Pollock and Granton

FEDERAL CIRCUIT COURT OF AUSTRALIA

POLLOCK & GRANTON

[2014] FCCA 2493

Catchwords:
FAMILY LAW – Parenting –live with – issues of father's mental health.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 65DA

Evidence Act 1995 (Cth), s.128

Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC ¶93-296
MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424

Applicant:

MS POLLOCK

Respondent:

MR GRANTON

File Number:

LEC 88 of 2013

Judgment of:

Judge Halligan

Hearing dates:

3, 4, 5 March 2014 &

17, 18, 19 September 2014

Date of Last Submission:

19 September 2014

Delivered at:

Parramatta

Delivered on:

17 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr Priestly

Solicitors for the Applicant:

Susan Green Solicitor

Counsel for the Respondent:

Mr Loomes

Solicitors for the Respondent:

Carolyn Kelly Legal

Counsel for the Independent Children's Lawyer:

Ms Carty

Solicitors for the Independent Children's Lawyer:

Legal Aid Commission New South Wales Coffs Harbour

ORDERS

All prior parenting orders in relation to the child X born on (omitted) 2011 are discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the father.
Until the child commences school, she shall spend time with the mother-
(a)from 12 noon Saturday to 1.30pm Tuesday each alternate week, commencing on the first Saturday after the making of these orders; and
(b)from 12 noon Monday until 1.30pm Wednesday each alternate week, commencing on the second Monday after the making of these orders; and
(c)every Mother's Day weekend; and
(d)otherwise as agreed between the parents.
When the child commences school, she shall spend time with the mother-
(a)during school terms, from 5.30pm Friday to 5.30pm Sunday, or 5.30pm Monday if the Monday is a public holiday, commencing on the first weekend of each school term; and
(b)every Mother's Day weekend; and
(c)for the first week of the school holidays at the end of Terms 1, 2 and 3 each year, from 12 noon on the first Saturday of the school holidays to 12 noon on the second Saturday of the school holidays; and
(d)for the first half of the Christmas school holidays beginning in even numbered years, and for the second half of the Christmas school holidays beginning in odd numbered years; and
(e)otherwise as agreed between the parents.
Notwithstanding the two preceding orders-
(a)the child shall spend time with the father from 4.30pm on Christmas Eve to 4.30pm on Christmas Day in even numbered years; and
(b)the child shall spend time with the mother from 4.30pm on Christmas Eve to 4.30pm on Christmas Day in odd numbered years; and
(c)the child shall spend the Father's Day weekend with the father each year.
All changeovers that do not occur at school shall occur at the (omitted) Information Centre unless otherwise agreed by the parents.
Each parent shall keep the other parent informed of his or her current residential address and telephone number.
Each parent shall notify the other in the event of a medical emergency concerning the child as soon as practical.
Each parent is restrained from-
(a)causing or permitting any corporal punishment to be administered to the child; and
(b)allowing the child to remain in any house or other confined space in the presence of any person who is smoking; and
(c)consuming alcohol in any period commencing 12 hours prior to the child being due to come into their care and ending when the child leaves their care; and
(d)consuming illicit substances; and
(e)using obscene or vulgar language in the presence of the child; and
(f)denigrating the other parent in the presence or hearing of the child and allowing any other person to do so.
Each parent shall remove the child from the presence of any person consuming illicit substances.
Each parent shall authorise:
(a)any doctor or other health professional to whom he or she takes the child to provide information about the child to the other parent; and
(b)any school or pre-school in which he or she enrols the child to provide to the other parent reports, photographs, photograph order forms, circulars, newsletters or other material in relation to the child.
The father shall at all times maintain any medical treatment regime recommended to him by his medical and mental health practitioners, including complying strictly with any prescribed medication regime, and shall attend appointments with his medical and mental health practitioners as recommended by them.
The father shall check with a family member, friend or other literate person that he has correctly read the dosage label on any medication prescribed for him.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

LEC 88 of 2013

MS POLLOCK

Applicant

And

MR GRANTON

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings under the Family Law Act 1975 in relation to three year old X (referred to as X by the parents). The applicant is X’s mother, and the respondent is her father.
Both parties and the Independent Children's Lawyer proposed that the parents have equal shared parental responsibility for X. The mother sought that X live with her, while the father and the Independent Children's Lawyer proposed that X remain living with the father.
The mother proposed that X spend time with the father for two consecutive days and nights per fortnight and, until she commences school, for six hours one day a week and after she commences school for half of school holidays. The father and the Independent Children's Lawyer proposed that X spend time with the mother until she commences school for three nights each alternate week and for two nights each other week, and when she commences school, each alternate weekend from Friday afternoon to Sunday afternoon, or Monday afternoon if the Monday is a public holiday, and for half of all school holidays.

Background

The mother is aged 24 (born on (omitted) 1990) and the father is 28 (born (omitted) 1986). The parties commenced cohabitation shortly after they met in October 2009 and finally separated on 19 January 2013, when the father left the parties’ home in the (omitted) area while the mother was at work taking X with him, and went to live in the (omitted) area, over 100 kilometres away.
X was born on (omitted) 2011.
At the commencement of the hearing in March 2014, the mother was in a relationship with Mr R. They have one child, Z, born on (omitted) 2014. By the resumption of the hearing in September 2014, the mother and Mr R were experiencing difficulties in their relationship, she had asked him to move out but he had not yet done so, and they were “working on” their relationship but without professional relationships counselling assistance.
The father is in a relationship with Ms T. They have one child, a son Y, born four weeks premature on (omitted) 2014.
On 19 February 2013, the Coffs Harbour Local Court made interim consent parenting orders, providing for the parents to have equal shared parental responsibility for X, for X to live with the father, and for X to spend time with the mother from noon Monday to noon Wednesday every week, changeovers to occur at (omitted). The proceedings were then transferred to this Court.
On 28 November 2013, the interim orders of 19 February 2013 were varied by consent in relation to the mother's time at Christmas 2013, the child to spend time with the mother from noon on Monday

23 December 2013 to 3pm on Wednesday 25 December 2013.
The hearing of the matter commenced on 3 March 2014, but had to be adjourned after the second day due to the unexpected unavailability of the paternal grandmother, a witness in the father's case, who has been called to the bedside of her dying mother. The father, who had been close to his grandmother, also sought to be at his dying grandmother’s bedside.
On the adjournment of the hearing on 5 March 2014, the February 2013 interim orders were further varied by consent to increase the time the child spends with the mother each week to 10am Monday to 4pm Wednesday, and to alter the changeover venue to (omitted).

Credit of witnesses

The witnesses in the applicant mother's case were-
a)the mother;
b)Mr R;
c)Ms K, the child’s maternal grandmother; and
d)Mr N, the child’s step maternal grandfather.
Mr N was not required for cross-examination and no issue arises in relation to his credit.
The witnesses in the father's case were:
a)the father;
b)Ms T;
c)Ms B, the child’s paternal grandmother; and
d)Mr H, a psychologist working as a family worker for fathers with (omitted) Family Support Service who knows the father professionally.
The father initially relied on affidavit evidence from Dr K, a medical practitioner employed by the Mid North Coast Local Health District as a (omitted) in psychiatry, who knows the father professionally, and from his father, Mr G. Both these witnesses’ affidavits were withdrawn when the deponents were not available for cross-examination.
On the resumption of the hearing in September, the father sought to rely on an affidavit sworn by Mr J, a forensic psychologist, but he too was unavailable for cross-examination, and it was conceded in the father's case that he could not rely on that affidavit.
The father pressed the affidavit of Mr H, despite he too being unavailable for cross-examination. It remains for me to determine what weight, if any, should be attached to Mr H’s evidence.
The only other witness was Mr P, the Family Consultant who prepared the Family Report. While he was cross-examined, no issue arises as to his credit.

The mother

The mother said she was the child’s “full time” carer until the parties separated. This is not consistent with her telling the Family Consultant that after she returned to work when X was about five months old, the parents shared X’s care, or her evidence that the father limited her involvement in the care of X. Nor is it consistent with her evidence that on occasions she drove the father with the child to spend time with his family in (omitted) for a few days at a time in her absence.
The mother alleged that she observed marijuana growing at the home of the paternal grandparents. She also said she saw a bong and pipe in the shed at the paternal grandparents’ home. When it was put to her in cross-examination that what she saw were tomato plants, she immediately agreed. She was not cross-examined on her evidence of seeing drug paraphernalia as well.
Where the paternal grandmother denied these allegations by the mother and was not cross-examined on them, the fact the mother alleged she saw marijuana growing there, without doubt or equivocation as to what she saw, but then readily accepted the suggestion she had seen tomato plants instead, in my view reflects adversely on her credit, particularly where that was not the only alleged basis for her allegations.
I do not accept the submission on behalf of the mother that her ready concession on this point was a positive feature in relation to her credit. The allegation that the paternal grandparents were cultivating marijuana was a serious allegation to make, and ought not to have been made lightly.
I am concerned that in this instance, the mother's evidence that she saw not only marijuana plants but drug paraphernalia as well is not credible and is not satisfactorily explained away by the suggestion she mistook tomato plants for marijuana plants.
Apart from these matters, I am not satisfied that the mother's credit was successfully challenged, and I am satisfied she is in other respects a reliable witness whose evidence can be accepted as truthful on most, though not all, matters.

Mr R

Mr R’s credit was not challenged, and I accept him as a reliable witness whose evidence can be accepted.

The maternal grandmother

The maternal grandmother was cross-examined but her credit was not challenged. Significantly, she was not cross-examined about her denial of allegations made against her by the father of drug use. I accept her as a reliable witness whose evidence can be accepted as truthful.

The step maternal grandfather

The maternal step-grandfather was not cross-examined. As with the maternal grandmother, he denied allegations the father made against him of drug use, and the failure to cross-examine him is significant. I accept his unchallenged evidence as truthful.

The father

In the course of the father's cross-examination, it became apparent that he could not read without assistance and his affidavits did not bear the necessary certificate of a person having read the contents to him before he swore them to be true. Despite he being under cross-examination, and with consent of the legal representatives for the mother and the Independent Children's Lawyer, I suspended the father's cross-examination and permitted his legal representatives to read his affidavits to him, take instructions as to the accuracy of them, to make any necessary alterations to them, and have him re-swear them. He re-swore his four affidavits with the appropriate certificates endorsed on them, making alterations as he considered necessary before doing so.
There were several unsatisfactory aspects to the father's evidence that called his credit into serious question.
a)He gave evidence that he always had a close bond with his parents. He admitted in cross-examination that this was untrue.
b)He admitted swearing his first affidavit to be true when he knew an assertion therein that a home located on a property owned by the maternal grandparents that the parties and children had lived in did not have a smoke alarm was untrue. He admitted this was a deliberate lie to attempt to advance his case.
c)He admitted that his first affidavit had been read to him by his mother before he went to court in February 2013 and he knew then that it was incorrect but he continued to rely on it without seeking to correct it. His claim that he did not understand he could correct the affidavit is unconvincing when he admitted that he chose not to tell his solicitor of the inaccuracies when he became aware of them. He admitted knowingly leaving untruths in his first affidavit because the false version of facts assisted his case.
d)He denied having attended on a psychiatrist to obtain evidence to support his case. He asserted he obtained a referral to a psychiatrist in 2013 to get back into the mental health system because he wanted support with his medication and to establish contact with a social worker. When confronted with the referral to the psychiatrist contradicting this evidence, he admitted that the purpose of the referral in 2013 was to obtain a report to assist him in these proceedings, as stated on the letter of referral. He only made this concession when presented with the letter of referral.
e)He admitted, under the protection of s.128, Evidence Act 1995 (Cth), that despite knowing he was required to do so, he failed to notify Centrelink of his relationship with the mother in relation to social security entitlements.
f)He denied he was in a de facto relationship with Ms T before March 2014. For reasons I will set out when dealing hereafter with Ms T’s credit, I am satisfied this evidence was false.
g)He alleged he witnessed the maternal grandmother and maternal step grandfather purchase drugs at or near (omitted). Both denied the allegation and neither was cross-examined on the father's allegation. The father's evidence when cross-examined about the allegation was marked by inconsistencies and contradictions. I am satisfied he fabricated this evidence.
I am satisfied that the father concocted a series of false allegations against the mother seeking to portray her as a neglectful, violent and disinterested parent, and against the maternal grandmother and maternal step-grandfather, on whose property the mother lived, of drug taking. I am satisfied he made false or contrived allegations as to the suggested unsuitability of the mother's accommodation. He presented a false picture of the mother, her parents and the mother's accommodation to seek to bolster his case to keep primary care of X. It is significant in my view that having made these serious allegations, he readily agreed to the child spending 48 hours a week with the mother in this supposedly unsuitable accommodation with no particular protections from the suggested deficiencies in the mother's parenting other than a mutual restraint on the parents using corporal punishment on the child.
It was submitted in defence of the father's credit that he readily made admissions as to inaccuracies in his evidence in chief. However, while he fairly readily acknowledged some inaccuracies in his evidence, he was reluctant to admit others. In any event, his admission that he knowingly gave incorrect evidence on a number of matters to attempt to bolster his case in my view damns his credit as a witness.
I am satisfied the father’s credit as a witness has been destroyed, that he is an entirely unreliable witness, and that his evidence cannot be accepted on any contentious issue unless it is corroborated by a credible witness.

Ms T

Ms T swore an affidavit on 4 March 2014, later relied on in the father's case, in which she did not disclose the fact she was then expecting the father's child. She admitted that she knew this was a significant material fact that she deliberately withheld from the court because she was concerned it may have had an adverse impact on the father's case.
Ms T denied that by December 2013 she was in a relationship with the father, even though she was then expecting his child. She conceded that on 31 December 2013, her mother posted on social media-
“Our daughters are in new relationships”
Ms T conceded that this included a reference to her.
Ms T conceded that at the same time her mother posted-
“We have a new addition arriving into the family in (omitted) 2014, which we all can’t wait for this little man to arrive.” (sic)
She conceded this was a reference to Y.
Ms T said that she had informed her parents and sister she was pregnant to the father, but that she was keeping the pregnancy secret from the father. She said her mother must have assumed something about her relationship with the father.
Ms T said she did not know why her mother believed she was in a relationship with the father, and said she must have assumed it.
Despite Ms T’s suggestion she told her mother the fact of her pregnancy was being kept from the father, her mother posted the information onto her social media site on which the father had “friended” her, and hence she would have known the father had access to her posts.
It is simply not credible that Ms T’s mother formed the view her daughter was in a non-existent relationship and then posted information that her daughter told her was being kept from the father onto a website that she would have known the father had access to.
In my view it is far more likely than not that by December 2013 at the latest, the father and Ms T were in a de facto relationship. I base this finding on the following facts-
a)The father and Ms T had been living in the same premises by then for over 12 months, having moved together to new premises.
b)The father and Ms T were in a sexual relationship.
c)The father and Ms T socialised together.
d)The father and Ms T attended changeovers when X passed between her parents together.
e)The father and Ms T attended court for these proceedings together, including as long ago as 16 May 2013, when the parties attended a Child Dispute Conference with a Family Consultant.
f)
In her Memorandum following the Child Dispute Conference on 16 May 2013, having interviewed both parents and noted that

Ms T had accompanied the father, a Family Consultant reported that the father had begun a new relationship with Ms T about a month before the conference, that is, in April 2013. This was when the father still resided with his grandmother, and before the father and Ms T became, as the father and Ms T sought to present themselves, flat mates.
g)Ms T’s mother formed the opinion her daughter was in a relationship with the father by 31 December 2013.
h)Ms T’s mother posted to a social media site the father had access to that Ms T was expecting a child at a time Ms T asserted her mother knew this information was to be kept secret from the father.
i)Ms T was not called as a witness in the father's case until after the unexpected adjournment of the matter to a date after Y was due to be born. It was clearly the case that an issue at trial would be whether the father and Ms T were in a relationship. She was an available witness the father would be expected to call at the outset. There was no explanation why she was not a witness at the opening of the father's case.
j)Ms T swore an affidavit in March 2014 in which she deliberately withheld relevant information from the court, namely the fact she was seven months pregnant with the father's child, because she believed disclosure of the information may prejudice the father's case.

I am satisfied that Ms T and the father both lied in asserting that they were not in a relationship before March 2014, and in asserting that the father did not know Ms T was expecting her child before (omitted) 2014.
Ms T gave conflicting explanations for not informing the mother of Y’s birth when she effected changeovers with the mother, at first saying she did not think it important, but then conceding it was important but she wanted to let the father's solicitors inform the mother. Ms T said she informed the father's solicitors of Y’s birth in early (omitted) 2014, but continued to withhold the information from the mother. There is no evidence she ever informed the mother. She could not explain why.
Ms T attempted to avoid answering when asked in cross-examination for her opinion of the mother as a parent. When pressed she said the child had come home from the mother's the preceding week cranky, and while she could not explain why, suggested the child is never out of sorts or cranky when with her and the father. When challenged about this statement, she then conceded that the child has had temper tantrums and been unhappy when with her and the father, and that she had lied in her initial assertion to the contrary.
In the circumstances, I find that, as with the father, Ms T’s credit as a witness has been completely destroyed, that she is prepared to lie on oath and withhold relevant evidence to seek to promote the father's case, and I cannot accept her evidence on any controversial issue unless it is corroborated by a credible witness.

The paternal grandmother

The paternal grandmother denied that she closely observed and monitored the mother's time with X on any occasion after separation and before interim orders were made. I am not satisfied she was truthful in saying so.
The mother gave quite different evidence, and I am not satisfied her credit has been called into question generally or in relation to this particular issue. The father agreed he was not prepared to let the mother take X away from the home out of fear she would not return her. The paternal grandmother confirmed she was present at times the mother was not permitted to take the child away and confirmed the mother was not permitted to take the child away for fear she would not return the child. It is inconceivable that in those circumstances that the mother would not be closely observed to ensure she did not attempt to leave with the child. The paternal grandmother expressed a poor opinion of the mother as a parent, and that too would support a motive to closely observe and monitor the mother with X, as the mother alleged occurred.
In cross-examination, the paternal grandmother at first said she had not said anything about the mother to X since March 2014, that is in the preceding six months. However, when pressed she said she had said only good things to X about her mother.
While I am not satisfied that the paternal grandmother’s credit generally has been destroyed, I am nonetheless satisfied that her evidence was highly partisan and should be treated with some caution on any controversial matter.

Mr H

As mentioned, Mr H was not made available for cross-examination, but it was submitted on behalf of the father and the Independent Children's Lawyer that I could nonetheless place some significant weight on parts of his evidence. It was the mother's case that I could place no weight on his evidence.
Mr H was called as an expert witness in the father's case, but there is no evidence to satisfy r.15.07, Federal Circuit Court Rules 2001 and Federal Court Practice Note CM7, and the form of his evidence does not comply with CM7. Although no objection was taken to his affidavit on this ground, I am concerned that he appears to adopt an advocacy role in support of the father's application to have X live with him, when Mr H has never met the mother, and has no idea what she could offer the child, and whether she could offer the child more than the father can. Taking an advocacy role for a party is inconsistent with the general duty to the court of an expert witness (see CM7, paras 1.2 and 1.3). I am also concerned that his expressed support for the father's application suggests his focus is on his client, the father, rather than on X.
Because of this, and because of Mr H’s reliance on information provided by the father who has a proven propensity for dishonesty, the lack of any opportunity to cross-examine Mr H is of particular significance. There was no opportunity to ask Mr H whether any opinion he may have expressed would be affected if the father had been less than candid with him.
I am therefore satisfied that no weight can safely be placed on any of Mr H’s evidence beyond his recitation of the history of his clinical involvement with the father. I am not satisfied any weight can safely be placed on any opinion Mr H expressed in relation to the father's suitability to have the care of X or to meet her needs.

The evidence

Child care during cohabitation

I am satisfied that for the first five months of X’s life, the mother was her primary carer. I am satisfied that the father was little involved in her care at this time.
I find that when the mother returned to work when X was about five months of age, the father took a greater role than the mother in X’s care, even when the mother was not at work.
The mother suggested the father was controlling and domineering, limiting her involvement in X’s care. I accept this evidence, and reject the father's evidence that the mother was controlling of him.
In consequence, I am satisfied that from about five months of age until separation, when X was 15 months, the father was more involved than the mother in X’s care.

Child care after separation

On 19 January 2013, while the mother was at work, and with no forewarning, the father took X and moved to (omitted), more than 100 kilometres away from the parties’ then residence. He then advised the mother what he had done. The father has been X’s primary carer since separation.
I am satisfied that the father was motivated by animosity for the mother in taking X so far away. I am satisfied that in taking her away, he acted in disregard of X’s interests. He knew that it would be better for X if the parents remained living closer together. She was then very young, and the father's actions significantly limited the time she could spend with her mother. In fact, until the consent interim orders were made, the father placed very severe restrictions on both the time the mother could spend with X and the circumstances in which she could do so, refusing to allow the mother to take the child away.
I do not accept the father's evidence that he “needed” to be closer to his family. I accept that he wanted to be closer to his family. The father conceded that the advantages for X of living in (omitted) were not greater than the disadvantages for her of doing so, and he could not suggest any greater benefit to X in living with him rather than living with the mother.
The mother saw X at the father's grandmother’s home on

24 January 2013, 6 February 2013, 8 February 2013. The father refused to allow the mother to take X away to spend any time with her. I am satisfied this time with X was in the presence and under the direct supervision of the father and his parents.
The parents have had the care of X since the interim orders were made in February 2013 generally in accordance with the interim orders in force from time to time.
It was conceded by counsel for the father early in his cross-examination of the mother that the father is satisfied the child receives appropriate care from the mother when with her.
The father does not acknowledge X’s need for a close relationship with her mother and her extended maternal family. He only sees the paternal family as important for X. The father said he believed it better for X to be in an area where she can regularly see her extended family. But it is only X’s extended paternal family who live in (omitted). None of her extended maternal family lives there. The father said there is nothing for X in (omitted). As the father is aware, that is where the mother and the extended maternal family live.
Since separation, various incidents have occurred that reflect adversely on the father's capacity to put the child first, and his capacity to facilitate the child’s relationship with the mother and the mother's involvement in parenting the child. They include-
a)The father changed his phone number and did not advise the mother, as required under the interim parenting orders. This became apparent to the mother in May 2013. The mother was due to return the child to the father on 29 May 2013. She had travelled to Sydney, and was returning on 29 May but was delayed by traffic. She was unable to contact the father to advise him of this, and to try to arrange to return the child near (omitted) instead of at (omitted), reducing travel for the child to pass back into the father’s care, because the father had changed his phone number and not advised her. Yet the father instructed his solicitors to write to the mother's solicitors complaining about the late return of the child.
b)The father arranged for X to attend a Peppa Pig concert at a time the child was to be with the mother without prior consultation with the mother. He then informed the child, and told the mother the child would be attending the concert and the mother would have to alter her time with the child. He disingenuously suggested the mother agreed to change her time. He reluctantly conceded that the mother was left in the position of either having to accept what he had done, or be cast as the one stopping X attending an activity she already knew about and was eager to attend.
c)He arranged for the child to have her 12 months immunisation without prior consultation with the mother. He told her after the event. In contrast, he conceded that the mother arranged the child’s 24 months immunisation after consulting him about it in advance.
d)He had X’s ears pierced and informed the mother after the event.
e)He had chosen a doctor for X in (omitted) and had not consulted with the mother as to the choice of doctor or informed the mother of his choice of doctor.
f)He enrolled the child in a preschool without prior consultation with the mother. As arranged before separation, X was due to commence at preschool shortly after separation. The issue of concern is the father's failure to consult with the mother about the choice of a suitable alternate pre-school when the father's unilateral relocation to (omitted) meant X could not attend the pre-school in which she was enrolled before separation.
g)The father failed to inform the mother of an Easter Hat Parade at the child’s pre-school even though he was uncertain whether he, Ms T or any member of his family would be able to attend. He was prepared to risk no-one attending the child’s hat parade rather than inform the mother.
h)The father failed to inform the mother he had taken X to the doctor about her eczema the week before the hearing resumed, and more significantly, failed to inform the mother of the treatment the doctor recommended.
i)The father failed to inform the mother of the birth of X’s half-sibling Y until five months after Y’s birth, asserting it was none of her business. The actions of the father and Ms T in keeping Y’s existence secret from the mother suggests they failed to fully appreciate the significance of Y’s kinship with X.
In relation to the last point, I reject the evidence of the father and

Ms T that they had told X that Y was her brother, and that X related closely and warmly to him as her brother, for the following reasons-
a)I accept the mother's evidence that X never mentioned Y as her brother, despite referring to a person called Y in conversation with the mother and struggling to explain to the mother who he was.
b)The father and Ms T kept Y’s existence secret from the mother for five months.
c)If the father and Ms T acknowledged Y to X as her brother, they must have known that X would tell the mother about her (other) new brother. After all, she had a half-brother born at about the same time as Y in the mother's household.
d)I am satisfied that if the father and Ms T had told X that Y was her brother, it is more likely than not that she would have told the mother about her other new brother. I am satisfied X has never acknowledged Y as her brother to the mother.
e)The assertion that the father and Ms T acknowledged to X that Y was her brother is inconsistent with the father's failure to acknowledge the importance of the relationship between X and Y until I explained to him how they were related during his cross-examination.
However, while I am satisfied that the father and Ms T failed to explain to X that Y was her brother, I am satisfied that the mother failed to do so too, despite knowing of Y since August 2014. Her evidence when cross-examined on 17 September 2014 that X still had not referred to Y as her brother when with her proves the mother has not acknowledged Y to X as her brother. There is thus an element of hypocrisy in the mother's criticism of the father on this issue.
The mother has been hypocritical in relation to other criticisms she made of the father. She complained about delays in the father establishing a Skype facility for her to have audio visual communication with the child as the parties agreed. No orders were made for this to occur. I am satisfied the father delayed unreasonably in setting up the necessary account to enable Skype communication. However, since he did set it up so the mother could Skype X, there has never been any Skype communication. The mother asserted that whenever she is on-line, the father is not. The father asserted that whenever he is on-line, the mother is not. But neither has ever messaged the other when they have been on-line to invite the other to come on-line so X can have Skype communication with the mother. Thus, the mother's criticisms of the father's delay in setting up the Skype account and providing her with complete details of his account are shown to be no more than hypocritical carping. Neither parent has shown any inclination to facilitate Skype communication between X and the mother. Since separation, the mother has attempted to have telephone communication with X once.
The mother also criticised the father for retaining the communication book when the parents were using this means of communication when she too retained it for significant periods. The parties have since agreed to dispense with the communication book as it had simply become another cause of conflict and disputation between them.
Both parents made allegations of physical discipline of the child by the other.
The mother said that in July 2014 X told her that the father and Ms T smack her. The mother’s failure to seek an order to restrain the father from using physical discipline on the child and from permitting any other person to do so, despite seeking a mutual non-denigration injunction, suggests the mother did not regard this as a significant issue.
The father said that when X was a baby the mother smacked her so hard it left hand imprint marks on the baby, and that on an unspecified occasion, but inferentially between March and August 2014, X told him the mother smacks her. Inconsistencies in the father’s evidence when cross-examined about this, the mother's denials of smacking X, and my assessment of the parties’ credit, leads me to find that the father’s allegations are untrue.
The Independent Children's Lawyer sought a mutual restraint on both parents using corporal punishment, which the father supported, and I will make that order. I am satisfied such an order will adequately address this issue, whatever time the child is to spend with each parent.
The mother gave evidence of one occasion in July 2014 when X’s eczema flared up and the parents were able to communicate civilly about it, identify the likely causes of the flare-up and address them without acrimony. She described this as an example of the parents communicating effectively and being able to co-parent X.
While such instances have been very rare, it nonetheless is a significant indicator that these parents are capable to putting their distrust and animosity aside and focussing on what is best for X. X’s welfare will be greatly enhanced if the parents can build on this and make it the norm, rather than a very rare exception to their usual acrimonious interactions about X.
However, the father took the child to the doctor about the child’s eczema just one week before the resumption of the hearing and the doctor made recommendations about treatment of the condition which the father failed to tell the mother about, illustrating that the cooperation in July 2014 was indeed exceptional for these parents.
A possibly more positive sign is that since about July 2014, Ms T has been attending to effect changeovers with the mother. The mother and Ms T are able to effect changeovers without conflict and tension and are able to keep each other informed about X’s health and well-being.
The mother initially paid child support as assessed, however under a new assessment issued around mid 2013, her liability was assessed as nil.

The father's mental health

The father suffered a drug-induced psychosis, including auditory hallucinations, at 18, when he was diagnosed with paranoid schizophrenia. He was medicated, and subsequently had a history of hospital admissions with continued drug abuse adversely affecting his mental health. At age 20, after a further hospital admission when his diagnosis was changed to post traumatic stress disorder, he was stabilised on Seroquel medication.
It is common ground that the father continues to be prescribed Seroquel, and that if his mental health symptoms became acute he would be unable to care for X.
Considerable time was spent in the trial on the issue of the father's mental health. Based on my assessment of the parties’ credit as witnesses, I am satisfied that in 2012 the father stopped taking his medication, his symptoms became acute, and the father consulted his doctor at the mother's instigation, resulting in his medication being adjusted. I am also satisfied that just after separation, the father told the mother he was not taking his medication.
By the resumption of the hearing, the father has effectively ceased involvement with any mental health professional. He discontinued his attendance on a clinical psychologist, Mr T, who he was seeing on referral from Victims Services, before concluding the program of therapy he commenced with that therapist. A letter from Mr T indicates the purpose of his therapy as-
“ (A)ddressing psychological trauma was the indicated treatment direction, and my contacts with (the father) were around helping him understand and appropriately manage some of these problems, including his distrust of males, and episodes of triggered anxiety or paranoid ideation when under emotional stress.”
Neither the letter from Mr T nor any other evidence clearly indicates whether Mr T was assisting the father with current symptoms of anxiety and paranoid ideation, or assisting the father to deal with these symptoms if they again became acute in the future. The father denied he saw Mr T for existing acute symptoms, but he was shown to be an unreliable witness. There is evidence he reported to a doctor in 2013 that he was experiencing flashbacks and nightmares. He did not report experiencing mood fluctuations or hallucinations.
Significantly in my view, the mother gave no evidence of having observed behaviour by the father since separation that she suggested was consistent with her observations of the father when he was not taking his medication.
I am not satisfied that the father’s attitude toward his medication is as he sought to present it. He has not been medication compliant in the past. Due to his limited literacy, he is not confident in reading the dosage instructions on his medication. Despite seeing his mother almost daily, and emphasising how helpful and supportive she has been in the past in addressing his mental health issues, he has never asked her to check that he has correctly understood the dosage quantity and frequency for his medication. I am not confident the father will remain medication compliant in the future.

The father said he is self-aware when his symptoms are increasing, and he has sought treatment when they have increased. I accept the mother's evidence that in 2012, the father's symptoms increased and he did not seek treatment until urged to do so by her. However, I also accept that the paternal grandmother has been a significant support for the father in the past in managing his mental health, and that as she sees him almost daily, she is in a position to, and will in fact, recognise any warning signs and ensure the father seeks appropriate intervention, if he does not initiate that intervention himself.
The lack of any expert evidence in the father's case to support his contentions about the current state of his mental health and his prognosis is very concerning, especially as he obtained a referral to a doctor in 2013 to obtain a report for these proceedings. Neither

Dr K nor Mr J were available for cross-examination and their affidavits were withdrawn. I can place no weight on Mr H’s evidence for reasons already given. In any event, none of these witnesses are psychiatrists.
The father has had the primary care of X since separation, a period now in excess of 18 months, and for almost all of that time has been involved in the stressful and anxiety-inducing process of this litigation. Yet over that period, there is no evidence to suggest that the father has failed to meet X’s needs, either in the mother's evidence or in the Family Report. In fact, the Family Report writer was laudatory of the father's parenting. This seems inconsistent with any suggestion the father’s parenting capacity has been compromised over that period due to his mental health issues or for any other reason, whether or not he has been medication compliant and whether or not he has completed appropriate clinical programs with his treating medical professionals.
I also note that the mother proposes that X spend overnight time with the father, including half of school holidays when she commences school. She has not proposed any orders requiring the father to maintain regular contact with his treating medical professionals, to take medication as prescribed, or to do anything else to seek to ensure a level of protection for X from the risks she says the child would be exposed to in the father's care if his mental health was not being properly treated. In my view that raises serious questions about the bona fides of the concerns the mother has expressed. Either her concerns are exaggerated, or she is content to expose the child to a risk of harm provided the child lives primarily with her.
Despite the serious issues with the father's credit, his past failure to remain medication compliant, and the singular lack of persuasive expert evidence about his current mental health and prognosis, on balance I am not satisfied that the father's mental health is a significant adverse factor for the child in the father's care, either on the basis of spending time with him or living primarily with him, although I am satisfied it remains a relevant issue to consider in framing any parenting orders.
I am satisfied that regardless of the time X spends with the father, there should be orders requiring him to attend on his treating medical professionals in relation to his mental health as recommended by them, to comply with all medication prescribed for him, and to check with his parents or another fully literate person each time he has a prescription filled to ensure that he has correctly understands the dose of the medication he is required to take and the frequency with which he is to take it.

The parties’ proposals

The mother

After separation the mother remained living in a separate residence on a rural property owned by her mother and step-father to the north of (omitted).
The mother entered into a relationship with Mr R, who then lived on the NSW Central Coast, in mid 2013. On (omitted) 2013, the mother found out she was pregnant to Mr R. They commenced to cohabit in the home on the mother's parents’ property at (omitted) sometime after November 2013. On moving to the (omitted) area, Mr R had difficulty finding permanent full time employment. At the time of the hearing in March 2014 and in September 2014, he was in full time casual employment in the (omitted) area.
Shortly before the hearing in March 2014, the mother’s mother and step-father bought another property at (omitted), further from (omitted) and from (omitted). They intended moving to this property and selling their (omitted) property where the mother, Mr R and Z were living. The mother's evidence in March 2014 was that she and Mr R intended remaining in the (omitted) area after her parents sold the (omitted) property and would secure their own larger rental accommodation.
On the resumption of the hearing in September 2014, the mother said she and Mr R had been unsuccessful in securing rental accommodation in the (omitted) area, despite applying for a number of properties, so they had moved to live near her parents in (omitted), although not on the same property. They moved to their jointly leased premises at (omitted) on 28 June 2014 under a three month’s lease. They moved there despite Mr R having full time casual employment in the (omitted) area and despite the fact that the move meant that X’s parents were living even further apart.
At the resumption of the hearing in September 2014, the mother gave evidence that her relationship with Mr R had broken down and she had asked him to vacate their home, although he had not yet done so. It is unclear when the mother asked Mr R to leave the home they shared, but it must have been before she swore her updating affidavit on 14 August 2014. When she was cross-examined on 17 September, 2014, he had still not moved out, and it was unclear when he would. She then said they were trying to improve their relationship rather than separate, but had not sought relationship counselling due to Mr R’s work commitments. She said she was then not sure whether they would separate.
The uncertainty about the future of the mother's relationship with

Mr R is compounded by the fact that the mother did not rely on an updating affidavit from him as to the changes in their household and their relationship since his first affidavit. There was no explanation why he was not called as to the changes in their circumstances. The mother's evidence they remained on good terms suggests he was readily available. There was no apparent reason why Mr R could not have sworn an updating affidavit to corroborate the mother's evidence about the state of their relationship.
The mother said that she and Mr R were jointly speaking to the landlord of their (omitted) home about a new twelve month lease, despite the uncertainty about the future of their relationship.
The mother said she believed that when he moved out of the (omitted) property Mr R intended to move to (omitted). It is uncertain, in light of the inability of the mother and Mr R to obtain rental accommodation in the (omitted) area earlier this year, whether this is a realistic expectation. In any event, she said that if Mr R’s casual employment ended, he intended moving back to the Central Coast.
The mother worked three shifts a week at a (employer omitted) until shortly before Z’s birth. The child’s maternal grandmother was available to care for X while the mother was at work on occasions when X was in her care. The mother said she intended to continue as a full time carer for Z, but she may possibly return to work in about six months, that is around March 2015, by which time Z would be one year old. She said that would be conditional on her being able to obtain work during the day time.
X attends a play group each Wednesday she is with the mother. It is one where the parents are involved and she takes Z with her.
The mother said that she would not feel “safe” if she moved to live in (omitted) because of the “animosity” shown towards her by the father's family. She gave no evidence of any animosity towards her by members of the father's family. However, I note the opinions of Ms T and the paternal grandmother that the mother is a bad mother, and the paternal grandmother’s opinion that the mother is a liar, opinions not justified by any credible evidence presented in this hearing. The mother also expressed the belief that it would be difficult to obtain employment in the (omitted) area, without giving any reason why she held that belief.
The mother's proposal that X live primarily with her involves X moving into what is a somewhat unstable and uncertain household. It is unknown whether or when Mr R may move out. It is uncertain if he does where he will move to and what that may mean in relation to demands on the mother's time to make Z available to spend time with his father. And where Mr R is the breadwinner in the mother's household, the absence of any evidence as to the mother's ability to afford the rent on the (omitted) property if Mr R moves out means it is unclear whether the mother may need to move again, and if so, where she would move to. The fact the mother and Mr R are jointly attempting to negotiate a 12 months lease on the (omitted) property when it is uncertain whether Mr R will remain living there heightens the uncertainty.
The mother's proposal for X’s time with the father are concerning. She proposed one weekend a fortnight and a period of six hours on one weekday per week. I agree with the Family Consultant that the travel time between the parents’ homes – about a five hour round trip – is inappropriate for a child of this age to spend such a relatively short period of time with a parent. While the Family Consultant saw the mid-week time as appropriate, he was of the opinion that the parent should spend the time with the child in the location where the child lives to remove the burden of that travel from the child. I agree with this opinion.
The mother did not seek to alter her proposals for the father's time after hearing the Family Consultant express this opinion, and I am concerned it reflects adversely on the mother's ability to appreciate and meet the child’s needs. In contrast, I note the father did alter his proposals after the Family Consultant said they were inappropriate for the child.
While the father has been shown to have repeatedly excluded the mother from involvement with the child, from involvement in decision making about the child, and from significant information about the child, I am not satisfied that the mother would necessarily act differently. True it is she consulted with the father before having the child’s 24 month immunisations carried out. But she has demonstrated a propensity to engage in conflict and disputation with the father ostensibly over matters going to the child’s welfare when she has been guilty of exactly the same failings she has criticised the father for.

The father

The father lives in rented accommodation with the child, Ms T and their child Y. X attends day care from 9 am to 3.30 pm each Friday she is with the father. The father intends that to two days a week, Thursday and Friday.
I have dealt with my findings about the de facto relationship between the father and Ms T and the father's knowledge she was expecting his child when addressing their credit as witnesses.
The father said it would be of equal benefit to the child to live with either him or the mother.
The father was in receipt of a disability support pension because of his PTSD. After Y’s birth, he obtained full time casual employment in July 2014. However, after only eight days on the new job, the father injured his back and was initially receiving worker’s compensation. It seems those payments have ceased although the father says he is not yet fit to resume work.
The father initially proposed that when X commenced school, she spend time with the mother during school terms from after school Friday to before school Monday. He appeared not to have considered the impact on the child of having to travel over 100 kilometres to school each alternate Monday morning. He withdrew that proposal when he supported the orders proposed by the Independent Children's Lawyer at the end of the hearing.

The Family Consultant’s report

The Family Consultant stated in the Family Report that in the observation sessions of the child with each parent, each parent interacted appropriately with the child, with both parents being educational in their approach. He reported that the child showed no distress on “transitioning” between the parents for the observation sessions. The Family Consultant who conducted the Child Dispute Conference in May 2013 reported that X was not distressed when the father left the room when the mother was present, and that X transferred readily between the parents. The evidence of both parents is that X does not display significant distress or reluctance on passing between the parents.
The Family Consultant reported in the Family Report that X became “extremely distressed” at separating from the father, but this does not seem to refer to the child passing from the father to the mother. He said it was age-appropriate behaviour for a child securely attached to a parent whose care the child was leaving.
The Family Consultant expressed the opinion that “unless there is some adverse finding regarding the father's mental health”, the child should continue to live primarily with the father. He said that while the father's failure to consult the mother about X might change his opinion as to the parent with which X should primarily live, it did not do so based on his consideration of the relative stability of the parents’ households, his assessment of the father's parenting approach based on his observations of the father with the child and the glowing reports from Mr H.
In cross-examination of the Family Consultant about the father's mental health issues and their significance to the opinions he expressed in the Family Report-
a)The Family Consultant explained that the qualification to his opinion that X should remain living with the father referred to any identified issue in relation to the father's current mental health as to non-compliance with medication or any concern expressed by a mental health professional.
b)
The Family Consultant said he was aware at the time of the interviews for the Family Report that the father was seeing

Mr T, and that it would concern him if the father did not complete his program with Mr T. The father did not complete the program he began with Mr T. I am satisfied that the referral to Mr T was for purely therapeutic purposes and not for the purpose of obtaining a report to support a victim’s compensation claim by the father.
c)The Family Consultant said that given the matters Mr T said he was addressing with the father, it seemed the father had lied to him in saying his mental health issues were under control, and this was a matter of real concern to him. As I have already noted, the letter from Mr T is ambiguous, and there is no evidence to support a finding that the father was then suffering anxiety or was paranoid when seeing Mr T. I am therefore not satisfied that the father lied to the Family Consultant about his mental health in relation to the issues for which he was seeing Mr T.
d)The Family Consultant also said it would concern him if there was no evidence of the current opinion of the father's treating mental health professionals about the father's current mental health. There was no such evidence and the Family Consultant did not contact any of the mental health professionals the father mentioned to him to get their opinions.
e)The Family Consultant said it would be significant to his opinions if the court found that the father repeatedly lied to attempt to put his case in a better light. I am satisfied that the father has consistently done so.
f)The Family Consultant said that if, as is the fact, in June 2013 the father reported to his doctor recently having nightmares and flashbacks relating to his childhood sexual abuse, this would give him real concern, it would meet the condition he attached to his opinion that X should remain living with the father, and it would cause him to change his recommendation “unless there was something more”.
g)If the father had demonstrated insight in relation to his mental health, this would be positive as it would lead to him seeking therapeutic help when needed. However, the fact the father had not been candid with him about the matters he was seeing Mr T about undermined any attempt by the father to show he had insight and would seek appropriate professional assistance when needed. As mentioned, I am not satisfied the evidence supports a finding that the father was not candid with the Family Consultant about his contact with Mr T.
In cross-examination about matters relating to the father's mental health, the Family Consultant said he would change his recommendation that X should remain living with the father. However, he did not during his cross-examination recommend that X live primarily in the mother's care.
The Family Consultant said in cross-examination that he had no concern about the child in either party’s household, and could not say whether the father’s household was better for X than the mother's. He noted the uncertainty about the mother's relationship with Mr R, but also noted that he had no evidence on which to assess the relationship between the father and Ms T. He referred to the mother having recently moved house, and to the fact the child had lived at four different addresses since the father took her to (omitted). When it was put to him that it would be better for the child to remain living with the father, the Family Consultant rejected the proposition, expressing concern when parents conceal critical information from him, as he believed the father had, and given the distance between the parents, it had been incumbent on the father to keep the mother informed of matters concerning X and he had not done so, suggesting a lack of insight into the child’s needs.
The Family Consultant expressed the opinion that both parents were nurturing of the child. However, he said he formed the view that the father had done the majority of the parenting and had done a good job. He said while he had been able to form an opinion of the father's parenting capacity, it was difficult to form an opinion of the mother's parenting capacity as the father had been the primary carer for the nine months from separation to the interviews for the Family Report, and the father had provided significant care prior to separation.
The Family Consultant expressed the opinion that if both parents wished to maximise X’s development of positive relationships with both parents, the parents need to make every effort to relocate closer to each other and engage in mediation to better appreciate X’s need for the parents to better and more cooperatively communicate on child related issues.

The applicable law

The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.
In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the court determines the children's best interests while s.60B sets out the objects and princi9ples on which Part VII is based.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”

If the court is to make an equal shared parental responsibility order, the court must consider the child spending equal time with each parent, and if such an order is not to be made, must consider the child spending substantial and significant time with each parent (s.65DAA, and see MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424).
I note that the position of both the parents and the Independent Children's Lawyer is that whether or not either equal or substantial and significant time is in X’s best interests, the parents live too far apart to make either type of parenting arrangement reasonably practicable. I agree.

Assessment of primary considerations (s.60CC(2))

(a) The benefit to the child of having a meaningful relationship with both of the child’s parents

X has a meaningful relationship with both parents, and she has clearly benefitted from this. I am satisfied and there was no issue in these proceedings that X can continue to benefit from a meaningful relationship with both parents in the future.

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

The mother asserted that the father was controlling of her and highly critical of her housekeeping when she was working and the father was not, using belittling and demeaning language. The father asserted that the mother was controlling, and swore at him and belittled him.
Neither party filed a Notice of Family Violence, neither party was cross-examined on these matters, and neither party’s legal representative submitted there had been family violence.
The father alleged that the mother was “abusive” of the child, and alleged the mother smacked the child while changing her nappy so hard she left a hand imprint on the child’s bottom. The mother denied these allegations, she was not cross-examined about them, no Notice of Abuse was filed in the father's case, and it was not submitted on his behalf that there had been any child abuse. I accept the mother's evidence denying the father's allegations and am satisfied they were another invention of the father's to bolster his case.
I am not satisfied there are any protective concerns for X with either parent.

Assessment of additional considerations (s.60CC(3))

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

X is too young to have expressed any views about her parenting that the court could place any weight on.

(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

I am satisfied that as assessed by the Family Consultant, X has a good and close relationship with each of her parents. As she has been in the father's primary care since February 2013, when she was only 15 months old, it would be surprising if X did not have a somewhat stronger relationship with the father than with the mother, and I am satisfied this is the case. She demonstrated a healthy attachment to the father.
I am satisfied X has close and healthy relationships with her maternal grandparents, paternal grandparents, her young maternal aunt, Ms T and Mr R.

(c) 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; and
to spend time with the child; and

(iii) to communicate with the child

I am satisfied that the mother has sought to spend time with X, and I am satisfied that the father restricted and limited X’s opportunities to spend time with the mother, both in relocating so far away and by severely limiting the mother's time with X until orders were made. These matters are particularly significant given X very young age at separation.
The mother has not sought to communicate with X, although given X’s young age, neither telephone nor Skype communication would have been particularly significant in maintaining X’s relationship with the mother.
I am satisfied that the mother has wanted to participate in making major decisions about X but that she has been prevented from doing so by the father unilaterally making some major decisions, for example his unilateral relocation of X from the (omitted) area to (omitted) at separation, deciding what early learning centre X would attend on his unilateral relocation without consultation with the mother, and having the child’s ears pierced. The mother made a unilateral decision to take the child to playgroup.
The father has made other unilateral decisions, albeit not about major long-term issues, that nonetheless impact on X’s relationship with the mother, for example the Pepper Pig concert, and has failed to provide the mother with relevant information to allow the mother to participate in events of significance to X, for example the Easter Hat parade.

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

The mother has paid child support as assessed, albeit for some of the time since separation she has been assessed to pay no child support.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

While the father ultimately supported the orders proposed by the Independent Children's Lawyer, he had proposed that X spend five consecutive nights a fortnight with the mother, stating that he did not think that amount of time with the mother would bother the child. Given the father's opinion, the Family Consultant expressed the view that changing the primary care for X from the father to the mother was not likely to be a problem for the child. He said that if the mother's time with the child had been appropriate and nurturing, this would enhance this opinion. I am satisfied the mother's time with the child has been appropriate and nurturing
Changing the child’s primary care to the mother would remove the child from a relatively settled environment with the father and Ms T, and place the child in a relatively unsettled environment. The mother's relationship with Mr R has fractured, and it is unclear whether they will successfully repair their relationship. The mother has not withdrawn her request that Mr R leave their home although she said she and Mr R are “working on” their relationship. Mr R was not called to corroborate the mother's evidence about the change in their relationship despite being a witness in her case. If he does leave, it is unclear whether the mother will remain living where she currently lives, as she did not address her capacity to meet the rent on her own in her updating evidence. If she could not afford the rent on her own, it is unknown where she may then live.
Moving the child to the mother's primary care would limit the father's ability to restrict and control the flow of information about X to the mother and to restrict the mother's involvement in decision making about the child. However, it is uncertain whether the mother would be more likely than the father to provide the other parent with information about X and involve him in decision making about the child. Although she did consult with the father before arranging X’s two year old immunisations, she unilaterally decided to send X to playgroup when spending time with her and she has demonstrated an inability to prioritise X’s needs and welfare over the parental conflict, hypocritically criticising the father for things she herself has done.
Another element of uncertainty for X in the mother's care is the prospect of the mother possibly returning to work around next March. While one might infer from the assistance she has provided in the past that the maternal grandmother would be prepared to assist the mother in child care if necessary, the uncertainty around where the mother would live if Mr R leaves and she cannot afford the rent on her current premises raises some uncertainty about whether the mother could remain living close enough to the maternal grandmother to be able to avail herself of assistance from her.

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

The distance between the parents limits the time X can spend with the parent with whom she does not primarily live. This has been the case since the father’s unilateral relocation to (omitted) at separation. However, the distance between the parents has increased with the mother's move to (omitted).
The arrangements for the child to be in the care of each of her parents must take into account the impact of a long car trip between the parent’s homes, about two and a half hours each way, particularly considering X’s young age.

(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

The father's failure to consult the mother on various issues concerning X and his failure to keep the mother informed of relevant information about X raise serious doubts about the father's appreciation of the significance of the child’s relationship with the mother and the significance of the mother in the child’s life, and suggest the father has been prepared to pursue his conflict with the mother with no regard for what is best for X. They raise real doubts that he will promote X’s relationship with her mother in the future. This is a failure to meet a fundamental need the child has.
I am satisfied that the father did not disclose the fact of X’s half-brother Y to the mother until Y was about five months old. I agree with the Family Consultant that this speaks of a lack of appreciation of X’s needs by the father.
I have the same concerns about Ms T. She was complicit in keeping significant information from the mother, including the Easter Hat parade and the fact of Y’s birth. While it appears that a workable relationship has developed between the mother and

Ms T, it is clear she places her loyalty to the father ahead of any concern for X, as evidenced by her withholding important relevant information both from the mother and from the court.
The mother sought to make the case that because of the father's mental health issues and his suggested unreliability in remaining medication compliant, there was a real risk that the father would not be able to properly care for X. However, as I have explained, I am not satisfied that there is currently any appreciable risk that the father will be unable to care for X because of his mental health symptoms becoming acute. I am satisfied that whether X is to live with the father or spend time with him, there should be orders that the father attend on his treating medical practitioners and mental health workers as recommended by them, and that he take such medication as is prescribed for him from time to time as directed by his treating medical practitioners. I am satisfied that this is sufficient to address this issue.
The father conceded that his limited literacy meant that as X progressed in her schooling, he would not be able to assist her with her school work as much as the mother could. He gave no evidence to suggest he intended engaging in any program to improve his literacy.
While the mother did consult with the father before arranging X’s two year old immunisations, she is untested in relation to her promoting of the child’s relationship with the father since separation. I note that she has hypocritically criticised the father for things she herself has done or not done, under the guise of suggesting the father has not met the child’s needs, when she was guilty of exactly the same failings. I remain unconvinced that if X lived primarily with the mother she would be better able to put X’s interests above the parental conflict than the father.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

X is still quite young. However, the geographic separation of the parents renders a parenting regime providing the extent and frequency of contact with both parents that may be best for a child of her age impractical.

(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

This consideration is not relevant.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

As mentioned, the father's placing his needs and wants ahead of X’s, and his pursuit of the parental conflict without regard for the impact on X, speak of a poor attitude to the child and his responsibilities as X’s father. However, as mentioned, I am not satisfied the mother would be likely to act in a more child focussed way if X lived primarily with her.

(j) Any family violence involving the child or a member of the child’s family

I have dealt with this issue.

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

the nature of the order;
the circumstances in which the order was made;

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

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

any other relevant matter

There are no family violence orders.

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

It is not readily apparent that one viable parenting arrangement would be less likely to lead to further litigation than another.

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

There are no other relevant matters.

Assessment of competing proposals and other options

It was the mother's case that there were significant concerns about the father's current mental health, that the father has sought to exclude or restrict the mother's involvement with the child, and that the mother could better meet X’s needs.
It was the father's case that X had been well cared for by him, that the mother had left her in the father's care, and that the uncertainties in the mother's household meant X’s interests would be better served by remaining in the father's primary care.
It was submitted on behalf of the Independent Children's Lawyer that X is loved by both her parents, she has received adequate parenting from both of them, and there were insufficient reasons by reference to X’s best interests to move her at her age from settled care arrangements with the father to a somewhat unsettled household with the mother.
As mentioned, it was common ground that the parents should have equal shared parental responsibility, and that neither an equal time arrangement nor a substantial and significant time arrangement was reasonably practical due to the geographic separation of the parties.
I am satisfied both parents can meet X’s needs, although neither has been able to put X’s needs above their conflicted relationship.
The father has failed to appreciate and meet as he should have X’s need for a close relationship with her mother and for the mother to be equally involved in decision making about X and to have an equal opportunity to participate in events of significance to X. The father has also failed to appreciate both the fact and importance for X of her sibling relationship with Y, and inferentially with Z.
Not having the primary care of X, the mother has had less opportunity to demonstrate whether she has a better ability than the father to put X’s needs above the parental conflict, but she has nonetheless demonstrated an inability to do so. She consulted the father about X’s immunisations, but not about her attending play group.
Placing X with either parent will entail some uncertainty about the primary carer’s commitment to facilitating and promoting X’s relationship with the other parent.
Placing X with the father will maintain X in a settled care arrangement in which her needs generally have been well met. While there are grounds for concern about the father's lack of candour about his mental health, his failure to consistently maintain his involvement with his mental health professionals, and his failure in the past to remain medication compliant, there is no evidence that in the period since separation in early 2013 the father has displayed any signs of deteriorating mental health, despite the ongoing anxiety and stress of these proceedings. He has been able to meet X’s needs at a time of very rapid growth and development in the child’s life.
Placing X with the mother will involve a significant change for X. While she is comfortable with the mother and the mother can meet her needs, she will nonetheless have a change of home, a loss of the level of involvement with the father, Ms T, Y and the paternal grandparents with which she has become accustomed, and a change of pre-school with the need to make new friends there. It is unclear where she would be going to pre-school if living with the mother in (omitted). It is uncertain whether Mr R would remain a member of the mother's household, and while he remains living in the mother's household at present, his relationship with the mother has broken down. If Mr R moves out, it is uncertain whether the mother will be able to afford the rent on her own and therefore if X moves to live primarily with the mother, she may be faced with yet another change of residence soon after moving to the mother.

Decision

In circumstances where I am satisfied that other matters are evenly balanced between the parties’ proposals, maintaining X’s current stable care arrangements assumes particular significance in this case, particularly due to the uncertainties surrounding the mother's household in the immediate future.
On balance, I am satisfied X’s best interests will be met by remaining in the father's primary care and spending time with the mother.
No orders were sought or proposed orders regulating X’s time with her parents on the child’s birthday or the birthdays of the parents or X’s half siblings. When this was raised, both parties and the Independent Children's Lawyer indicated this was not an oversight, and no orders were sought for these special days.

I certify that the preceding one-hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Associate:

Date: 17 November 2014

[2014] FCCA 2493

17 November 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction