays, with the time during the Christmas school holidays to be week about.
The father proposes that the parties have equal shared parental responsibility.
The father said that X had a close bond with him and that it would not be in his best interests to make a radical change to his care arrangements. He also said that there was a possibility that the mother’s cancer may return and that it was important that he remained a strong presence in X’s life in case the mother was again unable to care for him.
The father said that the parties had a history of being able to agree about parenting arrangements for X and had the capacity to make an order for equal shared parental responsibility work.
At the time of the family report interviews in September 2019 the mother was proposing a shared care arrangement, which would have seen X living with her from Monday to Thursday each week and with the father from Thursday to Monday. However at trial her proposal was that X live with her and spend time with the father each alternate weekend from Friday to Monday during school terms and for half of the school holidays, with the time to be week about in the Christmas school holidays until X turned eight.
The mother said that her cancer was in remission, X had a strong bond with her and she was a competent parent and there was simply no reason why she should not resume her role as primary carer.
The mother also sought an order for sole parental responsibility.
In support of the order which was sought about parental responsibility the mother’s counsel submitted that the father always insisted on things being done his way and that the mother could not win an argument, and that unless an order was made for her to have sole parental responsibility her voice would never be heard if a major long term decision was required. He did not explain why it was proposed that the father’s time with X be limited to each alternate weekend from Friday to Monday during school terms.
The evidence
The father relied on his affidavit filed on 24 April 2020 and the affidavit of his former partner Ms D filed on 14 May 2020.
The mother relied on her affidavits filed on 15 May 2020 and 2 October 2020, the affidavit of her treating specialist Dr E filed on 7 May 2020 and the affidavits of the maternal grandmother Ms F, the maternal step-grandfather Mr G, the maternal grandfather Mr H, the maternal uncle Mr J and her friends Ms K and Ms L all filed on 11 May 2020.
The mother also sought to rely on the affidavit of Ms M filed on 15 May 2020.
Ms M is the mother of the father’s older child N who is now 13. N lived with the father and Ms M in a shared care arrangement from a young age but in recent times issues have arisen in that relationship and Ms M and the father are involved in litigation in this court about parenting arrangements for N.
The mother’s counsel submitted that Ms M could give relevant evidence in the case concerning X. In the Case Outline document he prepared he alleged that N had suffered from difficulties in the co-parenting relationship between the father and Ms M and he said that the mother did not want the same thing to happen to X. He also alleged that medical records would demonstrate that the father had emotionally abused N. He went on to say as follows:
It is conceded that the difficulties in the co-parenting relationship between the father and Ms M could be caused by either or both of these people being difficult to co-parent with. However, it is the mother’s case that when one looks at the background to the co-parenting arrangement between the father and Ms M it is the father whose co-parenting ability is limited.[1]
[1] Exhibit B Mother’s case outline document paragraph 51
I declined to allow the mother to rely on Ms M’s affidavit. Her affidavit suggested that she was attempting to run her case about N in the current proceedings and I was not satisfied that it would be X’s best interests or in the best interests of the proper conduct of the case concerning X to allow this to occur.
A family report was prepared by Dr O, a Regulation 7 family consultant.
All of the witnesses were cross-examined.
A tender bundle was prepared and at the end of the hearing each Counsel provided the court with a list of the documents in the tender bundle which they wished the court to read.
Before he cross-examined the family report writer the mother’s counsel called for production of her notes. They were produced and during submissions he sought to tender the entire bundle. He said that he pressed the tender of the notes “for the glaring omissions – things not in them.”
I could not see how I would be assisted by being required to read 48 pages of handwritten notes and I declined to receive them.
I want to make clear at the outset that I will not be able to resolve a number of the factual disputes in this matter, and it does not come to down simply to whether people are telling the truth.
There is always a risk that people’s recollections about events which occurred some time ago are inaccurate and that they have the time line muddled, and in a case such as this one where feelings are running high there is also a risk that the evidence given about past events is an inaccurate reconstruction or is coloured to achieve the outcome a party hopes to achieve or in the case of a witness by a desire to support the case of the party calling them.
An example of the unreliability of recollections is found in the evidence given by Ms K. In her affidavit she said that when the mother was in hospital and X was in the father’s care she returned X to the father’s home one day after she found him wandering on the road and that the father came to the door on his phone and did not seem concerned about what had happened. When she was cross-examined about this incident she said that the father came to the door and when he saw X said “Oh my God”.
The conduct of the trial
The trial took some time to complete. It was listed to commence in May 2020 but only one day of the allocated two days were available for it and it could not be concluded. It was allocated a further three days in October 2020 but that was still not enough. It had to be adjourned twice so that cross-examination of the family consultant could be concluded and it finally ended when submissions were made on 2 February 2021.
This came down at least in part to the way the mother’s counsel chose to run his case. He showed a regrettable lack of focus on the issue in dispute, which was parenting arrangements for X in circumstances where both parents agreed that he should spend time with each of them.
The mother’s counsel cross-examined the father for over 5 ½ hours. He did not challenge him about his parenting of X on a day to day basis or about whether X was attached to him, rather he mounted a sustained personal attack on him over his alleged failings as a partner prior to the mother going into hospital and (insofar as the parties were in a relationship during this period which was in dispute) during her hospitalisation and following her discharge from hospital.
The mother’s counsel insisted on dealing at length with a childhood issue of the father’s which was irrelevant to the issue the court had to decide. It is difficult to avoid the conclusion that he did so simply because the family consultant went into detail in her report about challenges the mother had faced in her childhood and difficulties she had at times faced in her relationship with members of her family and he considered it fair that the father should be challenged about difficulties in his upbringing and in his relationship with members of his family, rather than because it was likely to assist the court to determine parenting arrangements for X.
The father remained calm throughout cross-examination and the mother’s counsel openly expressed frustration about the fact that the father was not giving him the answers he wanted.
The mother’s counsel cross-examined the family consultant for over two hours. He challenged her professional competence and prior to ending his cross-examination of her he expressed similar frustration with the answers he was getting from her.
In closing submissions the mother’s counsel referred only briefly, if he referred at all, to X’s history of care, to the absence of any criticism by the mother of the father’s capacity to parent X on a day to day basis or to the evidence about the mother’s health which, while it established that she was currently well and in remission, did not rule out the possibility that she could have health issues in the future. Instead he reiterated his claims about the father’s failings as a partner, returned to the theme of the unfairness of X being in the father’s primary care, accused the court of “enabling the father to mislead it and continuing to enable him to mislead it leading to the position the parties were in” and made a further attack on the family consultant.

I intend to fairly consider the mother’s case based on the evidence before me and my concern about the approach taken by her counsel to the conduct of her case will not distract me from doing that, but the way her case was conducted did contribute to the significant delay in the trial being concluded.
Background
The father is 42 and the mother 32. They commenced a relationship in about 2015 and they have one child, X, born in 2016.
The father has a daughter N who was born in 2008. During the parties relationship she spent substantial and significant time with the father.
During the period leading up to the birth of X the father mainly lived in Town P, which is about 45 kilometres from City C. The mother sometimes lived with him but she also sometimes lived in Town Q where the maternal grandfather lives. Town Q is about two and a quarter hours from Town P.
The parties had an on-off relationship. The mother blamed the father for this and alleged that he would first accept and then reject her. The father alleged that the mother was unstable which caused her to come and go.
In support of her case that the father was the unreasonable one the mother attached to her affidavit numerous text messages exchanged between the parties but all that they demonstrate is that the parties were in a constant state of misunderstanding each other or feeling resentful and misunderstood. I cannot make a finding about why their relationship was unstable or attribute blame to one of them for it. The best that I can say is that it is clear enough that both parties wanted something that the other was not able to provide.
The family report writer said as follows, and in my view it accurately reflects the parties differing beliefs and perceptions about the relationship and illustrates why it is not possible for the court to make a finding about whose beliefs and perceptions are correct:
The parents agree that their relationship was complicated and continually on and off until their final separation, noting that there is a significant discrepancy related to when this occurred. The father is of the view that the relationship ended approximately 6 months prior to the child being born. The mother is of the view that it was approximately 12 months after the child had been born. The discrepancy appears to the family consultant largely to be the result of the frequently changing on and off nature of the parents’ relationship that has been a consistent feature. It appears that even when the parents were not in a formally identified relationship, they maintained contact, continued spending time together on occasion, and were often negotiating a reconciliation.[2]
[2] Family Report paragraph 12
X lived with the mother following his birth in 2016 and the father spent time with him on an ad hoc basis.
In January 2017 the mother and X were living in Town Q, either with the mother’s friend Ms L or with the maternal grandfather or with both at different times, and sometime in that month Ms L notified the Department of Family & Community Services (FACS) of a concern that X was not being fed enough.[3]
[3] Mother’s affidavit paragraph 291
The mother said that as a result the police did a welfare check and that FACS asked her to take X to a clinic for a check-up.
On 3 February 2017 the mother was at the father’s home with X when the police attended to do a welfare check on X, which the mother said was connected with the notification by Ms L. The father said that following this he and the mother had a discussion and it was agreed that he would take over the care of X. He said that with the mother’s consent he applied for a single parenting payment and that X lived with him until 8 June 2017.
The mother said that she told Centrelink that the father had primary care of X because the father manipulated her into doing so but that she remained X’s primary carer. According to her evidence she remained living in Town Q with X until toward the middle of 2017 and would bring X in to see the father every few weeks.
Toward the middle of 2017 the mother moved to City C. She suggested that there was a reconciliation. The father said that the parties lived separately. On his case X was still living primarily with him. The mother said that X was living with her and that the father would care for him during the day when she was working.
I am not going to attempt to make a finding about where the truth lies about all of this but it was common ground that in or about June 2017 the mother obtained her own accommodation in City C and that for the next twelve months X lived with her and spent time with the father on a flexible basis.
The father told the family report writer that between June 2017 and June 2018 the parents were amicable and collaborative in their parenting of X and that this period was conflict free and the evidence supports this.
In about May 2018 the mother began to feel unwell. She told the father about this and she asked the maternal grandmother, who lives in Suburb R on the Region S, to come to City C.
On 1 June 2018, shortly after the maternal grandmother arrived in City C, the mother went to a doctor and she was immediately admitted to City C Hospital. She said that she was told that day that she had cancer. She called the father who was at work and he came straight to the hospital. The following day the mother was transferred to T Hospital in City U and was formally diagnosed with cancer.
X spent the first week after the mother’s transfer to City U in the care of the maternal grandmother but the father then assumed care of him. He resigned from his job and began travelling back and forth between City U and City C with X so that X could see the mother. The Cancer Foundation provided accommodation in City U which the father and X stayed in when they came to City U and which the mother also stayed in when she was not required to be in hospital.
The father could not remain full time in City U because N was spending four days and three nights each week with him and he needed to travel back to City C to look after her. The mother agreed that the father could live in the unit she was renting in City C when he was in City C.
In November 2018 the mother’s treating doctors decided that she needed a medical procedure and she was transferred to V Hospital in Sydney for this purpose.
The father took X to see the mother on many occasions when she was in hospital. He was strongly pressed by the mother’s counsel about whether he could have done more but he was in a difficult position. He also wanted to spend time with N, indeed under the existing arrangements for her he had an obligation to do so, which limited the time he could spend in City U and later Sydney. There were also occasions while the mother was in V Hospital when the father was able to go in and see the mother but X was not permitted to do so because children under 16 were not allowed in the ward.
In her trial affidavit the mother acknowledged that the father supported her after she was diagnosed and she said that she was grateful to him for doing so. I do not accept that the father should be criticised for not doing enough to ensure that X spent time with the mother when she was in hospital.
On 10 April 2019 the mother was released from hospital and on 12 April 2019 she returned to City C and moved in with the father and X, who were still living in the unit in City C which was leased in her name.
It would seem from cross-examination that the mother viewed this as a resumption of cohabitation. However while the father agreed that he and the mother resumed a sexual relationship he did not characterise it as a resumption of cohabitation.
It was common ground that on 20 April 2019 the parties had an argument and the mother left the unit and took X to Town Q. However they gave differing versions about exactly what happened.
In her affidavit filed on 15 May 2020 the mother said that she and the father had an argument that morning and that the father verbally abused and threatened her and threw a glass bottle of butter chicken sauce at her. She said that she was frightened by his aggressive behaviour and after he went out she decided to leave the unit and go and stay with the maternal grandfather in Town Q.
The mother said that when the father later rang her she told him that she was on her way to Town Q and was going to stay at the maternal grandfather’s place for Easter and would be back in a day or two. She said that she had previously discussed such a visit with the father. She said that the father threatened to call the police and ask them to take X from her.
The father denied that he threw a bottle of butter chicken sauce or that there had been a discussion about the mother taking X to Town Q for Easter. He said that he was surprised when he returned home and found that she was gone and was very worried when he found out she was driving to Town Q, because she was only just out of hospital and he was concerned about her capacity to drive and to care for X. He said the mother told him that she intended to remain in Town Q with X.
The father did call the police but they did not take any action and on 1 May 2019 the father filed an application for a recovery order.
The matter came before me on 10 May 2019 and I made an interim order for X to live with the father and spend time with the mother from 10.00 am on Tuesday until 4.00 pm on Thursday each week. I also ordered that if the mother needed to leave City C for a medical appointment on a day when X would otherwise be in her care X would remain with the father while the mother went to City U or Sydney for her medical appointment.
During submissions the mother’s counsel was scathing of the father for bringing this application and critical of the court for making the orders it did. It seemed to be his case that the court should have accepted that the mother had just gone to Town Q for a bit of a break and did not intend to remain there with X.
It is well open on the evidence to find that the mother did not just go to Town Q for a short visit but intended to remain there. Upon arrival in Town Q she enrolled X in a day care centre. In her affidavit she said that she did this so that he could continue to socialise but it is unlikely that she would have enrolled him daycare if she just intended to make a short visit to Town Q. I do not accept that the father acted in bad faith in filing his application.
I also accept that the father was genuinely concerned about the mother’s capacity to care for X. Ms K, the mother’s witness, said that she recalled him telling her at this time that the mother was still fully medicated and that it was not safe for her to drive.[4]
[4] Ms K’s affidavit paragraph 31.
It was also very early days for the mother in terms of her recovery and it is entirely understandable that the father would have been concerned about her capacity to care for X and would not have wanted to see a major change to X’s care arrangements when it was unclear if the mother would remain in remission.
The fact that the mother was in the very early stages of recovery was confirmed by her witnesses. The maternal grandfather said that the mother was “still thin and frail” when she returned to City C following the court making orders on 10 May 2019. He also said that he and the maternal grandmother helped the mother clean up the unit after the father vacated it later in May because the mother was “still very weak at the time”.
As it turned out the mother had several short admissions to hospital between May and August 2019 which did not involve a recurrence of her cancer but it may well have been connected with her weakened immune system.
It is regrettable in light of this that the mother pressed at a trial a case that the father should never have applied for the orders he did in May 2019 and that the court should not have made them.
After the orders were made on 10 May 2019 the mother returned to City C and began spending time with X as ordered but she remained of the view that X should resume living primarily with her. As a result a family report was ordered. Interviews took place in September 2019 and the family report was released in October 2019.
The family consultant recommended that X reside with the father and she made recommendations about his time with the mother. The mother did not agree with the recommendations, which was her prerogative, and the matter was therefore listed for trial.
The parties current circumstances
The father is 43. He has sometimes lived in City C but he has predominately lived in Town P and is currently living there.
The father has historically worked as a factory worker or in his own business. He gave up his job after the mother was diagnosed and X came into his care and when he filed his trial affidavit he was unemployed.
During cross-examination the mother’s counsel questioned the father about why he was not looking for a job and during closing submissions he was critical of him for not being in the paid workforce. I asked the father’s counsel, both during cross-examination and during submissions, whether he would have asked such questions and made such a submission if the person who was not employed was the mother of the child. He did not answer the question.
The father said that X was attending the Early Childhood Learning Centre in City C two days each week. He described activities he did with him including scooter riding and taking him to the park.
The father is not currently in a relationship. In early 2020 he began seeing Ms D, a public servant employed by the Employer W and Ms D swore an affidavit for the trial which commenced in May 2020. That relationship ended prior to the trial resuming in October 2020 but Ms D made herself available for cross-examination and stood by what was in her affidavit.
X formed a bond with Ms D during her relationship with the father and she became tearful during cross-examination when talking about X. She has not however continued to see him since that relationship ended.
At the time of the family report interviews in September 2019 N was in the father’s care for five nights per fortnight and for half the school holidays but the father told the report writer that she was experiencing some challenges. He said that she was engaged in self-harming behaviour and had told others that this was due to her relationship with him. He expressed the view that conflict between him and N’s mother and bullying issues N was experiencing at school were behind it. He said that he and N were working through issues together.
The proceedings between the father and N’s mother had not been resolved when the trial ended and if I understand correctly by the end of the trial N was no longer spending time with the father.
The father said that X had a close bond with N. That is likely to be true. Ms D, who was in a relationship with the father for about 6 months, spoke well of what she had seen of the interaction between the children.
The paternal grandfather and paternal step-grandmother live in Queensland. X has some FaceTime communication with them and he sees them when the father visits them during school holidays.
The mother is 32. She lives in rented accommodation in City C and said that she intended to remain in City C although she was shortly to move to another address. She is not currently in a relationship.
The mother has previously worked as a health care worker. When she filed her affidavit in May 2020 was in receipt of Centrelink benefits. She said that she had been advised against re-starting work for a while to avoid exposure to infections. She said that she was studying for a further qualifications at TAFE.
The mother gave evidence about X’s routine and the enjoyable activities she did with him when he was with her.
The family consultant went into some detail in her report about the mother’s difficult upbringing and commented that she had a difficult relationship with her family and that they were not always supportive of her. The mother did not challenge the information in the family report about her experiences in her family growing up but denied that there were difficulties in her relationship with her family. She said that the father didn’t like her family and would push them away. Alternatively she said that her family didn’t like the father and would stay away when he was around.
There is evidence that the mother and her family do not always have a good relationship. The father attached to his affidavit a text message he received from the maternal grandmother on 14 March 2019 when the mother was in V Hospital. The maternal grandmother told the father that he needed to get down there that day because the mother had been “speaking to her like shit” and that she was leaving and the mother was not permitted to be in the unit alone.[5]
[5] Father’s affidavit paragraph E
However the maternal family are in broad general terms supportive of the mother. The maternal grandmother came to City C when the mother asked her to do so in May 2018 because she was feeling unwell, and members of the maternal family visited the mother in hospital during her stay and filed affidavits in support of her for the trial.
In the affidavit he filed in support of his interim application on 1 May 2019 the father raised a concern about the maternal grandfather’s antecedents, saying that he was a convicted drug dealer and had an extensive history of family violence.
The mother said that the maternal grandfather served 6 months in gaol for selling/possession of marijuana in 2011 and had one domestic violence charge which related to an incident with the maternal grandmother 28 years ago. She excused his conviction for the drug offences by saying that he was simply trying to support his family.
The father did not raise the maternal grandfather’s history as an issue at trial or seek a restraint on his involvement with X.
The father said that the maternal grandmother was an alcoholic and used illicit drugs and according to what the mother had told him she suffered from depression.
The mother said that she knew that the maternal grandmother smoked cannabis but that she trusted her not to use cannabis or alcohol when she was looking after X.
The father did raise a concern at trial about X being left alone with the maternal grandmother and he sought an order that this not occur. During submissions the father’s counsel said that he thought that it had been agreed that the parties be restrained from leaving the child unsupervised with the maternal grandmother but that is not apparent from the mother’s counsel’s submissions. I will return to the issue of whether such a restraint should be made in the conclusion to the judgment.
X’s best interests
Any orders I make about X must be determined by treating his best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine X’s best interests.
S. 60CC (2) contains the primary considerations and the first of these is the benefit to the child of having a meaningful relationship with both of his parents.
A meaningful relationship has been defined as a relationship which is significant, important and valuable to the child.[6] In terms of that definition X has a meaningful relationship with both of his parents and there is nothing to suggest that either parent is engaging in behaviour which is likely to undermine his relationship with the other parent. Their relationship is sometimes poor but there is no evidence that either of them denigrates the other to X or is seeking to align the child.
[6] Mazorski & Albright (2008) 37 FamLR 518
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
X is not at risk of being subjected to or exposed to abuse, neglect or family violence in the care of either parent. The mother made some allegations about family violence which I will assess later but she did not suggest that X was likely to be exposed to abuse, neglect or family violence in the father’s care. The highest her case went was that X might be exposed to emotional harm if he remained with the father and that issue is better considered in the context of assessing the father’s parenting capacity.

S. 60CC (2) contains the additional considerations and I intend to rule out some which do not assist me.
X was too young to be interviewed by the family consultant and neither parent asserted that he had a view about parenting arrangements.
The financial support of the child was not raised as an issue at trial, nor was the extent to which each parent had taken or failed to take the opportunity to spend time with the child, communicate with the child or make decisions about the child.
Practical difficulty and expense was not raised as an issue. The mother has settled in City C and said that she intended to remain there and the father lives in Town P. The parties therefore live about half an hour apart.
No submissions were addressed specifically to the child’s maturity sex and background and any other matters particular to the child.
Making findings about the attitude of the parties to the child and the responsibilities of parenthood will not assist me. The mother alleged that there was an occasion when X was a few months old when the father threatened to walk away from him but this did not happen and he was an involved father between February 2017 and June 2018 and readily stepped up and assumed his care when the mother was ill.
There have never been any family violence orders between the parents.
The first relevant consideration is the nature of the child’s relationship with each of his parents and any other person including a grandparent of the child.
The family consultant conducted interviews in September 2019 when X was two years and eleven months old. She observed a close bond between the father and X and said as follows:
The child participated first in an observation with the father. He left the mother and accompanied the family consultant to the observation room without issue. When he entered the room, he ran to the father and sat on the lounge next to him he wiggled his body so as to sit close to the father and they sat side by side with their bodies touching.
The child then began playing with the range of toys that were available, he brought toys to the father and attempted to engage him in his play, he also included the family consultant in many of his interactions. He babbled and attempted speech and communicated his needs in an age appropriate way. The father responded to this and appeared to have a well-developed understanding of what the child was communicating. The interaction between the child and father was child-focused, warm and affectionate. They clearly had a well-developed relationship and there were no concerns observed. [7]
[7] Family Report paragraphs 93 & 94
The mother had a less well-developed bond with X at the time of the family report interviews. The report writer said as follows:
The child was then observed interacting with the mother. This interaction was very different. It was clear that the child was comfortable in the mother’s presence and the mother sat on the floor with the child and played with him. She allowed the child to direct the play and the mother responded to him in a child-focussed manner. However, their interaction did not flow as naturally as the child’s interaction with the father. The mother appeared to lack confidence with the child and her interactions appeared forced and exaggerated. There were times when she attempted to coach and encourage the child in his language skills and she corrected his speech in a way that indicated he was to repeat the corrected work to her. The child ignored these interactions and his behaviour appeared purposefully oppositional. The more the child ignored the mother’s instructions the more forceful and exaggerated her instructions were to him. There were times when the child clearly turned away from her in an attempt to ignore her.
When it was time to end the observation, the mother asked the child to help her pack up the toys. It appeared to the family consultant that she used extensive and adult language that was not well attuned to the child’s developmental stage. The child at first ignored her instructions completely and continued playing. The mother repeated her direction and the child continued to ignore her. The more the child ignored the mother the more advanced and complicated her instructions became. The mother appeared to be experiencing some frustration with the child, and perhaps some embarrassment that it was occurring in front of the family consultant. The situation continued to escalate and eventually the family consultant intervened to prevent the child becoming upset.
At trial the mother said that she was ill just prior to the interviews and her counsel submitted that this may have impacted on the way she interacted with the child.
The family consultant was asked about this and said that she had not been told this and felt that she would have noticed and commented on it if the mother had seemed ill, and in any event this seems unlikely to be a complete explanation for what the family consultant observed. The more likely explanation is that X had grown and changed a good deal while the mother was in hospital and that it took time for the mother to regain skill and confidence in dealing with him.
By the time the trial commenced a further twelve months had passed and the father did not raise a concern at trial about the nature of the mother’s relationship with X. However there was also nothing at trial which suggested that X’s attachment to the father had weakened.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of his separation from either of his parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
The mother proposed a significant change. Pursuant to her orders X would cease living primarily with the father and would spend only three consecutive nights per fortnight with him together with half of the school holidays.
X is young and he has a good relationship with his father. He would not understand why this change had been made. He may adapt to it in time, just as he adapted to the change which was thrust upon him in June 2018, but I will have to consider after making all necessary findings whether it would benefit him to make another significant change to his living arrangements.
X faces some unavoidable changes in the future. He will commence school in 2022 and it will be necessary for the days he spends with the mother to change so that she can enjoy weekend as well as weekday time with him. It was not suggested at trial that he would not be able to cope with that kind of change.
I must consider the capacity of each parent and any other relevant person to provide for the needs of the child including his intellectual and emotional needs.
The father is well able to provide for X’s day to day needs. The mother told the family consultant that the father was “now a loving, attentive and committed father.”[8] The only real complaint she made about his day to day care of X in her trial affidavit was that there was an occasion in either late 2018 or early 2019 when she was in hospital when X was seen wandering on the road and was returned to the father by Ms K.
[8] Family Report paragraph 86
Ms K gave evidence about this incident. In her affidavit she said that when she took X to the father’s door he did not seem shocked that X was missing. However in oral evidence she said that the father said “Oh my God” when she arrived with X. I do not consider that this isolated incident casts doubt on the father’s parenting capacity.
The father is well able to provide for X’s intellectual needs. He has been instrumental in him attending day care/pre-school.
The mother alleged that the father may lack the capacity to provide for X’s emotional needs and her concern about this was based on allegations she made about the father’s treatment of N.
No time, date or context was provided by the mother for the things she alleged the father had said to N but that would not excuse abuse of the nature the mother recounted if true. However I have some reservations about the mother’s evidence generally. She denied that she had a difficult relationship with her family and that they were not always supportive of her, but the father attached to his affidavit text messages which he received from the maternal grandmother and the mother which told a different story. She denied that she ever rang the father after the orders were made in May 2019 and asked him to help settle X but Ms D, who was a very good witness, told a different story. I have a concern that the mother has allowed her strong desire to resume primary care of X to colour some of her evidence.
There is nothing in the father’s behaviour to X which suggests that he is unable to provide for the child’s emotional needs or abuses the child and the mother’s counsel rightly conceded in his case outline document that the fact that there were issues in the father’s relationship with N did not necessarily mean that there would be issues in X’s relationship with the father.
The family consultant felt that the father showed a capacity to prioritise X’s needs over his own. After voicing some criticisms of him she said as follows in her report:
However, the father has also demonstrated a capacity to prioritise the needs of others. This is indicated by the father prioritising the mother and child’s relationship when the mother was unwell. Despite being in a relationship with another individual which has since ended, the father travelled with the child and remained in City U to ensure the mother and child had regular time together. He then relocated to Sydney when the mother was transferred and continued supporting her and her relationship with the child. While the mother may have indicated that this did not occur as often as the father has suggested, it is clear to the family consultant that it occurred to the best of the father’s ability, and he had no obligation to do so. He did this to support the mother and child which demonstrates empathy, concern and an ability to prioritise the child’s needs over his own.
The father has demonstrated a well-developed capacity to prioritise the child since the child has been in his care. The father has cared appropriately for the child and they now have a strong and well-developed relationship. The observations between the father and child indicated that the father is child focused and well attuned to the child. [9]
[9] Family Report paragraph 102 and 103
There is sound foundation in the evidence for this opinion and I accept it.
The mother is currently caring well for X but there have been some issues in the past.
After X’s birth a concern arose that he was underweight and failing to thrive. The father alleged that the mother refused to give X formula as recommended by the home nurse. He said that on three occasions in the first three months of his life nurses made referrals to the Department of Family & Community Services (FACS) as it then was.
There is some corroboration for this in a note in X’s Blue Book[10] and the mother’s friend Ms L made a notification to FACS in January 2017. However there is no evidence of any intervention by FACS and between at least mid-2017 and mid-2018 X lived primarily with the mother and the father did not raise any issues about her care of X during this period.
[10] Father’s affidavit annexure A
The mother’s decision to remove X from the father’s care and drive to Town Q with him on 20 April 2019 when she had only been out of hospital for eight days and from the observation of others was somewhat frail calls into question her capacity to prioritise X’s needs over her own and suggests that she was more focussed on a desire to regain primacy in the care of X than on the child.
The father told the family consultant in September 2019 that the mother had difficulty managing X’s behaviour and often sought his assistance. He said at trial that until the early part of 2020 she would often call him when X was with her and ask him to help her settle X.
The mother denied this but Ms D, who was a very good witness, gave evidence about this occurring and about the father patiently spending quite a lengthy period of the phone after the mother called him asking him for help to settle X or manage his behaviour.
At trial the father said that he was no longer ringing to check that things were going well and he did not raise a concern about the mother’s day to day care of X.
In her affidavit filed on 15 May 2020 the mother said that she was well and was not fatigued during the day or in any way unable to care for X. She said that she had some supports. She said that Ms K was very supportive and that she was in regular telephone contact with her parents who live respectively in Town Q and Suburb R and with her brother Mr J who lives in Town Z.
Ms K filed an affidavit in which she said that she was 65 and had met the mother in 2017 when she moved into a unit next door to where Ms K was living. She said that the mother would be moving to a different unit in a few weeks but she would remain in contact with her and would help her out when she could. I accept that this is Ms K’s genuine intention.
Mr J, the mother’s brother who lives near City U said that he visited the mother regularly when she was in hospital. He said that he had a good relationship with her and spoke to her on the telephone each week and that he and his children enjoyed spending time with the mother and X when they were able to visit the maternal grandmother in Suburb R.
The maternal grandmother who lives in Suburb R said that she currently had a good relationship with the mother and spoke to her on the phone regularly and visited her in City C when she could.
The maternal grandfather, said that he travelled to City C to visit the mother and X when he could. He also visited the mother regularly when she was in hospital. He said that members of the maternal family had “a bit of a roster system” going with the father so that someone was always with the mother.
Information about the mother’s health was provided by Dr E, a Staff Specialist at the V Hospital. In a letter dated 5 May 2020 he said that the mother received an unrelated medical treatment in November 2018. After a complicated early post-treatment period she had recovered extremely well and had a normal level of function and stamina for someone her age. He said that her current treatment was a monthly treatment given at City C Hospital which would continue for two years following the medical treatment. She also had appointments at T Hospital every two to three months.
The mother had three admissions to hospital between May and August 2019 and a further admission in December 2019. There was also an incident on 4 September 2020 when she fell over and injured her leg and ankle after going out to dinner. The mother went to hospital in the early hours of the following morning and was diagnosed with a fracture to her. She wore a “moon boot” on one leg for two weeks and was then found to have also fractured the ankle on her other leg and wore a “moon boot” on that ankle for a period of time.
I cannot find that the last incident is necessarily attributable to the mother having a low immune system or being more prone than anyone else to sustain fractures as a result of her medical condition. However there have been a number of occasions since April 2019 when the mother has required treatment at hospital and it is understandable that the father is keen to maintain a strong presence in X’s life in case the mother does encounter further problems.
In her trial affidavit the mother acknowledged that her cancer could return[11] and said that this made it all the more important to her that she had the opportunity to have a strong and loving relationship with X. She said as follows:
I am currently in remission and want to be able to create memories with X in case my cancer does come back.
I think it is in X’s best interests despite the possibility that I could relapse with cancer that he lives with me and is able to build a strong relationship with me and loving positive memories.
Despite the possibility of the cancer returning, I am hopeful about my future.
I am not fatigued and have good energy. I only have a slight issue with my immune system which is why I receive the hospital treatment.[12]
[11] Mother’s affidavit filed 15 May 2020 paragraphs 218-220
[12] Mother’s affidavit filed 15 May 2020 paragraphs 218 to 221
I accept that the mother is currently well but even on her case there is a risk of relapse, making it of considerable importance that the child maintains a strong bond with his father.
I must consider any family violence involving the child or a member of the child’s family.
The mother made many allegations of coercive and controlling behaviour by the father, and coercive and controlling behaviour is a form of family violence.
The mother alleged that when she was pregnant with X the father forced her out of his home and said that he was driving her to Town Q. She said that after an argument in the car on the way to Town Q he dragged her out of the car in Town AA and told her to find her own way home to Town Q.
She alleged that after she was transferred to T Hospital in City U the father wanted her to transfer the registration of her car to him and to make him the executor of her will in exchange for being able to speak to X.
She said that she and the father had an argument on the morning of 20 April 2019 and that the father verbally abused and threatened her and threw a bottle of butter chicken sauce at her.
She also alleged financial abuse. She alleged that she had been left to repay a loan the father asked her to take out in 2015 to help him with his business. She also said that the father required her to pay half of the rent on her apartment in City C when she was in hospital.
It is not possible for me to make findings on the balance of probabilities that the father has behaved in a coercive, controlling or otherwise violent way.
The mother’s evidence about a number of these things was brief and in summary form and I cannot exclude the possibility that she has consciously or unconsciously embellished her evidence. She said for example that the father dragged her out of the car in Town AA in 2016. The maternal grandfather said that the mother rang him and told him that the father “pulled the car over and told me to get out.”
Making the mother leave the car could be viewed as coercive and controlling but I cannot discount the possibility that it was an understandable thing for the father to do following an argument, and he did not leave the mother on the side of the road, he left her at McDonalds in Town AA.
The father denied the mother’s allegation that he threatened to withhold X if she did not sign the car over and make him executor of her will and he denied throwing a bottle of butter chicken sauce at her and I cannot be satisfied on the balance of probabilities that these things occurred. I also cannot make a finding that the father forced the mother to take out a loan for his benefit. It is one party’s word against the others, as are the other allegations the mother made about financial abuse, and with all these allegations as well there is a risk that the mother has either consciously or unconsciously tailored her evidence to bolster her case that X should return to her primary care.
I must consider 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.
That is always preferable, but I cannot be certain what order is least likely to lead to further proceedings.
Things may settle down once final orders are made regardless of which parents proposal is preferred. The parties were able to co-operatively parent X between June 2017 and June 2018. The father was one of the first people the mother called when she was taken to hospital on 2 June 2018 and he ensured that the child visited her when she was in hospital. Things soured between them when the father would not agree to X returning to her primary care in April 2019 but if final orders are made as the father proposes the mother may make the best of it and enjoy her time with X and the relationship between the parties may improve, making further proceedings are unlikely.

Similarly if final orders are made as the mother proposes the father might accept them and simply get on with making the most of his time with X.
However neither outcome is certain. The mother strongly resents losing primary care of X, which may mean that if orders are made as the father proposes things will not return to the amicable situation which existed in 2017/18 resulting in further incidents and allegations. If orders are made as the mother proposes and her optimism about her health is misplaced this could also lead to further proceedings if this time around the mother resists the father assuming a greater role in X’s life if she falls ill.
I must consider any other fact or circumstance which the court thinks is relevant.
The nature of the parties relationship is relevant, both for the decision about appropriate parenting orders and for the decision about the allocation of parental responsibility.
The evidence supports a finding that the parties cooperatively parented X for most of the period prior to the mother being admitted to hospital.
Shortly after her admission to hospital the mother had a long talk to a social worker at T Hospital and the social worker said as follows in the notes she made:
…nill (sic) formal parenting orders in place + Ms Annesley feels things can be continued to be arranged informally.[13]
[13] T Hospital notes, Mother’s Affidavit page 64
The parents managed the period the mother was in hospital pretty well, notwithstanding some resentment by the mother about how often the father was bringing X to see her.
After the mother left hospital a major dispute arose about the ongoing parenting arrangements and the matter ended up in court, and it was the mother’s case that since then the father had been very controlling about the time she spent with X and that it was always “his way or the highway.”
In support of this she relied on what happened about X spending time with her on Mother’s Day.
The 10 May 2019 orders were brief and they did not make any provision for X to spend time with the mother on special days, and Mother’s Day became a particular bone of contention. The parties were able to agree on X spending time with the mother from 10.00am until 3.00pm on 12 May 2019 but the mother said that it was not so much an agreement as the father getting his own way. In 2020 the mother requested that the father allow X to spend time with her from 5.00pm on Saturday until 5.00pm on Sunday. The father proposed that the time be from 10.00am to 6.00pm on Mother’s Day. The father prevailed and the mother said that he required her to drive to and from Town P for the pick-up and drop-off which cut into her time.
The father said that he had his reasons for his proposals.
I do not accept that the fact that the parties were not able to agree about arrangements for Mother’s Day or about arrangements for the mother to leave a social event in December 2019 at a particular time, which was another issue raised at trial, and that the mother gave in and agreed to what the father wanted, means that the father is being coercive and controlling. There is no evidence of him getting his way by threatening that he would withhold the child or making any other threat with a view to coercing the mother into doing what he wanted.
The parties had a discussion. They could not agree. The mother acquiesced in what the father wanted. Why this happened or whether it will always happen I cannot say. It may be evidence of a dynamic between the parties which is difficult for both parties to deal with. As a result of her personality or the nature of her relationship with the father the mother may feel obliged to give in, but what is the father to do? Must he ensure that the mother “wins” an equal number of times whenever a small matter needs to be decided?
The father has always complied with court orders and the way to deal with issues such as disagreements about Mother’s Day for the court is to ensure that it makes clear and precise orders about special days and about as many other matters as it can.
There is also evidence of the father being flexible about arrangements for the child to spend time with the mother. He attached to his affidavit an email he sent the mother on 27 June 2019 asking her if she wanted to have X from Friday to Sunday as she had missed out on spending time with him from Tuesday to Thursday because she had been ill after medical treatment. The mother did not take the father up on the offer. He also said, and the mother did not dispute, that after the mother was admitted to hospital on 17 August 2019 he took X to see her at the hospital every day until she was discharged on 23 August 2019.
In her 2 October 2020 affidavit the mother gave evidence about the parties making amicable arrangements about X’s care. She said that in late August or early September 2020 the father asked her to mind X while he attended a psychologist’s appointment with N. She said that she looked after X in the hospital grounds until the father finished. She said that on 17 September 2020 the father asked her to return X an hour early because of his own arrangements for that day. She said that he agreed to repay her the hour later on so she agreed to the earlier return time.
The evidence about the nature of the parties’ relationship and their capacity to co-operate suggests that there are times when they manage to do so to the satisfaction of both and other times when they do not. It does not overall suggest a dynamic in which the father has all the power.
Parental Responsibility
Pursuant to s.61DA (1) of the Family Law Act I am required to apply a presumption that it is in the child’s best interests that the parents have equal shared parental responsibility for him absent a finding that one of the parents has engaged in abuse of the child or family violence.
I cannot find that there has been family violence or abuse of the child. However pursuant to s. 61DA (3) the presumption may be rebutted by evidence which satisfies the court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
In her affidavit filed on 15 May 2020 the mother outlined the orders she sought and they included an order for equal shared parental responsibility. She said that she had reservations about it but was willing to try to see if equal shared parental responsibility would work.[14] However in the Minute of Orders which was handed up on 8 October 2020 the mother proposed that she have sole parental responsibility and this was the order her counsel pressed for during closing submissions.
[14] Mother’s affidavit filed 15 May 2020 paragraph 66
The position of the mother’s counsel appeared to be that there was a power imbalance between the parties and that whenever there was a disagreement it was the father’s way or the highway. Therefore in order for the mother to have a voice in decision making, an order that she have sole parental responsibility was required.
An immediate difficulty is that I could not make this order if the child was to live primarily with the father, but even if the child lived primarily with the mother I do not consider that it would be in X’s best interests to make an order that the mother have sole parental responsibility for him.
The fact that the parties could not agree about Mother’s Day in 2019 and 2020 is only part of the picture. They were able to parent X co-operatively prior to the mother going to hospital, they reached many agreements while she was in hospital and they have been able to be flexible about some matters since then.
This is not a case in which one parent pervasively denigrates the other nor I am satisfied is it a case where one parent has used coercion and control to get their own way.
X is a healthy child and not too many big decisions will be required about him. There is the issue of choice of school but there is no reason why one parent should be given sole responsibility for making a decision about that.
It is also important that the father maintain a strong role in X’s life in case the mother’s health declines, because although the mother is optimistic about the future but she cannot rule out the possibility that this may happen.
X has two valuable parents and I intend to make an order that the parties have equal shared parental responsibility for X.
The family report
The family consultant recommended that X continue to live with the father. She recommended that if the court found that the mother had appropriate parenting capacity in the context of her recovery from illness, X spend time with her for two consecutive days and nights each week and that consideration be given to extended time once each month.
She recommended that the time increase when X was three to include three nights and that when he commenced school his time with the mother occur on alternate weekends from Friday to Monday.
The mother’s counsel was scathing in his criticism of the family report. He submitted that the family consultant was biased in favour of the father and that her report was “all but useless save for the dates of birth and names.” In closing submissions he said as follows:
It was a very shallow glance. She would not take anything against the father and was keen to be critical about anything the mother did including her childhood. She goes on and on about the mother’s childhood, nothing about the father’s as such.
Even a cursory consideration of the family report, let alone a careful reading of it, reveals that this criticism is unwarranted.
The family consultant did make positive comments about the father’s commitment to X, the child’s attachment to him and his capacity to care for the child but she was not uncritical of him. She said this:
The family consultant acknowledges that the father was definitely delayed in taking responsibility for the child which demonstrated his preference at the time for prioritising his own needs over those of others. He also indicated a complete lack of empathy for the mother and child’s early experiences post birth which the family consultant found quite shocking to listen to. Certainly, some of the mother’s reports of his controlling nature were exampled in some of the attitudes and comments he engaged in during the family assessment interview.[15]
[15] Family Report paragraph 101
The family consultant made a number of critical comments about the mother in the report. She questioned whether she had accurately reported to her intentions when she took X to Town Q in April 2019 and she expressed concern about the mother’s care of X when she was looking after him while the father was interviewed. However she also demonstrated considerable empathy for the mother and considerable insight into her situation. She said as follows:
The mother was not at ease with the assessment process. She presented as someone who has experienced significant trauma and is now emotionally fragile as a result. She was distressed, and anxious and angry as she expressed her complex feelings related to everything that she has gone through. She described her experiences related to her diagnosis of her cancer, the extensive medical intervention she has required, and the resulting separation from the child.[16]
[16] Paragraph 75 of the Family Report.
She also said this:
It is noted that the mother reported a chaotic and destabilising childhood, an emotionally abusive, chaotic and frequently changing relationship with the father, a traumatic medical diagnosis, and now a complex Court process that she fears will result in further separation from the child. As a result of the understandable distress the mother was experiencing at the time of the assessment, and the trauma she has experienced in the past, her narrative was difficult to follow. She jumped around a great deal, often not completing a sentence before moving to the next, she appeared confused when attempting to describe time lines and it appeared that recalling the past was difficult for her. In addition, the mother was considerably angry with the father for bringing the matter to Court and she remained heavily focussed on reporting the many ways the father has treated her with disdain and disrespect. While the mother noted that the father has never been physically violent towards her, she asserted that he has been emotionally and psychologically abusive. The mother appeared emotionally tired and she presented with a sense of hopelessness.[17]
[17] Paragraph 76 of the Family Report.
The family consultant prepared a thorough report. She accurately recorded the information given to her by the parties and carefully noted their differing versions of events as to their relationship and about incidents which had occurred.
She conducted observation sessions between X and each of the parents and the mother’s counsel did not suggest that she had wrongly described what happened during the observation sessions, rather he asked the court to find that the mother was unwell that day which may have impacted on her ability to relate to X and urged the court not to place undue weight on what happened at the observation sessions.
The recommendations the family consultant made were based on a careful analysis of the situation against a backdrop of her showing considerable insight into the mother’s situation and an understanding of her position.
The recommendations in a well-prepared report such as this deserve respect, made as they are by an experienced clinical psychologist who has been a Regulation 7 Family consultant for seven years and who had the advantage of seeing the child as well as the parties.
However a family report is only one piece of evidence. The court also has to consider the evidence given by the parties and their witnesses both in their affidavits and under cross-examination and the contents of the documents tendered to it. It has to weigh into the mix any changes in circumstances which have occurred since the report was prepared, and come to its own decision about the outcome which is considered to be in the child’s best interests.
Conclusion
I intend to make an order for equal shared parental responsibility and pursuant to s. 65DAA of the Family Law Act I am obliged to consider whether an order for substantial and significant time (noting that neither parent proposed equal time) would be in X’s best interests and reasonably practicable.
In light of the findings I have made substantial and significant time would unquestionably be in X’s best interests and it is reasonably practicable. The parties have been doing it since orders were made on 10 May 2019 without any adverse impact on X or undue strain on themselves.
The first difficulty with the mother’s proposed final orders is that they would not result in X spending substantial and significant time with his father. Time on alternate weekends and for half of the school holidays is not substantial, nor is it significant as that term is defined in s.65DAA (3).
I could add some time during the week to make the time come within the definition, but the second difficulty for the mother is that there is simply no warrant for making a substantial change to X’s care arrangements.
It is true that circumstances have changed since the family report was prepared. In September 2019 the mother had been out of hospital for only five months. The family consultant observed her to struggle in managing X’s behaviour and being responsive to him and the issue of whether she might again become too unwell to care for him was of greater moment at that time.
Since the report was released the mother has continued to spend time with X in accordance with the court orders and it was not suggested at trial that there were issues with her capacity to care for him. She has also maintained her health.
However one consideration has not changed, and that is whether there would be any benefit to X in making a major change to his care arrangements.
It is clear from the way the mother’s counsel conducted her case that she is still fixated on what she considers to be the unfairness of the orders which were made on 10 May 2019. Her counsel referred during submissions to an alleged agreement by the father to return X to her primary care.
There is no evidence that there was ever such an agreement and even if there had been, nothing in the evidence I have heard suggests that it would be in X’s best interests to make a radical change to his care arrangements.
X had to endure a radical change to his living arrangements when the mother went into hospital and he adapted that change, but that is not a reason to make a further radical change when nothing in the evidence suggests that it is necessary to ensure X’s health and safety, to ensure that he receives proper parenting or to ensure that he has a strong relationship with both of his parents.
There is force in the following passage in the family report:
If the father’s proposal is implemented, then the child will remain in his primary care which the child has been in for the past 12 months. He will also continue to have ongoing and consistent time with the mother weekly which will maintain their relationship. The child is not at risk of harm in the father’s care, is developing appropriately, is happy and confident and appears to be managing the current arrangement well. He has a well-developed and secure relationship with the father and continuing to live with him and have consistent time with the mother will ensure that the mother and child have an opportunity to develop their relationship further while not placing the child under undue stress.[18]
[18] Family Report paragraph 105
I intend to make orders which will see X continuing to spend substantial and significant time with each of his parents and which do not see a radical change to the amount of time he spends with each of them.
The orders the father proposed do involve a change to the days and times X spends with the mother and this was on the basis that a change is needed to take account of the fact that X was due to commence school next year.
The mother’s counsel did not address the father’s proposal at all during submissions but that does not mean that I must automatically do what the father proposed. I must carefully assess his proposal and make orders which are in X’s best interests.
The father proposed that X commence spending time with the mother on weekends as well as weekdays. I agree that it is preferable for this to commence before X starts school and I intend to broadly make the orders the father proposed for the remainder of 2021.
The father proposed some four night blocks in the Term 1, 2 & 3 school holidays 2021/2022 but none in the Christmas school holidays. I am not sure if that is an oversight but I intend to make the orders about the Term 1, 2 and 3 school holidays and also order that X spend three five night blocks with the mother in the Christmas holidays. He will then be five and it is reasonable to suppose that he could cope with that and it will give the mother some holiday options.
The father proposed that once X commenced school in 2022 the time drop back to one four night block each fortnight. I am concerned about this because it means a period of ten days when he does not see the mother at all. The orders make provision for telephone communication but this is long gap given what has been happening for the last two years.
However I do not consider that it would be in the child’s best interests to make too many changes at the same time as he starts kindergarten. Doing the best I can I intend to order that the child spend time with mother each alternate week from after school Thursday until Friday morning but that this not commence until the beginning of Term 3 2022.
Each party sought some specific restraints.
The mother sought an order that the father be restrained from bringing the child into contact with the father’s step-mother Ms BB. There is no evidence which suggests that the father will not be properly protective of X or that such an order is necessary to ensure X’s safety and I do not intend to make it.

The mother also sought an order that the father be restrained from bringing the child into contact with N. However there is no evidence that N poses a risk of harm to X. They have related well to each other in the past, and there is no evidence that the father would not be properly protective of X if the need arose.
The father sought an order that the child not be left unsupervised with the maternal grandmother.
The maternal grandmother uses cannabis and there could be occasions when she is not fit to care for the child because she would not be focussed on him, able to respond to an emergency or able to ensure that he was properly supervised. The mother was quite prickly about this issue and resentful of a concern being raised about her mother. It is a legitimate concern, but the maternal grandmother lives on the Region S and is unlikely to be seeing the child frequently and this is another area where I consider it better to leave it in the hands of the relevant parent to ensure that X is properly looked after which may include being careful about the circumstances in which he is left with the maternal grandmother.
The father proposed a restraint on the child being physically disciplined but I cannot see the necessity for that.
The mother sought an order that the child be enrolled at CC School in City C in 2022. The father said in his affidavit that he would prefer the child to attend Town P School or another state primary school close to where the father and X are living.
The issue of choice of school was not explored in any depth at trial. No evidence was given about the fees for the Catholic School, who was to pay them, why the mother favoured a Catholic education and why the father did not support it or about the respective merits of the two schools.
I cannot decide this issue. In the absence of agreement between the parents it would be logical for X to be enrolled at the state primary school near where the father and X reside and I hope that the parties do not need to come back to court on this issue.

I certify that the preceding two hundred and twenty (220) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry.
Associate:
Dated: 12 May 2021

[2021] FCCA 535

12 May 2021

Key Legal Topics

Areas of Law

Family Law

File number(s):	NCC 1307 of 2019
Judgment of:	JUDGE TERRY
Date of judgment:	12 May 2021
Catchwords:	FAMILY LAW – Parenting - dispute about parenting arrangements for a child aged 4 – where the mother was the child’s primary carer prior to her hospitalisation with a life-threatening illness when the child was under 2 - where the child has lived primarily with the father since that time – where the child has been spending two days each week with the mother since shortly after she left hospital in April 2019 – where the mother proposes that she resume primary care of the child and that he spend each alternate weekend and half of the school holidays with the father – where such a change would not be in the child’s best interests nor is it necessary to ensure that the child has a meaningful relationship with the mother – where a similar arrangement to the current arrangement is to be preferred - dispute about parental responsibility – where the mother is seeking sole parental responsibility and father is proposing equal shared parental responsibility – where an order for sole parental responsibility would not be in the child’s best interests - order made for the parents to have equal shared parental responsibility.
Legislation:	Family Law Act1975 (Cth) ss 60CC, 61DA, 65DAA
Cases cited:	Mazorski & Albright (2008) 37 FamLR 518
Number of paragraphs:	220
Date of last submission/s:	2 February 2021
Date of hearing:	20 May, 6, 7, 8 October and 16 November 2020 and 14 January and 2 February 2021
Place:	Newcastle
Solicitor for the Applicant:	LBK Solicitors
Counsel for the Applicant:	Mr Boyd
Solicitor for the Respondent:	West Tamworth Legal
Counsel for the Respondent:	Mr Kelly

ORDER MADE BY:	JUDGE TERRY
DATE OF ORDER:	12 MAY 2021