PICKETT & GAVEL
[2010] FMCAfam 787
•6 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PICKETT & GAVEL | [2010] FMCAfam 787 |
| FAMILY LAW – Parenting – with whom child lives – equal shared parental responsibility – consideration of equal time or substantial and significant time – proposals by each party for graduated increases in time toward equal time – consideration of the attitude of each parent to parenting the child – whether the mother will foster a relationship with the father – where the best interests of the child call for regular time with both parents – graduated increase in time with father. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR (2010) 263 ALR 368 |
| Applicant: | MR PICKETT |
| Respondent: | MS GAVEL |
| File Number: | TVC 1157 of 2009 |
| Judgment of: | Coker FM |
| Hearing date: | 30 April 2010 |
| Date of Last Submission: | 30 April 2010 |
| Delivered at: | Townsville |
| Delivered on: | 6 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Boulton Cleary & Kern |
| Counsel for the Respondent: | Mr Middleton |
| Solicitors for the Respondent: | Connolly Suthers |
ORDERS
That the Mother and Father have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2008, including but not limited to:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s names; and
(e)Any changes to the child’s living arrangements which make it significantly more difficult for the child to spend time with each parent.
That in exercising the parental responsibility in Order 1, the Mother and Father consult with each other about the decisions to be made as follows:
(a)Inform the other parent about the decision to be made;
(b)Consult with each other on terms that they agree; and
(c)Make a genuine effort to come to a joint decision.
Notwithstanding Order 1 and 2, the Mother and Father be responsible for the day to day care, welfare and development of the child whilst the child is in their respective care.
That the child live with the Mother and spend time with the Father as follows:
(a)each alternate week from 4.00pm on Thursday until 9.00am on Monday, or Tuesday should Monday be a public holiday or pupil free day, for the first 20 weeks of these orders;
(b)Each alternate week from 4.00pm on Wednesday until 9.00am on Monday, or Tuesday should Monday a public holiday or pupil free day, for the second 20 weeks of these orders;
(c)Each alternate week from 4.00pm on Tuesday until 9.00 am on Monday, or Tuesday should Monday be a public holiday or pupil free day, for the third 20 weeks of these orders; and
(d)Thereafter, on a week about basis with changeover to occur at 4.30 pm or at the conclusion of the child’s school each Monday afternoon, or Tuesday should Monday be a public holiday or pupil free day.
That the usual living arrangements in Order 4 continue throughout the whole of the year except for the Christmas School Holiday period, commencing in 2011, during which time the child spend time with:
(a)The Father for the first half of the holiday period in even numbered years and the second half in odd numbered years; and
(b)The mother for the first half of the holiday period in odd numbered years and the second half in even numbered years.
That irrespective of whether the child is attending school, the Christmas school holiday period be defined as:
(a)The Queensland gazetted Primary School Holiday period;
(b)Commencing on the last day that the child is required to attend at school for the purposes of the previous school term;
(c)Concluding on the first day that the child is required to attend at school for the purposes of the new school term;
(d)Including all public holidays and pupil free days as scheduled by the school from time to time; and
(e)The mid point of the holiday period be at 9.00am on the day which falls in the middle of the school holiday period
with the living arrangements in Order 4 suspended during such holidays.
Notwithstanding the above, the child spend time with the parent that he is not otherwise spending time with as follows:
(a)With the parent with whom the child is not living or spending time with on Christmas Day morning spend time with the child for a period not less than six (6) hours on Christmas Day at times agreed between the parents and failing such agreement from 12.00pm until 6.00pm on Christmas Day;
(b)With the Father to spend time with the child from 9.00am until 5.00pm on Fathers Day;
(c)With the Mother to spend time with the child from 9.00am until 5.00pm on Mothers Day;
(d)With the parent with whom the child is not spending time on the child’s birthday spend not less than six (6) hours with the child at a time to be agreed between the parents and failing such agreement between 12.00pm and 6.00pm if a non-school day or 3.00pm and 6.00pm on a school day;
(e)Should the child be spending time with the Father, the Mother spend not less than three (3) hours with the child on the Mother’s birthday at times agreed between the parents and failing such agreement between 3.00pm and 6.00pm; and
(f)Should the child be spending time with the Mother, the Father spend not less than three (3) hours with the child on the Father’s birthday at times agreed between the parents and failing such agreement between 3.00pm and 6.00pm.
That the changeover of the child take place, where possible, at the child’s school or if this venue is not available, then at the Townsville Contact Centre or any other such place as agreed between the parties in writing.
That each parent be at liberty to take the child on a holiday outside of the Townsville district during their time with the child provided that if the parent proposes to take the child out of the Townsville district for a period in excess of seven (7) days, they provide the other parent with the following information forty-eight (48) hours prior;
(a)Proposed holiday destination or destinations;
(b)Travel arrangements and accommodation details for the child;
(c)Persons with whom the child will be staying whilst on holidays; and
(d)A telephone contact number for the child whilst the child is on holidays.
That the child have telephone contact with the parent with whom he is not living or spending time with at any reasonable time that the child requests and the parent with whom the child is living or spending time facilitate the child’s phone call to the other parent.
That both parents be at liberty to contact the child via telephone at all reasonable times and in particular, each Wednesday and Friday night between 5.00pm to 6.00pm.
That neither parent relocate the permanent residence of the child from the Townsville District without the prior written consent of the other parent.
That the Mother and the Father inform each other as soon as possible, in the event of an emergency, a substantial change of health, or any substantial issue concerning the safety, health or welfare of the child while the child is in their care and provide the other parent with the name and contact details of any medical provider or other person providing treatment, assistance or care to the child.
That this Order shall be authority to medical, health, sporting and educational providers of the child to release information about and discuss the child’s progress and/or health and other needs with each parent and each parent provide such further written authority as may be required from time to time and inform the other of the names and addresses of such medical, health, sporting or educational service providers.
That the parties have liberty to apply on 28 days notice to relist the oral application for costs.
That reasons be published.
IT IS NOTED that publication of this judgment under the pseudonym Pickett & Gavel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT townsville |
TVC 1157 of 2009
| MR PICKETT |
Applicant
And
| MS GAVEL |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to arrangements sought to be made with regard to the parenting of the child [X]. [X] was born [in] 2008 and is, therefore, soon to approach two years of age. He is the child of a short relationship between Mr Pickett, whom I shall refer to as "the father," and Ms Gavel, whom I shall refer to as "the mother."
The parties' relationship was, as I have indicated, of short compass but it would seem that they have been able to generally work together in relation to arrangements with regard to [X], at least until more recent times. Unfortunately, there appears to have been a significant divergence of views as between the father and the mother which arose when the father sought to become more closely involved in the life of the child, and it would appear that at least to some extent that divergence in views between the mother and the father has almost exactly coincided with the father's formation of a new relationship.
That may or may not have been the catalyst for dispute, but it is certainly a factor that one needs to be mindful of in relation to the determination of this matter. In any event, it was unable to be resolved by agreement between the parties and, therefore, the father, on
16 November 2009, filed an application in which he sought both interim and final orders with regard to the parenting of the child [X]. The mother responded to that application and an interim hearing occurred on 14 December 2009.
At that time, I made orders on an interim basis which provided very basically for the parents to have equal shared parental responsibility for long‑term decisions to be made in relation to the child's life, for each parent to be responsible for decisions on a day‑to‑day basis when the child is in their care, for the child to live with the mother and to spend time with the father, and there was a graduated increase in the arrangements with regard to time to be spent by the father with the child such that there were four‑week steps which were to occur. Those four‑week steps included an arrangement for time to be spent by the father with the child each Tuesday and Thursday evening between the hours of 4pm and 8pm and the more significant periods being on weekends, which commenced with 9am until 5pm Sunday, and after the first period or step, then commenced at 12 noon on Saturday until 12 noon on Sunday and then stepped up to 9am Saturday until 9am Monday.
After that 12‑week period, it was then to be an arrangement which operated from about March of 4pm on Friday until 9am on Monday or the Tuesday, should the Monday be a public holiday, and from 4pm Wednesday until 9am Thursday during the week preceding the Friday that the father was not to spend time with the child. In other words, after the 12‑week staged increases, until such time as there was the opportunity for this matter to be heard, the father would have the child in his care for, unless a public holiday arose, four nights in each 14‑day period.
The father, however, proceeded with his application and, in fact, in an amended initiating application filed on 31 March 2010, set out at some length the proposals that he had with regard to spending significant time with [X]. The father proposed a further stepped progression towards time to be spent by him with the child and proposed that it should be alternate weeks from 4pm Thursday until 9am on the Monday for an eight‑week period. In other words, four individual sessions of four days, Thursday, Friday, Saturday, Sunday, but thereafter, for another eight‑week period, alternate weeks, and, therefore, four occasions of 4pm Wednesday until 9am Monday, and then a further eight‑week session with alternate weeks from 4pm Tuesday until 9am on the Monday.
Thereafter, the father said that six months or thereabouts having passed, it would be appropriate for there to be a week-about arrangement in relation to the child spending time with he and the mother and he proposed that that occur at 4.30pm, or at the conclusion of the child's school day, once [X] commenced school, each Monday afternoon.
The father also indicated that the living arrangements which were to develop, as he proposed pursuant to the orders, was to continue throughout the whole of the year except for the Christmas school holiday period when there would be an equal sharing first half or second half of the school holiday period, as well as thereafter what might be called "special day arrangements" in relation to specific arrangements, such as Christmas Day, Mother's Day, Father's Day, parents' birthdays, child's birthdays and the like.
It was also proposed by the father that there should be the opportunity for telephone communication by the parent not having [X] in their care at all reasonable times, but he proposed particularly that as the graduated steps continued and, certainly, once the alternate week arrangements were in place, that there should be the opportunity for telephone communication between the parent not having the care of [X] each Wednesday and Friday evening between 5pm and 6pm.
The father sought a particular preclusion on each party removing themselves from the Townsville district without the consent of the other, and that there should be the appropriate and proper exchanges of information with regard to such matters as changes of address, or telephone number, or issues in relation to the child's health.
The mother's response filed in relation to the matter responded to both the initial application and her amended response was filed in relation to the amended initiating application. It indicated those orders that were agreed and, of course, they included the orders with regard to equal shared parental responsibility as well as the orders in relation to day‑to‑day responsibility when [X] was in either parents' care.
The mother's position, however, was quite different to that of the father in relation to arrangements with regard to the time or opportunities that [X] was to spend with his father. The mother proposed that the child should live with her and that he should spend time with the father from Fridays at 4pm until Sundays at 4pm and each Tuesday and Thursday from 4pm until 8pm. The alternate weekly arrangement was proposed by the mother to continue until the child attained five years of age, in other words, in September of 2013.
The mother then proposed that there should be an increase to four nights per fortnight with the father, being from 4pm on Thursday until 9am on Monday for a period of eight weeks, and then each alternate week from 4pm Wednesday until 9am Monday.
The mother then saw a further step occurring which would coincide with [X] turning six years of age. The mother's proposals in that regard, however, was that the parties were to attend a mediation to review the progress of the arrangements and the child's progress, and should the result of the mediation be positive, then that the child spend time with the father alternate weeks from 4pm Tuesday until 9am Monday for a period of eight weeks, and thereafter on a week-about basis.
In other words, the mother saw a progression to week-about arrangements in relation to the child but not occurring until a date approaching Christmas 2014.
It was also proposed by the mother that the arrangements in relation to the time to be spent by [X] with the father until such time as he attained five years of age, in other words, alternate weeks 4pm Friday until 4pm Sunday and each Tuesday and Thursday from 4pm until 8pm would continue, notwithstanding any other arrangements in relation to holidays. The mother was, in fact, asked about that during her cross‑examination in relation to the proceedings and indicated that it was her wish that that routine should continue until [X] was five years of age.
Of course, that routine would mean that there was no provision for either parent to have a holiday with the child in the next three and a half years, which would certainly provide significant hindrance to both the mother and the father's opportunity to properly involve the child in their life, as is envisaged not only by the Family Law Act but, of course, expected by each parent, in that one would hope that they would, of course, be able to live their lives in a manner which suited them, and the restrictions that would be in place until September 2013 would seem to me to be quite restrictive, in relation to the life of both parties.
The mother then went on to detail her response to the proposals by the father in relation to arrangements with regard to school holidays, special days and the like and they were outlined more comprehensively in the case outline which was filed on behalf of the mother on 29 April 2010.
Quite simply, the distinction between the positions of the parties is the time during which there would be the opportunity for [X] to spend more significant periods of time with his father. The father sees that as occurring within a period of about six months and, thereafter, that there be a week about arrangement. The mother sees it as a far more long‑term arrangement and, in fact, rather than a period of about six months, sees the transition to week-about, if there were agreement following mediation, in around about four and a half years from now. There is, of course, a very significant difference in relation to that and it is the issue which needs finally to be determined by this court.
The basis upon which the mother says that there should, in fact, be a reduction in the time which is currently provided, pursuant to the interim orders which I made on 14 December 2009, arises from what the mother says are her observations of difficulties that have been experienced in relation to the child's transition from time spent with the father to time recommencing with the mother, and there will be certain further comments made by me in relation to that particular aspect of the matter, when I address issues with regard to the evidence of the parties.
As is of course always, or almost always, the case, the evidence of the mother and the father is to the forefront in relation to assisting in relation to determination of proceedings before the court but I must say, that in this matter there are other factors which also, in my assessment, need to be significantly considered in relation to the proceedings. That arises as a result of the involvement now in the life of the child of the father's partner, Ms D. Ms D has a significant involvement in this matter, being in a relationship with the father, and there are certainly now contemplations on the part of the father and his partner, that they will marry.
I will obviously need to address issues in that regard but, before turning to the father's partner, I should note that one other witness was also called in relation to this matter, that being a friend of the father's,
Mr W. Mr W was called in relation to an affidavit which was filed by him on 31 March 2010. In that affidavit, Mr W simply commented upon the relationship that he has with the father, having known him for a little in excess of two years, and noting the interaction that he has seen between the child [X] and both the mother and the father. He says, at paragraph 5, the following
I have witnessed first‑hand the communication and interaction between Ms Gavel and Mr Pickett on numerous occasions. During such interactions, I have seen Ms Gavel become angry with Mr Pickett and swear at him and become aggressive towards him.
Mr W was not challenged in relation to that evidence in relation to this matter. Mr W goes on:
I recall that in approximately September of last year -
being, of course, September 2009 -
Mr Pickett arrived back in Australia after attending a [event omitted] overseas. I remember talking with Mr Pickett on his return about seeing [X] and he told me that he had tried on numerous occasions to call Ms Gavel so that he could arrange a time to see and spend time with [X]. He told me that Ms Gavel did not return any of his calls or text messages. I then later saw Ms Gavel at [location omitted] and asked her if she knew that
Mr Pickett was trying to contact her. She told me that she knew he was. I didn't respond or ask any more questions as I didn't want to interfere.
Again, Mr W was not challenged in relation to the evidence that he gave with regard to the apparent attempts, at least communicated to him on the part of the father, to speak with the mother and of the fact that the mother knew that the father had returned to Australia. That is an issue which again I will comment upon when I address more specifically the evidence of the mother and the father.
More particularly, however, Mr W set out, in paragraphs 9 and 10 of his affidavit, his observations of the father as a parent to the child. He says the following:
I have attended at Mr Pickett's residence on numerous occasions since December last year with my children. A lot of these visits occurred when Mr Pickett was also caring for [X] so that all of the children could interact and play together. During the times that I visited Mr Pickett and Ms D when they were caring for [X], I observed the following:
(a) Mr Pickett would always be looking out for [X] to make sure that he wasn't in harms way;
(b) He would feed, clothe and change [X] and he did this quite capably and without the need for assistance of anyone else;
(c) Ms D is very careful in looking out for [X] when we are present and also assists in [X]'s care if Mr Pickett is already indisposed. For example, if Mr Pickett was getting [X] ready for dinner, Ms D would be getting [X]'s meals ready for him. I have only ever seen Mr Pickett and Ms D feed [X] meals which are prepared fresh, instead of the “easy” pre‑packaged ones purchased from the supermarket;
(d) [X] is always hanging off Mr Pickett and following Mr Pickett around his house. If for some reason, [X] cannot seen
Mr Pickett, he seeks Mr Pickett out and cries;
(e) Mr Pickett and Ms D have at all times that I have witnessed, made [X] their first priority, for example, whenever required they would remove themselves from whatever is happening and ensure that [X] receives everything he needs.
He then says at paragraph 10:
From my observations, Mr Pickett is a loving and protective parent and I have, in the past, allowed my children to be cared for by Mr Pickett and/or Ms D. I have no hesitation in allowing this to occur again in the future.
Again, Mr W was not challenged in any way in relation to the observations that he says he has made, with regard to the parenting by the father of the child. In fact, the questions that were directed to him by counsel for the mother were only of very limited compass. There was an inquiry as to whether there was any close friendship between he and the father, and Mr W indicated that there was, and then the only other question directed to him was to inquire whether the mother and the father communicated poorly.
Mr W, quite properly I think, indicated that that was his observation but, of course, he also made a very direct observation in relation to the difficulties that he said that he had seen, in relation to the exchanges between the father and the mother and, of course, in those observations, he particularly noted that it was the mother who was the party acting in a manner which was perhaps inappropriate, in relation to the difficulties being experienced. As he said in paragraph 5, he noted that it was Ms Gavel who became angry with Mr Pickett and would swear at him and become aggressive towards him. I accept the evidence of Mr W in relation to this matter.
Additional to the mother and the father were, of course, Ms D, to whom I have already made reference. Ms D filed an affidavit on
31 March 2010 in support of the father's position in relation to this matter. She also commented about her observations of the father as a parent and, I think unfortunately and rather tragically, in that affidavit made reference to the excitement that she and the father were experiencing personally in relation to her pregnancy and the forthcoming birth of their child. Tragically, Ms D has lost that baby, but apart from that one change in circumstances, there appears to be little that otherwise has changed in relation to arrangements with regard to the child, or, more particularly, Ms D's support for the father in relation to this matter.
I should note at the outset that I have rarely seen a witness who was more impressive than Ms D. I thought that in almost every respect she gave considered and caring evidence in relation to every issue that had been addressed to her. Without a second's hesitation, I accept unconditionally the evidence that Ms D gives in relation to this matter, and unfortunately, where there is conflict between the evidence of
Ms D and the mother, again without hesitation, I accept the evidence of Ms D.
I do that for two particular reasons. The first of those is that there was obvious conflict between the evidence given by Ms D and the mother and yet there was a continued consistency and, I thought, genuineness in relation to Ms D’s evidence. The mother's evidence in relation to the matter was troubling in the extreme and I will obviously comment in relation to some of those aspects of the matter when I address the mother's evidence, but I must say, that in certain respects, Ms D's evidence in relation to this matter was critical to the determination, in relation to the proceedings.
Ms D was asked by counsel for the mother about the first contact that she sets out in her affidavit as occurring between she and the mother. She described that, as contact made in early 2009 when she was working at [omitted]. She received a number of telephone calls from the mother and it appears clear that the mother acknowledges that those calls were made. Ms D's evidence, however, as to the nature of the calls, was very different to the evidence that was given by the mother in relation to this matter.
I have no doubt that the mother was, to some degree at least, distressed by the establishment of a relationship between her former partner, the father of [X], and Ms D, but the mother's actions in relation to the matter as described by Ms D, and accepted by me as an accurate reflection of what occurred on that day, do her no credit.
When questioned about the incident in early 2009, Ms D was asked whether she could understand the upset that the mother might have experienced in relation to the matter. I thought her answer was the most appropriate answer I have ever, in more than 10 years on the bench, heard in respect to questions with regard to matters of that nature. She said, absolutely accurately, that “none of us can help how we feel but all of us can control our actions.”
She is absolutely correct. The mother had every right to feel in some way perhaps let down or disappointed that the relationship between she and the father had broken down, though it would seem that there was very little of a relationship, if any, for a very significant period of time before there was any relationship between the father and Ms D, but the fact is that the mother acted inappropriately. It was self‑centred and it was in no way, as was suggested on the mother's part, directed to concerns in relation to the child, but was far more directed to inquiring as to the relationship between the father and Ms D and was not in any way child‑focused. It was lacking in insight and it was troubling in the extreme.
Ms D referred to the communications that were directed to her at that time as inappropriate and she did not think that it was proper that she should have received a call of that nature, even though she accepted that the mother may have had every reason to call, particularly in relation to [X]. I agree absolutely with Ms D's comments in that regard and think that the direction of the call was wholly inappropriate and was not at all child‑focused.
Ms D was also questioned about concerns that she had after she had arrived to live in Townsville and of a time where the mother had driven slowly past her residence and had virtually come to a stop outside the home that she and the father resided in. Ms D was asked whether, in fact, it was a route that the mother could take to depart from her brother's residence or from her own residence, and, of course, Ms D noted that that was correct, but she also noted, and was unchallenged, that there were alternate streets on either side of hers that could be taken by the mother which would remove any prospect or possibility of there being an unfortunate meeting or altercation between either the father and the mother or Ms D and the mother, and yet it was the mother who chose to make the move and to take the route that she did.
Ms D was asked whether the mother had done anything on that occasion and Ms D indicated that the mother had not, other than that she had stopped and looked in at her, but Ms D said that she was intimidated by the actions of the mother. I accept that that was the case. The mother could not possibly suggest that her communication previously with the witness, Ms D, was anything other than intimidating, and then, to take the action that she did, clearly was a continuation of the harassment that had occurred in relation to the interaction between the mother and both the father and Ms D.
As I say, I was most impressed with the evidence of Ms D in relation to this matter. In fact, I gained the impression that perhaps all within the court were impressed in that regard because, in fact, in addresses counsel for the mother made reference to Ms D as coming across as a lovely woman but she was new on the scene. It was suggested that she would be the main carer for [X], though, of course, the evidence would indicate that the father intends directly to re‑organise arrangements in relation to his work, so that he could be more closely involved.
In any event, it would seem the relationship between the father and
Ms D has had far more, if I can use the vernacular, runs on the board than the relationship between the mother and the father ever had. In any event, I could see nothing but absolute positives in respect of the relationship between the father and Ms D, and, of course, flowing from that, the benefits that would flow in relation to her involvement as a step‑parent, not a parent, with [X]. I saw nothing but positives and assistance to the father in relation to the relationship that has now developed between he and Ms D.
I turn now to the evidence of the mother and the father in relation to this matter. Quite clearly, as I indicated, the relationship between them as a couple was one of only limited compass. In fact, it would appear that apart from a few brief attempts to establish a more permanent relationship between them, their relationship was casual at best. It is clear, however, that from the time of [X]'s birth in September of 2008 until perhaps February or even March of 2009 they lived under the one roof, but what is also clear is that both accept that the relationship was very much of a platonic nature, though the mother suggests that there was a continuation of some form of sexual relationship between them, at least until January of 2009.
Whether that was or was not the case is perhaps irrelevant in relation to the determination of this matter, but what is concerning is that if that were the case, then there is a clear divergence between the evidence of the father and the evidence of the mother in that regard, and again I would indicate that I would accept the evidence of the father in that regard over the evidence of the mother, when there were conflicts in the evidence of the two.
What is clear, is that the father did have involvement with the child from a very early age. Certainly he was employed and was working outside the home but it is also clear that he was living at the home, and notwithstanding whatever the relationship between he and the mother might have been, he certainly had a significant involvement in the child's life, and up until final physical separation in about February 2009, had daily and continued interaction with the child.
Thereafter, he may have not been as determined as one would have hoped would be the case in respect of his continued involvement with the child, but I must say, I gained the distinct impression that after the latter part of March in 2009, when the mother became aware of the relationship with Ms D, there were continuing difficulties or barriers thrown in the way of the father, in relation to his interaction with the child. That is, of course, particularly evidenced by the circumstances that followed the father's return from overseas for a period of about five weeks in August/September of 2009.
The father had a long‑term arrangement in relation to the trip overseas but, by the same token, the father clearly did not communicate with the mother, or more particularly, make inquiry in relation to [X] during that five‑week period, though he was able, apart from one short period where he was somewhat isolated, to communicate with Ms D. The distinction obviously needs to be drawn, that one can only assume that he found or determined that continued communication with Ms D was more significant or important, at least at that time, than communication with the mother in relation to issues with regard to the health, welfare and wellbeing of [X], but I must say, that that is, whilst a little troubling, only a slight aberration in relation to these proceedings, and thereafter, the father has been determined in his continued attempts to involve himself in the child's life and to further develop the opportunities for time to be spent, with the child.
Notwithstanding that, the mother's response in relation to the matter was troubling in the extreme. The father, through his sister, became aware of, at least from what his perspective was, a concern that the mother intended to relocate. I find that the mother did intend to relocate at that time because there was little communication in that regard and there was certainly no indication previously given of the mother's intentions in relation to the matter.
More particularly, however, the mother seemed to be able to submit that from her perspective, if the father was absent for five weeks, then an absence of, in its entirety, the lifetime of the child, but even with concession, five months, would not harm the relationship between the father and the child.
It was not child‑focused and whilst there may be some criticisms, as I have said, of the father in relation to the matter, the fact is that parents, and that includes both parents, must be bigger than the dispute between themselves. The child should come to the forefront. The child should be the primary, if only, consideration in relation to the best interests being put to the fore, and in this instance the mother did not do so.
In any event, I am firmly of the view and find that the mother's intent, at least initially, was to relocate and that that was wholly unchild‑focused, in relation to arrangements. More particularly, the mother's suggestion that she then cut the period of time down to only six weeks, and that that balanced the time that the father was away, again fails to appreciate the fact that there was at least some opportunity available for the father to have time with the child. He sought the opportunity to spend time in Brisbane and, whilst it may have been of some little inconvenience to the mother, and I accept that that was the case, the fact is, that again she put her own position in relation to the matter ahead of the best interests of the child. I was troubled in that regard and it was a theme, unfortunately, that I found continuing through, in relation to this matter.
Whilst with all of us there can be criticisms of how we have acted or reacted in the past, I must say, that my overall impression in relation to this matter is that, whilst the father may not have been as determined as one might have hoped in relation to fostering and developing his relationship with [X], it is clear that his determination now is to develop that relationship that he has with the child to a more significant level and to play a significant role in the child's life.
I was impressed with the father in that regard and must say, that apart from the few passing comments that I have made in relation to some instances in the past in relation to this matter, I would generally find that the father was a caring parent, a devoted parent and one determined to have as much and as significant an involvement in this child's life, as was possible.
I turn now more specifically to the evidence of the mother and, as perhaps is indicated already by some of the comments that were made, I was troubled in many respects by what the mother said and what the mother had done, in relation to this matter.
The mother's communication with the father by text, which is referred to in the father's affidavit at paragraph 9, is horrifying. There is no way around that. The mother may have been angry but, as Ms D so accurately put it,
"We can't control the way we feel but we can and should control the way that we act."
The mother's, I thought, rather flippant comment that it was a means to get the father's attention and was a reflection of the language that he used may be accurate, but it is in no way a reflection of a positive nature upon her.
It's the old adage, if because one party acts badly that justifies the other party in acting badly, is simply incorrect. Two wrongs don't make a right, and, in any event, I gained the distinct impression that it was directed by the mother to the father to hurt, not to gain his attention, but rather to humiliate and at least, in some respect, to continue the intimidating behaviour which had occurred in respect of her communications with Ms D sometime earlier than that of April 2009.
The mother, in fact, acknowledged that there was some degree of anger there and again, we cannot control the way we feel but we can deal appropriately with that, and she indicated that she had done so, that she had taken counselling and sought assistance in relation to anger management, and at least to a significant degree, if not entirely, had come to grips with those issues. That simply is not correct.
The text that the mother sent allegedly to the child, but, of course, let's be mindful of the fact he is 19 months of age and that they were sent to the father, are not the text of a caring mother seeking to communicate with the child, but rather, of a harassing nature and directed specifically to humiliate and intimidate both the father and Ms D. They did the mother no credit and, in fact, raised very real concerns for me as to the genuineness of the mother's indicated intent in respect of fostering a relationship with the father and, of course, Ms D, who will have a significant role in the child's life.
I was troubled by very many of the points of evidence that arose in relation to this matter and, whilst it is not necessary nor appropriate for me to go point by point through them, there are some matters that do raise their heads and do need to specifically be touched upon.
The mother was asked specifically about those communications at Easter time and the reasons that they were sent. Her answers were, as I have indicated, somewhat flippant and, I thought, troubling because they failed to recognise the hurtful nature of them and the effect that that would have upon the child. More particularly, however, when speaking about the rapid development of children and their relationship with another party and the need for there to be close interaction with both parents, the mother made a comment that troubled me enormously.
Counsel for the father asked whether, in fact, the child, [X], might be at a disadvantage if the parents were separated for a significant period of time, such as the five months which was at least initially contemplated from about mid‑September until January 2009/2010. The mother's answer to that was wholly inappropriate and troubling in the extreme. In answer to that question as to whether [X] would be disadvantaged, her answer was self‑centred. She simply said:
"No, I grew up without a father."
Of course, the only inference that can be drawn in relation to that is that the mother's own view was that there was only one parent important in this child's life. and that was her. It's, of course, wholly unfocused on the needs and best interests of the child and gives rise to very real concerns that I must have in relation to the importance that the mother sees in the child spending time and developing a relationship with the father.
Indeed, when the mother was questioned about the texts that were sent at Easter time in 2010 when [X] was spending a more extended period with his father, she was somewhat flippant in the answers that she gave and I have already commented upon the inappropriate and harassing nature of those texts and of the fact that there is clearly an underlying and continuing element of disappointment and anger, on the part of the mother.
Body language, however, is just as important as the words and when the mother was questioned specifically in relation to such issues and was asked whether she still harboured some resentment toward the father, and that if that were the case that the child [X] would pick up on it, she answered "No." She was asked then whether she would be able to hide it from the father and again she said that she would do so, but she sniggered, when answering the question. It gave me the distinct impression that the mother might speak the words but she would not act the acts, in relation to the genuine need for there to be a relationship fostered with the father.
There are two more instances that also gave rise to the concerns that I have already raised in relation to this matter. One of those related to the issue of the father spending some time with [X], the day before his first birthday, in September of 2009. The father had recently returned from overseas and there was a degree of anger held on the part of the mother. However, when the father asked if he could have the child with him on the day before his birthday, from 9am to 4pm, it was responded to by the mother, through her legal representatives, that it would be from 10am until 2pm. The reason given in relation to that was because a haircut was to be had by the child. Of course that's important, but how one could possibly balance the need for a haircut which, with respect, can occur at any time, against the need for this child to have the opportunity for a proper relationship with his father, seems to be a matter that wholly was outside the consideration of the mother.
More particularly, however, when the mother explained that the haircut was to be done by an aunt of hers, who has a tradition of cutting the family's hair and in particular the first haircuts, she responded simply that she didn't think the aunt would be enamoured of having the father present. Of course, the fact is, that she did not address that issue and again, with the greatest respect to the mother, putting issues with regard to a haircut and perhaps the involvement of an aunt ahead of the proper involvement of the father in the child's life was troubling in the extreme and was again an indicator of the concerns to which I have already referred.
The final issue that troubled me in relation to this matter was the request made by the father to vary one of the days for him to have the opportunity to spend an afternoon and early evening with the child. Pursuant to the orders that were made on 14 December 2009, the father's opportunity to spend time with the child was each Tuesday and Thursday night. He asked the mother for a variation in relation to that and, at least from the father's perspective, suggests that it was done because of the need for him to attend at the parenting courses, which both parties were suggested should attend.
The mother said that she was unaware of the fact that it was to attend a parenting course and, in fact, her evidence was that she thought it was a work issue. Accordingly, she refused, which, of course, reflects poorly on the mother because again, it's not child‑focused. She said she had her own arrangements to attend to. She used those opportunities to mow the yard, go to the gym and to do other matters that were of a personal nature.
I, in fact, in questions from the bench, asked, what I thought was a telling question in that regard, in that the mother was directed to provide information as to the child's routine, it being emphasised repeatedly by the mother that routine was important to the child and that that information be provided. She didn't do so, because she said she was so involved in every aspect of the child's life and yet, of course, that falls foul of the very obvious indication that is given that she had four hours to herself on Tuesdays and Thursdays and they were utilised for purposes directly relating to herself and not to the purposes of the child.
It was self‑centred, it was unchild‑focused and it gave rise to the continuing concern to which I have repeatedly referred, that there is a real risk here that this child is not going to be encouraged by the mother to have the relationship that is so important and is the child's right to be had, with his father.
Obviously I was troubled by many aspects of the mother's evidence in relation to this matter and I was troubled very much by the lack of determination, as I find it, in the actions of the mother with regard to recognising the child's right and the importance of a relationship with the father.
I turn now to issues of the law in relation to this matter. In that regard, of course, I am mindful of section 60CA and of the fact that the paramount consideration is, as it always must be, the welfare and best interests of the child to the fore. Fortunately, whilst there are difficulties in communication and they were emphasised by counsel for the mother, in particular both parents recognised, or at least appear to recognise, that equal shared parental responsibility is appropriate in relation to this child and to the need for him to have a proper relationship with both of his parents.
Section 61DA applies the presumption at law that it's in the best interests of the child for the parents to have equal shared parental responsibility. The court is, of course, not bound by that and can, in circumstances that it considers necessary, rebut such a presumption. The presumption can be rebutted, most commonly in situations of abuse or violence, but can also be rebutted by a court if it considers that there are circumstances that arise which give an indication that it is not in the best interests of the child for that to occur.
Whilst I do, as I have indicated, have some concerns in relation to communication and there have been communication difficulties in the past, I gain the distinct impression that both parents can, will and should do better in relation to this child because if, as is obvious, they both love their son very dearly, then it is in his best interests and to fail to meet those obligations is a fundamental failure of the absolute responsibilities that arise in relation to parenting.
Whilst there are difficulties in communication, I am not at all satisfied that there are issues which would give rise to a basis upon which I would consider that the presumption of equal shared parental responsibility should be rebutted, and in the circumstances, I intend to make such an order in relation to this matter.
What must be looked at then, obviously, are the presumptions or considerations that flow from the presumption of equal shared parental responsibility. The court must, pursuant to the provisions of section 65DAA, consider whether equal time with each parent would be in the child's best interests and is reasonably practicable, and, if equal time is not appropriate, then the court must consider whether substantial and significant time would be in the child's best interests and is reasonably practicable. In fact, both parents say that it is appropriate that there should be orders made in relation to equal shared parental time, though the time frame in which that is to occur is very different from the perspective of the father or the mother.
In that regard, it was emphasised to me and I am mindful of the published research in relation to such matters. Of course, there is a need for there to be respect between the parties and there is a need to be mindful of a child, particularly a very young child's primary attachment to one parent or the other, but there also needs to be consideration of the child's right to a relationship with both parents and how that might be fostered and developed.
I am mindful, of course, of the fact that the Act itself, at section 65DAA(3), refers to what might be considered substantial and significant time with the parent. The definition, if I can describe it as that, contained within section 65DAA(3), is that:
(a) The time the child spends with the parent includes:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
I make reference particularly to those aspects of the matter, because as I commented at the very beginning of the reasons in relation to this matter, one of the proposals by the mother that troubles me very much is that there is no opportunity for either she or the father to holiday with the child, until at least September of 2013. That, of course, fails to recognise that there are events no doubt that will arise on occasion in relation to the child as a result of family activities in the mother's household or in the father's household, which, if there were to be the rigidity that the mother proposed in relation to the matter, would directly fall upon the child and would clearly give rise to concerns in relation to the child.
I am also mindful in those comments, of the fact that as I was directed to the published research in relation to this matter and particularly the article "Shared care and children's best interests in conflicted separation - a cautionary tale,” from current research under the hands of Jennifer McIntosh and Richard Chisholm, that there are issues that arise in relation to very young children and to the effects upon them of separation from one parent or the other to whom they might have a primary attachment. In that regard, I note that in the article, reference is made by the researchers to the obvious intent of the legislation, and in respect of same they say:
It can, however, safely be said that the healthy emotional development of children depends upon their early experience of a continuous, emotionally available care‑giving relationship through which they are able to form an organised attachment and to develop their human capacities for thought and relationships. This core finding from attachment research can easily be misunderstood when legal decisions are made. For example, the infant's need for a primary attachment figure can be overlooked because of oversimplified understandings of the research evidence.
The researchers go on a little later to say:
The important point here is that attachment security is not transferred by the child from one parent to another when moving between their care.
They then say:
Part of the developmental conundrum posed for young children of divorce is this: their attachment formation is likely to be poorly affected (or to become ‘disorganised’ in theoretical terms) when that infant does not have a continuous experience of reliable care with either parent. Shared care arrangements that involve frequent moves from one parent to another can, inadvertently, bring about this experience.
I accept that [X] is a young child. I accept that his primary attachment is to his mother but I would indicate that I, under no circumstances, accept that there should be the enormous delay that the mother proposes in relation to the child's right to a far more significant relationship with the father. It was for that reason that at the conclusion of the hearing in relation to this matter I took a somewhat unusual course at least for me. I indicated that I would hand my reasons down a few days later when it is normally my practice, if I felt able to do so, and I did in this case, to hand down reasons immediately. The reason for that delay was to give the parties the opportunity for one final chance to discuss and to consider what might be a graduated development of the opportunity for more time to be spent by the child with the father.
The fact is, that I do have some concerns about the acceleration that the father sees in relation to spending time with [X] because although one can fully appreciate the wish that the father has to be completely involved in the child's life and to have as much time as is possible, it fails to recognise the primary attachment to the mother and the need for that to be able to be developed at the same time as the relationship between the father and the child is developed.
Just as clearly, the mother's proposal for a three and a half year hiatus between now and when [X] was to turn five, which would involve, in fact, a reduction in the time that the child was to spend with the father, flies in the face of, in fact, the published research to which she sought to rely, which suggested at the very least that perhaps up until four years of age, there should be the opportunity for that primary attachment to be fostered and developed.
I accept that that is the case and as I indicated at the conclusion of the hearing, in my view, the father's move or proposals in relation to the matter were too quick and certainly the mother's proposals in relation to the matter were far too static and far too slow to appreciate the child's right to a relationship being fostered and developed, with both parents.
It was noted at the commencement of these reasons, that the parties did not reach further agreement and, of course, whilst I do not wish to know, nor would it be appropriate for me to know, what might or might not have been the outcome of developments or discussions in that regard, it is clear that there needs to be some legally structured arrangements in relation to the development of time to be spent by [X] with his father and the time frame over which that will develop.
Before making the orders that I intend to make in relation to this matter, however, I, of course, am mindful of the various factors that must be looked at in relation to the arrangements with regard to ensuring, as best one can, that the orders to be put in place with regard to the parenting of a child, are child‑focused. I note, of course, that section 65DAA requires the court to give consideration to reasonable practicality and in that regard consideration needs to be given to factors such as how far apart the parents live from each other, the parents' current and future capacity to implement an arrangement for the child spending equal or substantial and significant time with each of the parents, the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, and the impact that an arrangement of that kind would have on the child and such other matters as the court considers relevant. The court is also required to give consideration to those matters, that are set out in section 60CC and in particular subsections (2) and (3).
To some degree there is an overlap but, of course, I'm mindful of the High Court's direction to all judicial officers and, of course, to parties which arose in MRR v GR (2010) 263 ALR 368 and the considerations specifically of those matters which are set out in subsection (5) of section 65DAA. At least insofar as they are relevant in relation to this matter, it is clear that the parties do not live significant distances apart and whether equal time or significant and substantial time is to occur, it can be facilitated as between the mother and the father.
Both parents clearly have the capacity to meet the needs both now and into the future of the child and have the capacity to be significantly involved in the child's life. As I indicated, the observations particularly by Mr W, which were unchallenged in relation to the matter, spoke of the father's involvement with [X] and of the father's capacity to meet the various needs that might arise on a day‑to‑day basis in relation to the child. In that regard, I noted also the involvement of Ms D and her support that is provided by the father, as would be expected in relation to their ongoing relationship and their ongoing involvement in the child's life.
I must say, being mindful of those matters which must be looked at pursuant to section 65DAA(5)(c), that there is a concern as to the parents' current and future capacity to communicate with each other, and unfortunately, there is certainly an issue there in relation to communication and particularly, as I say, and unfortunately from the mother's perspective, a degree of anger or angst on her part which does need to be dealt with. The mother indicates in her evidence, and I accept, that she is dealing with such issues, but I am also mindful of the fact that, as recently as only a few weeks ago, the mother communicated in an inappropriate manner with the father and that that needs to be a matter addressed directly by the mother.
I am satisfied, however, that both parents, when they fully consider the impact of their actions upon the child and their obvious desire to ensure that [X]'s best interests and needs are to the forefront, can and will act appropriately in relation to communication with each other, so as to ensure that [X]'s best interests are met. To fail to do so is a fundamental failure by both parents of their obligations in relation to parenting and certainly, and it would be a tragedy if this matter were to come back before the court at some other time in the future and it were found that one parent or the other had continued to act in a manner which was irresponsible, not child‑focused and failed to put the best interests of the child to the forefront.
Then, other considerations may need to be looked at, in relation to the matter. I do not hold that out as a threat to either parent in relation to the matter but rather an indication of the absolute necessity of ensuring that [X]'s best interests are to the fore and that whatever their difficulties one with the other in communication may be, there does not need to be angst or lack of courtesy or civility in those communications. Arrangements do need to be made with regard to the child and [X] is the one who can and must expect from his parents the meeting of those obligations because not to do so, is to fall short of what this child is entitled to expect of each of his parents.
I am satisfied that it is reasonably practical to make arrangements with regard to the child spending significant and substantial time with the father and that that should be given the opportunity to develop towards equal time. I am mindful also, of course, of the objects of the Act and of the principles that are set out in section 60B and of the fact that they are, to all intents and purposes, reflected in the matters that a court must consider in making a decision with regard to what is in the best interests of a child, pursuant to those factors set out in section 60CC.
I note particularly the primary considerations set out in subsection (2) and of the fact that really, in this matter, only one gives rise to real need for consideration. That is that which is set out in subsection (a), which is that the court must give consideration to the benefit to the child of having a meaningful relationship with both of the child's parents.
Both parents, I think, acknowledge that it is important that that occur. Both parents recognise that it is the child's right to have a proper relationship with the other parent, and both parents, at least on the face of it, indicate that they will take steps with regard to fostering and developing that relationship.
As I have indicated, I do have some concerns in relation to at least the past actions of the mother in relation to this matter, but I also have some real hope that when there is a settling of the dust in respect of these proceedings and that there is a structure in place which both parents understand will be the arrangements in relation to future time by each spent with [X], that there can be far greater opportunities for there to be proper communication and at least civil and courteous exchanges, in relation to the decisions that must be made.
In that regard, I note that [X] is not yet two, and in the eyes of the law, at least, he is a child until he attains 18 years. There are 16 years, therefore, that will need to be traversed by the parents in relation to decisions to be made. The decisions will have to be made whether they can be made easily by the parents communicating or made more difficult by the difficulties in communication between the parents, but [X] is the one who has every right to expect that that occurs and, therefore, it is essential that both parents start, if you like, with a clean sheet from today and move forward to ensure that the child's right to a meaningful relationship with both parents is fostered and developed.
There is a need, obviously, to protect the child from physical or psychological harm and, fortunately in this instance, there is no suggestion of physical harm, and whilst I have perhaps in passing made reference to concerns about the mother's lack of appreciation of the importance of the father in the child's life, I am generally convinced that both parents will work toward ensuring that this child has a proper relationship with both of his parents and, of course, others who will be significant in his life.
Additional considerations which must be looked at by a court in finally determining what arrangements are to be made with regard to the parenting of a child are set out in subsection (3) of section 60CC. There needs to be consideration of any views expressed by the child but, of course, being mindful of the tender age of the child in this case, it would be impossible to have an independent assessment of what the child's views might be. In that regard, the mother certainly makes reference to the fact that she sees [X] as being somewhat distressed at times that he returns to her care and that may, in fact, be the case. It may also simply be a reflection, as is often the case, of the transition between one household and the other, but once a routine is in place it is far more comfortable for the parents and the child and, of course, if the parents' support of that routine is emphasised with the child, then it becomes far more easy for the child and for the parents.
In any event, I would assess that if there were to be any real indication of the views expressed by the child in this matter, it would simply be to say that [X]'s hope or view would be to have the opportunity for a full and positive relationship with both of his parents and, of course, with others significant in his life. The nature of the relationship that the child has with each of the parents and with others, including grandparents or others involved in the care of the child, is a relevant consideration and whilst there may be some difficulties on occasions in relation to transitions between the two households, I have no doubt as to the positive nature of the relationship that [X] has with all persons significant in his life.
As I indicated and as is required to be considered pursuant to the provisions of section 60CC(3)(c), the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent is a matter which does trouble me, at least insofar as the mother is concerned. As I indicated in my assessment of the evidence of the parties in this matter, I gained the distinct impression that the mother's view, at least up until now, was to a degree influenced by her own past experiences and that there was only one parent who would be significant in the child's life and that was her.
Hopefully it will be obvious that that is not appropriate in relation to the child and, whilst it will be difficult for each parent, and there are always difficulties in relation to parenting and they only become more difficult but, correspondingly more important, when parents are separated, there is a need to properly encourage and facilitate the relationship that the child will have with both of his parents. Whilst it will be difficult, I am confident that both parents, when putting [X]'s interests to the fore, will work towards ensuring that that occurs.
Relevant in relation to this matter and, in fact, to some degree supportive of the mother's position with regard to the transition that is to occur is a requirement for there to be consideration of the likely effect of any changes in the child's circumstance, including the likely effect on the child of any separation from either of his or her parents or other child or other persons significant in the child's life.
The father's proposals in relation to this matter, whilst understandable, are, in my assessment, when one considers the age of the child, certainly quicker than will be appropriate. Just as clearly, as I have indicated already, the mother's proposal for a hiatus until the child is five years of age is far too slow and, in fact, a reduction in the time already to be spent by [X] with his father is, in fact, inappropriate in the extreme.
The child will, as all children and in fact all adults do, react to a different degree in relation to changes in circumstances but I have no doubt again, that with the proper support of both parents of this little boy, he will transition from one arrangement to another, to another, and finally, to an equal time arrangement quite satisfactorily and that that is a matter that can properly and appropriately be dealt with by the parents by acting in a more child‑focused and determined manner.
The court must also consider issues with regard to the practical difficulty and expense of spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. Of course, in the whole scheme of things, the parties live in the same city and arrangements can be made with regard to handovers. The father's proposals, once [X] were commencing school, is to utilise the school gate as an appropriate handover point, as it is a neutral position. But being mindful of the fact, of course, at this time, that [X] is not yet two years of age, there needs to be other considerations. The father, in his proposal, suggests that that should occur at a contact centre, whilst the mother's evidence was to suggest that it perhaps should occur at a police station.
My own view in relation to that is perhaps well‑known to the legal representatives, in that I consider a police station the last point of resort in relation to a handover. It is a somewhat sterile environment but it is also an environment which, in my assessment, is not child‑focused. To have a child expect that handovers will occur at a police station gives rise certainly to a perception on the part of any child that there is something wrong with, or a dangerous element to, passing between the household of the mother and the household of the father.
One would hope that with time the parties could make sensible arrangements in relation to a handover which involves a civil or courteous discourse between them, because [X] has every right to expect that, and that it could occur, as so often is the case, at a McDonald's Restaurant, or, one would hope perhaps in time to come, even at each parents' home. It is appropriate that that should occur and I would hope that it would not be too long before that was the case. In any event, I do not see there as being significant difficulties in relation to the handovers to be effected, but if there is to be expense it would be the expense of utilising the contact centres which are available within this town.
I am required also to consider the capacity of each of the parents and of others to provide for the needs of the child, including their emotional and intellectual needs, and I should say that, at least on the surface, I have no doubt as to both the mother and the father's capacity in that regard. There are again some concerns that arise in relation to each parents' ability to meet the emotional needs of the child, and in that regard I have already commented upon the concern that I do have in relation to the mother failing to fully appreciate the importance of the father in the child's life, but just as clearly, there is, at least on the face of it, some concern about the father's lack of perhaps fully appreciating the stress that may be caused to [X] if changeovers were to occur too quickly or transitions were to occur too quickly, towards equal time within his household. Quite clearly, that is the course that will need be moved toward but I think that the father has, perhaps not as fully as would be appropriate, considered the effect upon [X] of there being eight week transitions toward the next step in relation to time to be spent by the father with the child.
The court must, at least insofar as it is relevant in relation to any determination, consider the maturity, sex, lifestyle and background of the child and of either of the child's parents and other characteristics of the child, that it thinks are relevant. Consideration also needs to be given to cultural issues, including Aboriginality and Torres Strait Islander issues but, of course, they are not relevant in relation to these proceedings. There is nothing, if you like, that would give rise to a concern in relation to the backgrounds of either of the parents with regard to sex, lifestyle or other factors, though I might add that one matter that did trouble me, at least a little in passing, was the mother's indication that she was "over relationships" and that it was her intention to fully devote herself to her son.
Whilst that, on the face of it, has a certain appeal and would perhaps be seen as appropriate, it also provides a somewhat jaundiced view of what relationships should be and, of course, it fails to recognise that a child does learn from each of their parents and if the mother's view, as she expressed it, was that she was over relationships, didn't wish to have any future relationship, then that, at least to some extent, would be picked up by the child. In any event, I give it little credence in relation to this matter and would hope that if the right person came along at some time in the future, that the mother would be able to balance the child's needs and her needs because that would be in the best interests of the child insofar as giving guidance and direction with regard to appropriate relationships and what one can expect from those relationships.
The court is required obviously to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents and I have commented at length upon aspects that give rise to some concern in relation to the father, at least with regard to past involvement with the child and, of course, also have commented upon such matters in relation to the mother. Overall, however, I have no doubt that their attitude and approach to the responsibilities of parenthood is an appropriate one.
The father would not have continued in such a determined manner the proceedings in this case, unless he wished to be fully involved in the child's life and to take on the appropriate responsibilities toward the parenting of the child. The mother would not have been as determined as she has been in relation to this matter unless she was, as she indicates, significantly involved in the child's life and determined to be a significant part of the child's life and to be appropriately directive of the child in relation to the future development and growth of the child. Whilst there are criticisms, overall I have no doubt as to each parent's appropriate approach and attitude to parenting.
Family violence is not an issue in relation to this matter and whilst there was some passing reference to the relationship that the mother and the father might have had, I am satisfied that there is no element here which gives rise to concerns in relation to parenting.
I am required also to consider, at least as best I can, the making of orders which would be least likely to lead to the institution of further proceedings. Unfortunately, there is no crystal ball handed out at the time of appointment and it is impossible to know what might or might not be the changes within each parents' life and, of course, [X]'s life, over at least the next 16 years. What one can only hope is that there is a framework put in place and that there is thereafter flexibility and communication between the parents, which will ensure that the child's best interests are met.
As I commented earlier in these reasons, however, if it were unfortunately the case that at some time in the future the matter were to come back before the court, both parents need to be mindful of the fact that their own actions will be issues directly considered in relation to any future determination and, in any event, one would certainly hope that the parties would, no doubt with the assistance of family relationship centres, counsellors and their own friends and family, be able to put the child's best interests to the forefront.
As best I can, I intend to put in place a structure with regard to arrangements in relation to time to be spent by the father with the child but thereafter it will fall upon the mother and the father to ensure that that structure is fostered and developed.
Any other fact or circumstance that the court thinks is relevant is a final catch‑all, in relation to such matters as may be necessarily required to be considered. I commented a little earlier upon the fact that a tragedy has already occurred, unfortunately, within the life of the father and
Ms D, in that she has lost the baby that she was carrying. One would hope that it will not be too long into their relationship when other children follow and, of course, [X]'s right to a relationship with his siblings, because they will be his siblings, is obviously a matter which needs to be to the forefront in consideration by both the mother and the father.
Notwithstanding her comments in the witness box in relation to this matter, there is no certainty that there will not be further children and further relationships for the mother, and if that is the case, then they also are matters which need to be considered, perhaps not now, because they are speculative, but what is clear is that to [X] it's not going to be half‑brothers or half‑sisters as one parent or the other might consider it, they will simply be his brothers or sisters and both parents need to be mindful of the fact that if children in either’s relationships in the future come along, that it is important that [X] be able to share in the life of that child and, of course, significant factors such as birthdays and the like need to be to the forefront of the parents, in relation to any decisions that they make.
I am mindful, also, of the final considerations that must be looked at in relation to the determination of what might be in a child's best interests. Section 60CC(4) requires:
That the court consider the extent to which each of the child's parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the child's parents has taken or failed to take the opportunity to participate in making decisions about major long‑term issues in relation to the child, to spend time with the child and communicate with the child and has failed to fulfil, or has fulfilled, their obligations in relation to maintaining the child.
I don't intend to go into at length issues in relation to that matter because there can, of course, be criticisms and positives that reflect on both parents.
The father, as I understand it, is certainly in a situation where there is some default or backlog in relation to child support which is to be paid. He says that that needs to be clarified. The fact is, he needs to move very quickly to clarify that position because whether there needs to be a reduction in the child support that was previously required to be paid or not, the fact is that the mother has borne significantly the brunt in relation to the financial needs of the child and while the father may not be able to fully pay that which was required to be paid, the obligation falls upon him to lodge, as soon as is physically possible, tax returns so that a proper assessment can be made.
Whether or not it was more than should have been assessed, the fact is that the mother had the obligations in relation to meeting the needs of the financial aspect of the child's life, and the father had the absolute obligation to move forward and to ensure that he was able to contribute to those obligations.
Similarly, there have been occasions where both parents have, in my assessment, failed to fully partake of the opportunities and the obligations that arise in relation to parenting. I commented upon the fact that the father was absent for five weeks because of a planned arrangement, and whilst there were difficulties, he was able to communicate with Ms D. One would have expected that he would also have taken a similar opportunity in some way to communicate with the mother in relation to the child.
They are events of the past but they are reflective of issues and attitudes and, whilst I have no doubt at this time as to the father's determination to be involved in the child's life, he needs to be fully apprised and I have no doubt is aware of the fact that to be closely involved in [X]'s life but then to let other factors intervene at some time in the future will hurt this little boy, and I have no doubt that as the father does not wish that to happen, he will be mindful of ensuring that in every possible respect he will involve himself and continue to be involved in the child's life.
Similarly, there have been difficulties in relation to communication, no doubt from both parents, but I must say, as I have indicated, that there have been difficulties more definitely emanating from the mother's side of the fence, than from the father's. One would hope that being mindful of the concerns and the effects upon the child of those difficulties in communication, that the parents can move forward, ensuring that the best interests of the child are to the forefront at all times.
Accordingly, the orders that I intend to make in this matter are, if you like, an amalgam of what the mother proposed and what the father proposed.
The proposal by the father for alternate weeks from 4pm Thursday until 9am Monday, or Tuesday, in my assessment, if the Monday were to be a public holiday, for a period of eight weeks and then further steps, including a Wednesday and then a Thursday, before moving to a week-about basis, is too short to ensure that [X] transitions comfortably to such arrangements.
Similarly, the mother's reduction in time and a determination that there not be any increase or opportunity for holidays, which would, of course, be to the detriment of the child, in her care as well as the father's care, is again not child‑focused. In my assessment, the appropriate course is to provide somewhere in between.
[X] is soon to be 20 months of age. It would seem to me that the appropriate course then is to move this matter forward so that perhaps by the time he is to turn three there is the opportunity for equal sharing. There is no hard and fast rules in that regard, but it is my assessment that the appropriate course would, therefore, be that the orders that are proposed by the father in relation to this matter be the orders of the court, but that rather than in order 4, there be the eight weeks stagger as proposed by the father, that it be a period of 20 weeks in relation to each of the steps. It will mean that just prior to [X] turning three there will be that circumstance where equal time is to be spent. He would have also had over a year to move forward in his relationship with his father and also to have both parents mindful of the fact that these are the steps that are to be taken in relation to the matter.
RECORDED : NOT TRANSCRIBED
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 27 July 2010
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