Ralston and Bakker

FAMILY COURT OF AUSTRALIA

RALSTON & BAKKER

[2013] FamCA 807

FAMILY LAW – CHILDREN – Parental responsibility – Best interests of the child.
FAMILY LAW – CHILDREN – With whom a child lives – Substantial and significant time.
FAMILY LAW – PROPERTY – Settlement in relation to a de facto relationship.
FAMILY LAW – CHILD SUPPORT DEPARTURE – Application for departure order.

Child Support (Assessment Act) 1989 (Cth)

Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116
Gyselman & Gyselman (1992) FLC 92-279
Saberton & Saberton [2013] FamCAFC 89
Stanford & Stanford (2012) 293 ALR 70

APPLICANT:

Mr Ralston

RESPONDENT:

Ms Bakker

FILE NUMBER:

SYC

7826

2011

DATE DELIVERED:

17 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

11-13 and 15 March;
2-3 and 9 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Levy; Mr Blackah

SOLICITOR FOR THE RESPONDENT:

Archer Legal

Orders

Parenting

The parties shall have equal shared parental responsibility for

T Bakker-Ralston born … 2010 (“the child”) and, without limiting the generality of the foregoing, they shall in particular have equal shared parental responsibility in relation to the following matters concerning the child:
(a)his education
(b)his religious and cultural upbringing
(c)his health
(d)his names and
(e)any change to his living arrangements which will make it significantly more difficult for him to spend time with a parent.
In the exercise of equal shared parental responsibility in relation to matters concerning the health and education of the child (save in relation to matters of health in the case of emergency), should either parent wish to propose a change to the existing arrangements for the assessment or treatment of the child, the parent proposing the change (“the proposing parent”) shall not implement it until he or she has:
(a)
informed the other parent (“the non-proposing parent”) in writing prior to making the proposed change and in such communication advised the

non-proposing parent of the reasons for the proposed change and
(b)provided the non-proposing parent with access to any advice or information relied upon by the proposing parent in support of the change and
(c)allowed the non-proposing parent a period of seven days from the time that the above information is received to respond to the proposing parent with their views on the proposed change and provide any alternative proposal that they may have.
If the parties cannot agree to a change to the existing arrangements for the assessment or treatment of the child by following the process outlined in

Order 2 above, the parties are to submit their dispute to mediation. Unless otherwise agreed between the parties, the mediator shall be selected by the proposing parent from a list of three mediators proposed by the non-proposing parent and, thereafter, the parties are to submit to mediation on the issue.
Unless otherwise agreed in writing by the parties, the child shall live with the mother other than as herein specified when he shall live with the father.
The child shall live with the father as follows:
(a)     for a period of six months from the date of these Orders:
(i)each Wednesday from 8.30 am to 1.30 pm
(ii)each Thursday from 4.30 pm to 7.15 pm and
(iii)each alternate Saturday from 9.00 am to Sunday at 5.00 pm
(b)    for the period of the next succeeding six months:
(i)each Wednesday from 8.30 am to 1.30 pm
(ii)each Thursday from 4.30 pm to 7.15 pm and
(iii)each alternate weekend from Friday evening after child care until Sunday at 5.00 pm.
(c)     for the next succeeding six months:
(i)each Wednesday from 8.30 am to 1.30 pm
(ii)each Thursday from 4.30 pm to 7.15 pm and
(iii)on alternate weekends from Friday evenings after child care, kindergarten or school until Monday morning before the commencement of child care, kindergarten or school.
(d)    for the next succeeding three months:
(i)each Wednesday from 8.30 am to 1.30 pm
(ii)each Thursday from 4.30 pm to 7.15 pm and
(iii)in alternate weeks from Thursday evening after child care, kindergarten or school until Monday before the commencement of child care, kindergarten or school.
(e)thereafter, in alternate weeks from Wednesday evening after child care or school until Monday before the commencement of school.
In addition to the times that the child shall live with the father pursuant to Order 5 above, the child shall live with the father as follows:
(a)
on the child’s birthday each year, if he is in the mother’s care, from

4.30 pm to 7.30 pm
(b)on the father’s birthday each year from 4.30 pm until 8.30 am the following day
(c)on Father’s Day each year from 4.30 pm until 8.30 am the following day
(d)on Easter Sunday in 2014 and in and each even-numbered year thereafter from 9.00 am until 7.00 pm
(e)
on 25 December from 9.00 am until 26 December at 9.00 am in

odd-numbered years and from 24 December at 9.00 am until

25 December at 9.00 am in even-numbered years
(f)
during the holiday closure of K Child Care Centre, which runs from

18 December 2013 until 27 January 2014, from 5.00 pm on 10 January 2014 until 5.00 pm on Saturday, 18 January 2014
(g)during the first school holiday period after the child commences primary school, for the first half of that school holiday period unless otherwise agreed between the parties in writing
(h)in each school holiday period thereafter for one half of the school holiday period, for the first half thereof unless otherwise agreed between the parties in writing and
(i)at any other times as agreed between the parties in writing.

The time that the child lives with the father pursuant to Orders 5 and 6 above shall be suspended and the child shall live with the mother at the following times:
(a)on the child’s birthday each year for no less than two hours, with such time to be agreed between the parties and, in the absence of agreement, from 3.00 pm until 5.00 pm
(b)on the mother’s birthday each year from 9.00 am until 5.00 pm if it falls on a weekend or school holiday, and from after child care or school until 6.30 pm if it falls on a child care or school day
(c)on Mother’s Day each year from 9.00 am until 5.00 pm
(d)on Easter Sunday in 2015 and in and each odd-numbered year thereafter from 9.00 am until 7.00 pm
(e)
on 25 December from 9.00 am until 26 December at 9.00 am in

even-numbered years and from 24 December at 9.00 am until

25 December at 9.00 am in odd-numbered years
(f)during the holiday closure of K Child Care Centre from 18 December 2013 until 27 January 2014, excluding the period from 5.00 pm on 10 January 2014 until 5.00 pm on Saturday, 18 January 2014
(g)during the first school holiday period after the child commences primary school, for the second half of that school holiday period unless otherwise agreed between the parties in writing
(h)in each school holiday period thereafter, for one half of the school holiday period, for the second half thereof unless otherwise agreed between the parties in writing and
(i)at any other times as agreed between the parties in writing.
Whilst the child attends K Child Care Centre or other agreed child care or kindergarten all changeovers are to occur at K Child Care Centre or such other child care or kindergarten as is agreed, unless otherwise agreed between the parties in writing, and such changeovers are to be facilitated by Ms O.
When the child attends school, changeovers are to occur at that school unless otherwise agreed.
In the event that Ms O is unable to facilitate a changeover the receiving parent is to nominate another person to facilitate the changeover.
The parties are to ensure that the child attends such day care facility or kindergarten as they may agree within 21 days hereof, and in the absence of agreement at that time at K Child Care Centre, for four days per week (excluding Wednesdays) from 9.00 am until 4.00 pm until the child attends primary school.
The parties shall consult with the General Practitioner Dr V with respect to the health and medical needs of the child, except in the case of emergency or unless otherwise agreed between the parties in writing.
The parties shall consult with either Ms B or Mr L to assist them in communicating with each other and in co-parenting and each party is to pay for any fees associated with such consultations in equal shares as and when they fall due.
Each party shall notify the other party of any change to their residence, landline telephone number, mobile telephone number and email address prior to the change and, if that is not possible, not later than 24 hours following the change.
Each party shall notify the other party immediately upon the child becoming involved in a medical emergency while the child is in their care.
Each party shall provide the other party with the name and contact details of any medical practitioner or health professional that the child may consult with in an emergency within 48 hours of such consultation taking place.
Each party shall provide all authorities necessary to any medical practitioner or health professional to enable that medical practitioner or health professional to release to both parents any information or documents in relation to the child’s treatment, assessment results and other matters concerning the child’s health.
The parties shall authorise any child care centre, kindergarten or school which the child may attend to send copies of reports, results, newsletters, photos and other documentation to both parents.

Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached to the sealed Orders and these particulars are included in these Orders.

Property

The mother shall pay to the father the sum of $332,860 within three months of the date of these Orders.
The mother shall do all acts and things necessary to prevent the Suburb X property from being further encumbered save for the purpose of complying with these Orders.
Upon receipt of the payment in Order 20 above, the father shall immediately do all acts and things as may be necessary to transfer to the mother all of his right, title and interest in and to the property situate at and known as

the Suburb X property in the state of New South Wales, Folio Identifier … (“the X property”).
Simultaneously with the transfer referred to in Order 22 above, the mother shall assume the whole of the mortgage liability charged on the X property and indemnify and save harmless the father from all claims, actions, suits and demands with respect to the mortgage and do all acts and things as may be necessary to cause the father to be released from any obligation thereunder.
In the event that the mother does not pay to the father the sum referred to in Order 20 above or in the event that she does not or is unable to comply with Order 21-23 above, the parties shall do all acts and things as may be necessary to procure the sale of the X property for the best price reasonably obtainable and, in that event, the following orders shall apply:
(a)
the parties shall submit the property for sale by auction and the parties shall appoint such agent and such solicitor to act on the sale as is agreed between them and, in the absence of such agreement, such agent as is appointed by the President of the Australian Property Institute

(New South Wales Division) and such solicitor as is nominated by the President for the time being of the Law Society of New South Wales
(b)the parties shall nominate a reserve price and, in the event that they are unable to agree on a reserve price, the parties shall nominate such reserve price as is determined by a valuer chosen by the mother from three qualified valuers nominated by the father
(c)the parties shall attend the auction for the purpose of negotiating with the highest bidder and signing any contract for sale
(d)in the event that the property is not sold at auction, it shall be listed for sale by private treaty at the reserve specified for the auction or such other sum as the parties may agree
(e)if within three months of such listing the property remains unsold, it shall again be submitted to auction with a reserve price set at such sum as the parties may agree and, in the absence of agreement, at a sum which is five per cent lower than that set at the first auction
(f)if the property is again not sold at auction, it shall again be submitted for sale by private treaty and subsequent auctions until sold with the provisions of these Orders to mutatis mutandis apply to those sales
(g)on sale of the property, the proceeds of sale shall be applied in the following manner and priority:
(i)in payment of the agent’s selling commission and expenses
(ii)in payment of the legal costs of and incidental to the sale
(iii)in repayment to either party of money reasonably expended by them with the consent of the other to prepare the property for sale
(iv)in payment to any mortgagee of the property the amount then necessary to discharge the mortgage
(v)in payment to the mother of 40 per cent of the balance then remaining minus the sum of $142,380 and
(vi)in payment to the father of the balance then remaining.

The father is to transfer to the mother all his right title and interest in and to any shares in MK Pty Limited and the mother is to indemnify the father from any claim arising out of his association with the said company.
Except as otherwise provided for in these Orders, the father is to the exclusion of the mother entitled to all of his right, title and interest in and to:
(a)any motor vehicle, household contents and personal effects in his name, control or possession as at the date of these Orders
(b)any money standing to his credit in bank accounts held in his name
(c)his superannuation entitlements and
(d)
all other financial resources and assets in which he has an interest as at the date of these Orders, including any interest that he has in

D Family Trust and Ralston Holdings Pty Ltd.
Except as otherwise provided for in these orders, the mother is to the exclusion of the father entitled to all of her right, title and interest in and to:
(a)any motor vehicle, household contents and personal effects in her name, control or possession as at the date of these Orders
(b)any money standing to her credit in bank accounts held in her name
(c)her superannuation entitlements and
(d)all other financial resources and assets in which she has an interest as at the date of these Orders, including any interest that she has in any corporate entities, or real estate.
Except as otherwise provided for in these Orders, each party is solely responsible for any debts and liabilities in their name and shall indemnify and keep indemnified the other party from and against any actions or claims arising from such debts and liabilities.
The parties shall do all such acts and things as may be necessary to give effect to these Orders and in the event that either party refuses or neglects to execute any deed or instrument necessary for that purpose the Registrar of the Court is appointed pursuant to section 106A of the Act to execute such deed or instrument in the name of the said party and to do all acts and things necessary to give validity to the operation of the said deed or instrument and the Registrar is authorised to execute any such necessary instrument upon being satisfied by affidavit that the neglect or default as the case may be has occurred.

Child support

The mother’s applications with respect to child support departure and

non-periodic child support under the Child Support Assessment Act 1989 (Cth) are both dismissed.

General

Any transcript made available to either of the parties is to be forthwith returned to the Registry within 21 days.
The exhibits may be returned upon the usual undertakings.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed for the list of Active Pending Cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ralston & Bakker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7826 of 2011

Mr Ralston

Applicant

And

Ms Bakker

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings with respect to parenting and financial matters, including child support departure, between the parties to a

de facto marriage relationship.
The proceedings were commenced by the applicant, Mr Ralston

(“the father”), in December 2011. Ms Bakker (“the mother”) is the respondent. The parties were in a relationship of cohabitation for approximately two and a half years.
There is one child of the relationship, T Bakker-Ralston (“the child”), who at the conclusion of the hearing was three and a half years old. The child suffers from some developmental problems, the nature and extent of which are disputed by the parties. The parties’ attitudes and approaches to dealing with the child’s developmental problems have been and continue to be a cause of conflict and tension between the parties with respect to the child.
The father seeks an order that the parties have equal shared parental responsibility for the child. The mother wishes to have sole parental responsibility for the child with respect to matters of health and education, but she otherwise agrees that the parties should have equal shared parental responsibility for the child.
At present the child lives with the mother and spends time with the father three times per week, which does not include overnight time. The parties agree that the child’s time with the father should increase to overnight time, however, they disagree on how and when such increases in time should occur.
With respect to financial issues, the net asset pool is relatively small and the difference in the parties’ claims is significant.
As to child support, the mother is seeking a departure from the assessed rate of periodic child support together with an order for non-periodic child support under the Child Support Assessment Act 1989 (Cth) (“the Assessment Act”).

Background facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father was born in 1962 and is currently 51 years old. He is employed as a professional academic at A University.
The mother was born in 1972 and is currently 41 years old. She is employed as a professional academic at Z University.
Prior to the commencement of their relationship, the mother and father had interests in the following entities:
a)MK Pty Ltd (“MK”), which was established by the mother. The mother asked the father to be a shareholder of MK in 2009 or 2010. She holds two of the three issued shares and the father holds one.
b)Ralston Holdings Pty Ltd (“RH”). The father is the sole director and shareholder of RH, which is the vehicle through which his income is paid.
c)D Family Trust, of which the father is a beneficiary.
The parties commenced cohabitation in April 2009. The father moved from his home in Suburb H (“the H property”) to the mother’s place of residence in Suburb C. The father commenced renting out the H property from this time.

In March 2010, the child was born. The child is approximately three years and six months old. Following the birth of the child, the parties shared in his care with the assistance of the child’s nanny, Ms O. They both continued working flexible hours.
In April 2011, the mothers’ dog attacked the child. The child suffered puncture wounds to the back of his head.
In July 2011, the parties purchased a property at Suburb X (“the X property”) as joint tenants. The property was purchased for $1,320,000 and funded by way of:

a)a mortgage to ANZ in the sum of $1,121,039
b)$70,000 which the father obtained through a refinance of his mortgage over the H property
c)payments from the father’s bank account totalling $58,000
d)payments from the mother’s bank account totalling $45,000 and
e)funds totalling around $24,000 which the parties had received for work performed.

Following the purchase of the X property, the parties spent a couple of months renovating the property. Each party contributed to the costs of those renovations but the extent of their contributions is disputed.
In July 2011, around ten days after the purchase of the X property, the father sold the H property. The net proceeds of sale totalled $184,773. This sum was credited to the parties’ joint ANZ One account and the father asserts that the funds were used to pay for the renovations to the X property.
In August 2011, the parties registered the entity W Pty Ltd in order to capitalise on research that they had completed. The parties were both registered as directors and equal shareholders, however, the father asserts that to his knowledge the company has never traded.
On 13 November 2011, the mother’s dog attacked the child for a second time. The child sustained a bite wound to his head and the father took the child to hospital. The father also reported the attack to the local Council. An employee of the council visited the X property a few days later.
On 14 November 2011, the parties separated. The mother and the child remained living in the X property and the father moved into rented accommodation.
In December 2011, the father commenced proceedings in this Court.
In March 2012, interim parenting orders were made by Principal Registrar Fillipello with the effect that the father spent time with the child for eight hours spread over three visits per week. Orders were also made requiring the mother to take safety measures in her home in relation to the dog.
Since the making of the interim orders, the father asserts that the mother has “engineered” the time that he has spent with the child to prevent him from being able to demonstrate his capacity to care for the child.
In August 2012, consent orders were made with the effect that the father would spend 18 hours per week with the child spread over three days. This arrangement did not include overnight time.
At the time of the final hearing, the father was spending time with the child on three days per week as follows:
a)8.30 am until 1.00 pm on Wednesdays
b)3.45 pm until 6.45 pm on Thursdays and
c)8.30 am until 1.00 pm on Saturdays.

The orders sought

With respect to parenting matters, the father seeks orders to the following effect:
a)that the parties have equal shared parental responsibility for the child in relation to long-term issues including education, religious and cultural upbringing, his names and changes to his living arrangements
b)that the child lives with the mother, subject to times to be spent with the father
c)that the child spends increasing time with the father, with the periods of time extending in duration in six-months increments from the date of the orders, so that after the expiration of 18 months the child will live with the mother and the father for equal time in a week about arrangement
d)that the child spends time with the mother and father on special days and during the holiday closure at K Child Care Centre and that the above arrangements be suspended where necessary to allow for that
e)that changeovers occur at K Child Care Centre unless otherwise agreed in writing
f)that both parties be restrained by injunction from causing the child to attend upon any general practitioner other than Dr V, except in the case of emergency or with the other party's prior written consent
g)that both parties be restrained by injunction from causing the child to be assessed by any health professionals unless a referral has been made by Dr V or the paediatrician Dr S, except in the case of emergency or with the other party's prior written consent
h)that the parties consult with Mr L or Ms B for assistance with communicating and co-parenting
i)orders with respect to communication between the parties and the obligation of each to provide the other with relevant information concerning the child and
j)orders as to costs.
With respect to property matters, the father seeks orders to the following effect:
a)that orders be made to effect a division of the parties’ net assets in the proportions of 67.5 per cent to the father and 32.5 per cent to the mother
b)that each of the mother and the father retain items of personalty in their name, possession or control including their superannuation entitlements
c)that the mother retains any real estate registered in her name
d)that the former matrimonial home be sold (with the mother to pay the outgoings pending sale and with both parties to be restrained from further encumbering the home without prior written consent)
e)that the net proceeds of sale be distributed in the proportions of 67.5 per cent to the father and the balance to the mother
f)orders as to costs.
With respect to parenting matters, the mother seeks orders to the following effect:
a)that the mother has sole parental responsibility for making decisions about the child’s health and education (including medical treatment) save that, prior to making such decisions, she use her best endeavours to:
i)advise the father of any decision to be made in writing
ii)seek the father’s written response
iii)consider the father’s response prior to making the decision and
iv)advise the father of her ultimate decision in writing.
b)that the mother keeps the father informed about decisions made in the exercise of her sole parental responsibility by sending one email at least per calendar month
c)that the parties have equal shared parental responsibility for making decisions about all other long term issues in relation to the child
d)that Dr V acts as the child’s general practitioner and coordinate the child’s health care regime
e)that the child lives with the mother, subject to times to be spent with the father
f)that the child spends time with the father, with the periods of time extending in duration in three-month increments from the date of the orders such that, after the expiration of six months, the child’s time with the father will increase to, inter alia, alternate weekends of two nights (Friday to Sunday) and, after a further six months, it will increase to, inter alia, alternate weekends of three nights (Friday to Monday)
g)that the child spends time with the mother and father on special days including Father’s Day, Mother’s Day, birthdays and Christmas
h)that changeovers are to occur at LL Park in Suburb X with the father and maternal grandfather to facilitate changeovers at the commencement and end of the child’s time with the father
i)orders with respect to communication between the parties and the obligation of each to provide the other with relevant information concerning the child and
j)that the father must treat the child’s mother and the child’s medical professionals, carers and educators with respect and not verbally abuse, threaten or interrogate them
k)that the parties attend upon a child psychologist to communicate about the child’s needs and that such communications be kept confidential and not be disclosed by subpoena or otherwise to public authorities including the Family Court and the Federal Circuit Court
l)that for the purpose of the above order, the mother proposes three child psychologists from which the father selects one
m)that communication between the parties about the child may be by way of phone, text, internet (including wizards and Skype), direct speech and through the child psychologist or the child’s general practitioner and
n)that both parties attend and participate in mediation prior to commencing any kind of future litigation against each other.
As to financial matters, the mother seeks orders to the following effect:
a)that the mother pays to the father the sum of $140,000 by way of three instalments within 18 months from the date of these orders
b)that the father transfer to the mother all of his right, title and interest in the X property within six months from the date of these orders
c)that the mother shall discharge the mortgage to ANZ Bank registered as security against the title to the X property
d)that the mother be declared the sole legal and beneficial owner of the Y property
e)that except as otherwise provided for in the orders, the mother and father retain items of personalty in their name, possession or control including their superannuation entitlements and
f)that the father pays for one half of the costs of the services provided by Dr M on 2 and 3 September 2013 (with part of that sum being owed to Dr M and part being owed to the mother)
g)that the father pays to the mother $1,431 for mediation services provided by DD Management on 5 February 2012, together with all fees of Dr S for her attendance at the final hearing for cross-examination
h)that the mother pays all fees for her witnesses’ attendance at the hearing for cross-examination and
i)orders as to costs generally.
With respect to child support, the mother seeks orders to the following effect:
a)that an order for departure from the assessed rate of child support be made pursuant to the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) such that the father pays to the mother $398 per week by way of periodic child support until the first of the following occurs:
i)the happening of a terminating event or
ii)the child turns 18 years old or
iii)the child obtains full-time employment.
b)that pursuant to section 124 of the Assessment Act the father pays to the mother one half of the child’s expenses with respect to private school fees (at nominated schools), extra tuition, school books and materials, artistic activities, school and sports uniforms and sporting activities.

The evidence

The father relied on the following documents at the hearing:
a)Affidavit of Ms R filed on 8 February 2011
b)Amended Initiating Application filed on 28 February 2012
c)Affidavit of the father filed on 8 February 2013
d)Affidavit of Ms N filed on 11 February 2013
e)Affidavit of Mr R filed on 11 February 2013
f)Affidavit of Ms E filed on 28 February 2013
g)Affidavit of Dr S filed on 26 June 2013
h)Financial Statement filed on 27 June 2013
The mother relied on the following documents at the hearing:
a)Amended Response to Initiating Application filed on 11 January 2013
b)Affidavit of Ms O filed on 6 March 2013
c)Affidavit of Ms P filed on 6 March 2013
d)Affidavit of Ms G filed on 6 March 2013
e)Affidavit of the mother filed on 8 March 2013
f)Affidavit of Mr Bakker filed on 8 March 2013
g)Affidavit of Ms O filed 24 June 2013
h)Financial Statement filed on 26 June 2013
i)Affidavit of Dr V filed 20 August 2013
The mother and the father both gave oral evidence in addition to the documents on which they relied.
Additional witnesses called to give oral evidence were:
a)Mr R, the father’s brother
b)Mr Bakker, the mother’s father (“the maternal grandfather”), who lives with the mother and child at the X property
c)Ms G, a paediatric occupational therapist who has treated the child from her practice rooms
d)Dr S, a paediatrician who performed a developmental assessment on the child
e)Dr M (“the expert”), who was appointed as a Chapter 15 Expert under the Family Law Rules 2004 for the purpose of the parenting aspects of these proceedings and
f)Ms O, the child’s nanny.
The expert conducted interviews in person with the mother, the father, the child and the nanny, together and separately. In addition to those face-to-face interviews, the expert conducted interviews by telephone with the following people who are or have been involved in the child’s life:
a)Dr S
b)Ms P, a speech and language therapist who has provided treatment to the child
c)Ms G
d)Ms NC, a counsellor who had provided relationship counselling to the parties
e)Mr U, a psychologist who has treated the father
f)Ms Q, the Director of K Child Care Centre and
g)Mr RK, the child’s teacher.
The expert prepared a written report for these proceedings dated 7 March 2013 (“the expert report”) which was admitted into evidence.

Credit

The Court makes no general adverse findings as to the credit of either party.
Both the mother and father presented their evidence in a polite and co-operative manner and in the Court’s view they were both frank and truthful witnesses.

Parenting matters

The issues

The first significant parenting issue arises in relation to parental responsibility. The mother on the one hand seeks an order for equal shared parental responsibility other than in relation to matters of health and education, and the father seeks the usual order for equal shared parental responsibility.
There is a clear difference between the parents as to both the nature and extent of the child’s problems and the appropriate treatment of them. The father points to what he sees as an obsessive search by the mother for health-related practitioners who will agree with her view and a failure to accept any evidence which is contrary to her view, even to the point of removing the child from a day care centre where the child was progressing well. The mother says that she has always acted in the best interests of the child.
Each of the mother and the father seek orders which would see that the child spends more time with the father. Each of them is prepared to accept an approach to an increase in such time incrementally over a period of time.
The father wants to approach the matter on the basis that increments in time spent with him occur more rapidly than proposed by the mother. The mother takes a more cautious approach and says that increments in the time spent with the father should be taken over a longer period of time and be progressed with the ongoing supervision of psychologists, to provide a check that a proposed progression of time spent by the child with the father is in the child’s interests.
The expert, together with Dr S, saw no reason for the child not to start overnight stays with his father forthwith. It is noted however that the expert does not support at this time an approach to the matter which would see the child spending time with his parents in a week about arrangement, given this particular child’s vulnerabilities.
The task of the Court is finding on its assessment of the evidence before it a parenting programme that will best serve the interests of the child and help the parents to each make a contribution to the child’s attainment of his maximum potential, without adding unreasonably to the climate of conflict which has been a part of this child’s life to date.

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (Cth) (“the Act”).
In deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, the Court must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
The Court is required to ensure that any order it makes is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
The Court will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
The Court is required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are the Court states that it will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires the Court to consider the child spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC considerations

Primary considerations

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

There is no doubt that this child will benefit from having a meaningful relationship with each of his parents.
Each of the parties is intelligent and neither the expert nor Dr S faulted their commitment to their child or their capacity to parent.
The child loves each parent and the Court accepts that each parent loves the child. The Court is left with the impression that each parent wants to contribute to the child’s development of his maximum potential.
The significant task for the Court in seeking to achieve these desirable ends for the child is to find the means to pursue them without bringing harm to the child and in a manner that is consistent with what is in the child’s best interests.
(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 father has alleged that the child is in physical danger from the mother’s dog following two incidents in 2011 when the dog injured the child.
With respect to these incidents and the mother’s recollection of them, the expert wrote as follows in the expert report:
7. … Her statements were consistent with her affidavit material. She detailed [the dog’s] aggressive response when [the child] accidently fell on her hip. The mother experienced depersonalisation, feeling that the incident was “surreal” at the time of this shocking attack. She described the two puncture marks on [the child’s] neck as “horrific”, yet emphasised that [the dog] was generally a safe and much loved dog. This was inconsistent with the subsequent description by the father who identified multiple attacks in a manner consistent with his affidavit material.
The father’s view of the incidents involving the dog was described in the expert report as follows:
29. When asked about [the child’s] developmental vulnerabilities, the father referred to the physical attacks by the dog. His first priority had been to ensure [the child’s] safety by removing the dog. [The mother] did not respond in such a manner. Instead, she had focussed on allegations that [the father] was mentally ill. It was his view that [the mother] valued her dog more than [the child’s] safety. This had been an unresolvable issue. In his view, it was a certainty that the dog would attack again. Thus, it was necessary for the dog to be put down. He asserted that the dog was jealous of [the child] given the dog’s close relationship with [the mother]. He regarded the detailed behavioural analysis as being predicated on lies. The dog attack had been “the straw that broke the camel’s back”. It crystallised their unresolvable issues.

The dog still resides with the mother and the child at the X property. Based on the evidence of the arrangements put in place by the mother following these incidents, the Court is satisfied that the dog does not pose an unacceptable risk to the child’s safety while he is living in her care.
It is in the area of his health that the mother alleges that the child is in danger. Her view is that the child suffers from a number of difficulties stemming from what she and others describe as “Sensory Processing Disorder”. The father, the expert and Dr S do not agree with this particular diagnosis. The mother points out that, however it is described, the child does have problems. She asserts that the child has suffered from a lack of recognition and lack of participation in the amelioration of those problems by the father.
It is clear from the evidence of the expert and Dr S that there is a measure of agreement with the mother’s view that the child has some vulnerabilities. As to treatment, the mother has certainly pursued a number of professionals to treat with vigour what she describes as the disorder of the child.
The father asserts and there is concern on the part of the Court that the child has been subjected to assessments, treatments and other interventions in his life which are extensive and only to a limited extent necessary and otherwise potentially damaging. The pursuit of these assessments, therapies and interventions has been ongoing and to some extent unrelenting.
The consultations, assessments and therapies that the child has been exposed to have for the most part been unilaterally decided upon by the mother in an attempt to resolve what she says is the child’s reflux, regular illness, sleep problems, developmental delay and sensory processing disorder.
On the mother’s evidence, between the child’s birth and November 2011, medical and health interventions for the child included the following:
a)a consultation with a paediatrician for reflux and feeding issues
b)visits to at least four doctors at medical centres for infections, viruses and fevers
c)a consultation with an osteopath, for nasal congestion issues
d)a consultation with a naturopath for natural remedies for nasal and mucus infections and
e)consultations with a sleep whisperer who lived in the X property for several nights.
In 2012, they have included the following:
a)consultations with Ms P, a speech pathologist, since July 2012 (the Court notes that the child’s weekly speech pathology sessions now take place at child care)
b)a consultation with Dr BM at a Children’s Sleep Disorder Clinic in around May or June 2012
c)weekly sensory integration therapy sessions with Ms G, a paediatric occupational therapist, since September 2012
d)
an intensive treatment program which required the mother to do “joint compression” and “deep pressure treatments” on the child every

90 minutes for 17 days in September 2012 (the Court notes that the mother says she still performs three to five joint compression and deep pressure treatments on the child daily)
e)a consultation with Dr PP, a Paediatric Cardiologist at WW Hospital, in October 2012
f)three admissions to the WW Hospital Emergency Department in 2012
g)visits with the mother to medical doctors on “many occasions” when the child has had viral or other infections and medical needs and
h)at least five visits between March and July 2013 to Dr V, who performed a series of tests on the child (including blood, urine, hair tissue and stool analysis).
The Court notes that the mother makes a complaint about the child’s attendance upon Dr S, a paediatrician who performed a Griffiths Development Assessment on the child in June 2013, which was arranged by the father.
Too much vigour for the nature of the child’s problems would seem to be the conclusion of both the expert and Dr S. It was the view of the expert that the child has been questioned and examined to a point where it is time to halt this invasive and inquisitorial conduct.
Dr S, following the Griffiths Development Assessment which she performed on the child in June 2013 noted as follows in her report (annexure C to the affidavit of Dr Sutton filed on 26 June 2013):
[The child] is progressing very well with his development at 3 years and 2 months. He is a boy with normal intelligence, and he does not have an Autism Spectrum Disorder, nor any signs of any pervasive developmental disorder. His behaviour with me was age appropriate. [The child] needs to continue Speech Therapy to help with his articulation. His fine motor skills are basically sound, and would benefit from practice at Day Care, and some fun craft actives at home.
When asked in cross-examination about whether she was of the view that further testing should be carried out on the child, Dr S replied as follows:
Mr Batey:Do you, since you carried out your report, have any concerns that he should be further assessed or receive further treatment in respect of his development at that age?
Dr S:Well, first of all, you can’t do another developmental assessment within six months, because it’s not valid. So, he can’t have one – he couldn’t have one anyhow before June – before December, having had one in June. Secondly, my usual management for a child who’s forming in the average rank of abilities and has just got, what I saw, some minor issues with speech articulation and a little bit of immaturity with his fine motor skills, would be to let things run for a while, having speech and occupational therapy and then, if the day care teachers are concerned that there are more developmental issues, I would talk to them in another six months. And then, if it was thought that it would be worthwhile to do another assessment, then, in fact, for a child like [T], I would actually then wait until he was over four and organise a cognitive assessment, which is going to give you a much better picture of whether he has any special needs going into the pre-school year.
The expert appears to agree that continuing with speech therapy and perhaps some occupational therapy, particularly to facilitate the development of fine motor skills, would be sensible for this child. When asked in cross-examination if, in his view, occupational therapy throughout 2012 had been of benefit to the child, the expert responded as follows:
Mr Blackah: So would you agree that the occupational therapy that he was receiving in November of 2012 was beneficial to him?
The Expert:I would say it was likely to have been beneficial. As has already identified, one of the difficulties in identifying the particular nature of why a child is improving in such circumstances is difficult. It may well have been related to the paediatric occupational therapy intervention. It may have been related to other factors such as his developmental maturity, such as his experience in being used to the environment at [K Child Care Centre] and his general experience in life – in dealing with peers.
It is clear that the father supports the proposition that language is at the root of the child’s problems. The father has and continues to support speech therapy for the child.
In the Court’s view, the constant assessments and interventions with respect to this child stemming from unilateral decisions of the mother must cease. The father has to be offered in a timely and appropriate fashion input into the decision-making process for such decisions and, if agreed, the father must have the opportunity to be involved in them.
In order to avoid the continuation of the present situation, the father proposes that future assessments, therapies or consultations with respect to the child should not be undertaken without the approval of Dr V (or such other practitioner as the parties may agree) and Dr S (or such other specialist as the parties may agree).
The child will be in continuing danger if the parties do not ameliorate their conflict in relation to this issue and other matters. There are some signs that the process of this litigation may have brought to the parties a realisation that there needs to be a change in the way they react to each other.
The Court takes into account with concern the need, as yet not fulfilled, for this child to have co-operative parents if he is to avoid the dangers of an ongoing climate of conflict between the people to whom he is most closely attached. The question for the Court is: “Has the situation reached the point where, as the mother seems to think, that can only be achieved by shutting out the father from important decisions that parental responsibility requires to be made with regards to the child’s health and education?” Clearly such an order is one which the Court would not make lightly.
This child needs co-operative parents with each of them supporting him in the attainment of his maximum potential. Co-operative parenting requires

co-operative decision making and the Court does not take the view that these parties have exhausted the means by which that can be achieved. That said, however, they will each be required to behave differently to the way in which they have thus far behaved.
The expert discussed the past conflict between the parties but in his view the matter had not got to the stage where the parties could not share responsibility for the child’s future development. The mother concedes in any event that the father should share parental responsibility in areas other than health and education. Whilst her proposal for shared parental responsibility might be limited in scope, it is clear that she sees the level of communication between the parties as not impairing co-operation in relation to at least some matters.
The father has used infelicitous language and expressed frustration in ways not thought desirable. The incidents have been few in number and, once the cloud of this dispute lifts and the parties have the benefit of the Court’s determination, it is unlikely that in fact they will recur.
The mother has been provocative in making unilateral decisions in relation to the child and in setting at nought the view of the father on those decisions. It is small wonder that there has been an element of frustration in the father. Whilst the mother protests some attempts at communication, it seems to the Court that they were not adequately pursued by her.
The father has proposed communication between the parties through a website called “Family Wizard”. The mother’s submission is sarcastic of this proposal and says that all it does is point to the failure in their communication aliunde. The expert expressed the view that it was a proposition which ought to be explored. Such a methodology is seen by the Court as one which would only apply until the parties could otherwise communicate successfully.
Whilst the Court notes the history of conflict between the parties and the potential danger to the child in its continuation, it is of the view that the mother and father will be able to recognise the pitfalls for their child in the continuation of that conflict and apply themselves to avoiding it in the future.
In order to assist the parties in coming to this realisation and improving their capacity to co-parent as soon as possible, the Court will provide in its orders for a means of communication and the assistance of a consultant psychologist in this field.
As the dust of this battle flies away and the parties have an opportunity for mature reflection, it is hoped that they will recognise that angst and hubris have nothing to do with the welfare of their child, who needs to see his parents communicating at least in a polite and businesslike fashion. These parties also need to acknowledge the right that their child has to love and respect each of them and to be proud to be a child of both of them.

Additional considerations

(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

The child is too young to express a wish which would have any decisive or even significantly influential weight. He nevertheless is observed by the experts as having a normal relationship with each of his parents.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The expert and Dr S spoke of the normal relationship between the child and each of his parents.
It is clear that the mother, together with the Ms O, has been the primary carer of the child, at least since the parties’ separation. It is noted that the father makes no submission by way of criticism of the relationship between the child and his mother, his extended maternal family and Ms O.
The child demonstrates no adverse concern about the father and indeed has an apparently normal relationship with him. The mother has submitted that the child has a significant attachment to the father. Reports of the child care staff have not made mention of any difficulty or distress experienced by the child when with his father.
The child has a strong relationship and bond with Ms O, who appears to love and care for the child very much. The expert, following his interview with Ms O and his observations of her interactions with the child, reported as follows:
62. She spoke in an enthusiastic and loving manner regarding [the child], who had been like her own child.
63. She provided a history of his developmental difficulties, including sleep problems, disorganisation, lack of focus, agitation, repetitive movements and hyper-arousal, consistent with the description by the mother. He had improved over time in response to his routine. She described the routine which had effectively been established.
64. She also identified that [the child] was extremely happy and enthusiastic when dropped off with his father. She stated: “He absolutely loves his Dad.”
The child also appears to have an appropriate relationship with his maternal grandfather, who has lived with the mother and child each year since 2006 for periods of two to six months. He is part of the mother’s household at present and he assists from time to time with supervising the child and accompanies the child and the mother on outings. He also plays with the child and has in the past taken him to soccer training and prepared food for him.
The orders that the Court proposes to make will not have any adverse effect on the nature of the child’s relationship with either of his parents, or on his relationships with any of the significant persons in his life described above.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
It is submitted by the father that the mother has and, if left unchecked, will continue to seek to undermine the relationship between the child and himself. The father points to a number of historical events which he says bear out this assertion. The Court finds that there have been some events in which the mother has demonstrated an unjustified, overly anxious concern for the child in his father’s care and instances where she has failed to take into account the overall effect of her conduct on appropriate joint parental care.
Much of the mother’s anxiety appears to be a product of her conviction in relation to the child’s state of health and her apparent desire to seize upon any method to rectify what she sees as a disabling disorder in the child, even methods, it seems, that the expert and Dr S suggest might be of remote or no therapeutic value. In that regard, whilst some of the therapies the mother has arranged for the child are supported by them, the expert and Dr S do not in their independent analyses support her view entirely.
The Court formed the impression that the mother is a person of strong opinion who does not find a different view to her own readily acceptable. She, for example, has placed no weight on the report by the staff at K Child Care Centre that the child has improved. She did not accept the results of the Griffiths Assessment performed by Dr S.
The mother sought to rely on historical reports dated some ten months prior to the final stages of hearing, when more recent evidence showed that the child was improving, in part by reason of his speech therapy but also by reason of the simple process of growing up. The evidence of Dr S pointed to an expectation that, in a child of this child’s age, six months would bring about significant development.
The mother sought to attack the report of Dr S. She said that it was a product of misinformation given to her by the father. Mr Blackah cross-examined Dr S on behalf of the mother in relation to these asserted pieces of misinformation and asked whether they had any significant effect on her opinion or assessment. Dr S told the Court that the opinion she formed had not been vitiated by the information given by the father. Her assessment was based primarily on observation, with only some parts based on parent reporting.
Whilst acknowledging that the child has had some developmental problems, the Court finds that the mother is clearly intelligent and no doubt will, upon reflection, be relieved that her significant anxiety demonstrated historically and presently was and is not well founded. It is hoped that she will have a capacity to look at her conduct and behaviour in a critical manner, having regard to the insights provided by the expert and Dr S.
Overall the Court finds that the father has not sought to obstruct the relationship between the child and his mother and has confidence that he will continue with like behaviour in the future. The father ultimately seeks that the parents have an equal opportunity to foster a relationship with the child and, in due course, he seeks equal time with the child.
The mother does propose, albeit conditionally and restrictively, that the child has a continuing and meaningful relationship with his father. The Court also notes that when it has suited the mother in the past (namely, on two occasions when she was overseas) she has allowed the father to fulfil the role of primary carer for the child.
The mother points to a number of attempts made by her to assist the father in spending time with the child and says that this demonstrates her desire for the child to have a good relationship with his father. She gave some examples of where, in her view, those attempts failed without fault on her part. The Court notes that the father has not taken every opportunity for further time with the child said to have been made available to him by the mother, however, the father gave an explanation as to some of those events. The father says of these offers that they were made to suit the convenience of the mother.
The Court finds that the mother has sought to impose some restrictions on the father’s contact with the child and has failed to comply with some orders of the Court as to time spent by the child with the father, probably motivated in large part by an anxiety for the child which, on the evidence, was not fully justified.
Clear orders of the Court as to the nature and extent of future contact will assist these parties to achieve, it hopes, the confidence required to have in time a more liberal and co-operative approach to parenting the child, each acknowledging in full measure the role and responsibility of the other.

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

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

It is asserted by the mother that the father has failed to recognise that his son has sleeping problems and failed to deal with them properly. Her evidence on that subject was detailed. It seems in the Court’s view clear that the child has had sleeping problems.
Each party acknowledges that the child has had sleeping problems but they appear now to be less chronic. Various techniques for dealing with this, including those sought out by the father, have been utilised or considered by the parties. The father asserts that he has always acted on sleep techniques recommended by experts.
The expert’s recommendation for overnight time with the father seems to indicate that the child’s sleeping problem is not one which in his view contraindicates that. Indeed, the expert recommended in his report that such overnight time commence some six months ago.
It appears to be a common view that stability is important for this child. The Court agrees with that view and adds that stability for the child in his relationships with his parents is more important than a change in routine. Indeed, the prospect of the child spending more time with the father was not seen by the expert or Dr S as something that was going to impact adversely on the child’s requirement for stability.
Routine may well be important but it is clearly the fact that in life routines will change and this child should not be kept in routines that are no longer necessary for him, simply for the purpose of pursuing “consistency”. In any event, the mother proposes changes to the child’s present routine by way of an extension of his time with the father.
The orders proposed by the mother do not in the Court’s view give rise to confidence that this child will within a desirably short time be able to escape the anxiety created by way of the mother’s perception of his need to have a limited relationship with his father.
In the Court’s view, a scheme needs to be put in place promptly which recognises that this child needs each of his parents to fulfil appropriately their responsibilities to him. That scheme has to be one which, recognising the history of the matter, moves at a pace consistent with that need but not so fast that it causes significant distress to the child or to the mother (and therefore the child). It should not be a scheme which allows the parties to be in any doubt as to the immediate future.
The expert saw no reason for the child not to begin overnight stays with his father forthwith. He agreed with Dr S that this child needs the continuing support of day care and the presence of his father in his life in a meaningful way. The expert saw no anxiety in the child separating from his mother and said that there would be no difficulty for him, over a period of time, coping with up to three days and nights away from the mother’s care.
As to how time increases in the child’s time with the father should proceed, the Court notes the evidence of the expert given in cross-examination:
Mr Blackah: Doctor, despite everything, one thing these two do seem to be able to agree about is that [the child] does enjoy a meaningful relationship with his father and that that relationship should progress to overnight and school holiday time at some point, but the issue is how and when. Do you have any suggestions for us about that?
The Expert:I previously made – made a statement that – that that should be a very gradual change... Certainly it would be appropriate now, I would suggest, at this stage, to proceed to an overnight perhaps on the Saturday, given that he is having contact on Saturday during the day already and that that has been in place for a significant period of time and that [the child] is now over the age of three. To progress beyond that, as I have indicated before, what one wants to occur is for that to be progressing well and if that’s going well, to establish that over a couple of months and then … progressing to the first overnight – first overnight stay, if that was going well, I would establish that. In this circumstance where there have been problems with emotional regulation and behaviour and sleep, one would want that to be established for a significant period of time, for at least several months or even six months, before then progressing to two nights, and again, for that to be established for a further six months before progressing beyond that.
The Court finds that a continuing limitation in the amount of time the child spends with the father could well operate to the child’s detriment. The expert observed in relation to the relationship between the child and his father that the child would experience “negative consequences” if the father’s involvement in his life was limited to the current day-time only arrangement.
With respect to the child’s day care arrangements, the mother unilaterally

(and while this matter was part heard) removed the child from his day care at K Child Care Centre. It was her proposition that the child would benefit from a smaller facility with smaller numbers in class. She also expressed some concern as to the location of K Child Care Centre and changeovers occurring there in the evenings. Notwithstanding that this might be her motivation, she did not enrol the child in any further day care. Her action was no doubt a reflection of her continuing anxiety; an anxiety not supported by the independent experts and their support of there being stability in the child’s life. Certainly this was a change in routine for the child which the mother initiated.
It is also noted that the removal of the child from K Child Care Centre was at a time when reports of the day care operators were made available to the parties of the positive progress of the child; a matter which the mother might have seen as detrimental to her case. Moreover, it was a demonstration of what has been wrong in this relationship – namely, an apparently fixed belief in the mother that she has the capacity and right to make unilateral decisions in relation to the child. This is an attitude which needs to be corrected.
The father opposes the move and seeks that the child be returned to K Child Care Centre. There is little doubt that the mother’s conduct would frustrate a loving and caring father who wishes to participate in the important decisions to be made in his child’s life. Such a measure of frustration is neither good for the father nor, more particularly, for the child, and it does nothing to produce an appropriate relationship between the parties.
The mother has to come to the realisation that the child is not an item of her property to deal with as she will, but a human being with rights which entitle him to the support and nurture of each of his parents. The Court expresses its concern that the mother demonstrates by her conduct (to be fair, in the context of hard fought litigation) little understanding of the ongoing needs of the child in this regard.
In any event, the effect of the removal has been to withdraw from the child the day-care and friends and acquaintances with whom he is socialising. It is not apparent that the child has been in fact attending any other day care centre regularly and frequently notwithstanding the evident importance of such attendance in the mind of the expert and Dr S.
The Court proposes that the child will attend day care at such day care facility as the parties agree or, in default of such agreement, at K Child Care Centre commencing 21 days from the date of this judgment.
(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
Relationship breakdown and litigation rarely brings out the best in people and this case is no exception. There has been difficulty between these parents in effective communication. It needs to be rectified. There is no doubt that they can communicate given the will and the need to do so. That is one of the reasons that the Court is not inclined to deal favourably with the mother’s approach for sole decision making capacity on any aspect of parental responsibility. There will be communication between these parents if there is a need for it; there is less likely to be communication if there is no need for it.
In the circumstances of this case, the Court will require of the parties effective communication on important issues. It is the hope that in time each of them will develop an appropriate ease with communication, however, it will also provide a means of submitting any dispute to mediation.
Given the current difficulties between the parties, it seems in the interests of this child that those occasions which have in the past been likely to be the scene of dispute between the mother and the father should be minimised. To do this, the Court intends to order that changeovers take place where possible at the child’s day care, preschool or school, so that the opportunities for the child to be exposed to any dispute between the parents are reduced.
In addition, where alternative arrangements need to be made, the Court notes the offer of help from Ms O, whom both parents respect, and whose help the father is prepared to accept to facilitate changeovers. If Ms O is not available, the receiving parent will be able to nominate an alternative person to collect the child on his or her behalf.
The present geographical location of the parents is not an obstacle to the child spending time with each parent.
Subject to the above matters, the Court finds that there is no unusual expense, difficulty or circumstance which might affect the child’s opportunity to maintain personal relations and direct contact with both of his parents.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The Court is troubled by the mother’s constant and anxious search for other explanations of the behaviour of her child and therapies for her child. That constant search could, it seems, be detrimental to him. The Court is also concerned about the mother’s inappropriate attempts to seek to justify unilateral decision making without thought of the potential detriment to the child’s relationship with his father. The expert said of the mother’s beliefs concerning the child’s condition that they were pervasive.
It is the mother’s case that the father does not accept the extent of the child’s emotional and psychological needs and denies the child’s difficulties to a point where it is jeopardising his proper treatment. The father and the mother now have the benefit of the expert report, and other expert evidence in this matter, and are aware of the parameters of the child’s problems and needs for assistance. The Court accepts that the father, being a loving father, will assist the child as required to undertake such treatment or therapies as are suggested by medical advisors and approved health professionals.
Apart from those matters, the mother appears to be a loving mother and the father a loving father. The father does not seek to remove the child from the mother’s care, although he does wish to share in the child’s care.
Ms O has a significant and it appears ongoing relationship with and attachment to the child. She has been a constant in his life. There is no doubt that she is able to provide for the emotional and intellectual needs of the child when he is in her care and that both parents trust her to do so.
(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
The mother was born in northern Europe and the father was born in the

United Kingdom. The mother is looking in due course for the child to become familiar with the mother’s native language and, later, for the child to enjoy a trip to Europe. The father says it is too soon to consider those matters but that they will be reconsidered by him once the parents have developed a co-operative parenting relationship.
In the Court’s view, until there is a greater level of trust demonstrated by the parties, it would be inappropriate to make those decisions in relation to travel overseas. When the parties reach a future parenting arrangement which is not characterised by unilateral decision making, travel decisions might be made.
This child has experienced difficulties in his development which have seen him lag somewhat behind his age cohort in some respects. He is, however, reported to be progressing well now. A significant part of that progress appears to have been helped by occupational therapy and speech therapy. In addition and importantly, the child has attained greater age and maturity.
It is the clear view of the expert and Dr S that the speech therapy and occupational therapy should for a time continue, but there appears to be no need for the other therapies that are sought by the mother, such as chiropractic therapy. It appears that the child for his development needs ongoing attendance at day care and a sound relationship with each of his mother and father.
Having a sound relationship with his father, apart from the benefits which would undoubtedly otherwise accrue to the child, will provide him with a significant male role model.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This subsection does not apply.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is suggested by the mother that the father, by failing to accept the nature and extent of the child’s problems as she sees them, and by rejecting the validity of the various treatments chosen by her to assist the child in overcoming those problems, has not demonstrated the right attitude to the child and to the responsibilities of parenthood.
The father points to the part that he has actively played in dealing with some of the child’s problems and points to the evidence of the expert and Dr S as to his behaviour being appropriate, measured and reasonable. The Court having considered all of the evidence accepts that this is so.
In the Court’s view, each of the parties has demonstrated an understanding of parental responsibility, except to the extent specified above.
(j)any family violence involving the child or a member of the child’s family
Apart from the matters otherwise referred to as to infelicitous language there is no evidence of any family violence.
(k)If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter
There is no such order in place.
(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 always preferable to make an order which is least likely to lead to the institution of further proceedings.
The level of dispute in this case has thus far been high but, notwithstanding that, some progress towards a more realistic view of the situation has been demonstrated by the mother. The father might say and the Court might agree that there has not been enough progress, however, there has been progress and the Court hopes that when the history of this litigation is contemplated by each of the parties they will recognise that the solution to their problems is to be found in communication and personal resolution, perhaps with the help of a mediator if necessary.
The Court intends that the orders it makes will operate until the child has at least completed primary school.
The orders proposed by the mother signposting the need to assess progress from time to time before a regime of time with the father is changed do not in the Court’s view give it confidence that they are other than a strong incentive to further dispute. As such, those proposals will be rejected.
It is suggested by the mother that an order for the allocation of parental responsibility with respect to health and education as proposed by her would reduce the possibility of further litigation. It is the Court’s experience that the attitude of parties is more likely to be the cause of further litigation, and that an order like the one proposed by the mother will more likely lead to dispute and a reopening of the matter than that which the Court proposes to make.
The Court is not confident that the mother would not use the power conferred by the order that she proposed to limit the father’s time with the child.
(m)any other fact or circumstance that the court thinks is relevant
The expert gave a recommendation in his March 2013 report as to the commencement of contact. Some six months has passed since then. The child has grown older and he has progressed in his development.
The expert provided oral evidence on the final day of evidence at the hearing (set out above) as to how contact with the father should proceed, and the Court will take that more recent evidence into account.
The Court will also take into account the conduct of the mother since the report as being relevant to its decision and inclining it towards the orders proposed by the father.

Section 60CC(4) & (4A)

The Court has already touched on a number of matters which fall for consideration under this heading and will not repeat those matters.

Balancing all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons, the Court concludes that the orders it proposes to make will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in a child’s best interests for their parents to have equal shared parental responsibility.
The presumption does not apply where there has been family violence. In this case there has been some family violence, that is, with respect to the physical attacks on the child by the mother’s dog. The evidence of those incidents was discussed earlier and the Court has found that the dog does not pose an unacceptable risk to the child. Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child. The Court in this case so finds.
The Act further provides in subsection 61DA(4) that the presumption of equal shared parental responsibility may be rebutted if it is determined to be not in the child’s best interests. In this case, the Court finds that there is no reason for the presumption not to apply and neither parent seeks complete sole parental responsibility. The mother however proposes that she have sole parental authority about limited issues only. The Court does not propose to so order.

The mother asserts that contributions to the date of hearing should be assessed as 60 per cent to the mother and 40 per cent to the father.
All in all, the Court finds that the contributions of the parties to the acquisition, conservation and improvement of the property of the parties or either of them, including contributions made to the welfare of the family and to the child aliunde, should be assessed in the ratio of 55 per cent to the father and 45 per cent to the mother to the date of final hearing.

Section 90SM(4)(d)

The Court is required under section 90SM(4)(d) to consider the effect that any proposed order will have upon the earning capacity of either party to the

de facto relationship.
It is the Court’s view that neither the mother’s nor the father’s earning capacity will be significantly adversely affected by the orders it proposes to make in relation to the alteration of their property interests. Each of the parties has or is in the process of acquiring significant qualifications. Each has been employable and there is no reason to assume on the evidence that they will not continue to be so.

Section 90SF(3) considerations

The father is aged 51 years and is in good health. The mother is aged 41 years and is also in good health.
Each of the parties bears no doubt the burden of the unresolved nature of their dispute and its attendant frustrations. It is hoped that once this matter has passed they will be able to accept the result for the benefit of their child and live with it in a way which will result in the disappearance of those frustrations.
Each of the parties has an income-earning capacity as a professional academic. The mother’s present income is higher than that of the father, he having disclosed a net weekly salary of $2,586 and the mother having disclosed a net weekly salary of $3,137.
The father’s is employed as an academic at A University on a semester-to-semester contract. He is studying for a PhD. The mother has a PhD and is a professional academic at Z University. She is also a researcher and has, it seems, the capacity to earn income from consultancy work through the entity MK Pty Limited.
The maternal grandfather resides with the mother and it appears that he brings money in an unquantified sum from Europe into her household.
Neither party has a duty to support any other person, other than themselves and the child. There is no evidence that the maternal grandfather imposes a legal obligation on the mother for his support and, in the absence of evidence of his financial position, the extent of that duty if it did exist is not possible to assess.
On the evidence it appears that neither party has an entitlement to a pension, allowance or benefit under the law of the Commonwealth, an Australian State or Territory, or of another country.
The mother and father have the superannuation entitlements set out above.
The mother has an investment property with equity of about $100,000.
The standard of living the parties enjoyed during the relationship is described as modest. The Court would say that the lifestyle enjoyed by the parties was not an expensive lifestyle.
The Court has considered the effect of the orders it proposes to make altering the parties’ interests in property and is not aware that they will have an effect on the ability of any creditors of the parties to recover a debt.
The parties cohabited for approximately two years. It is not claimed by either party that they made any significant contribution to the other party’s income, earning capacity, property and financial resources.
Each of the parties wishes to continue in their role as parent of the child. The father wishes to take on a greater share of the parenting role and this has been reflected in the orders that the Court will make.
The father does not reside with any other person. The mother resides with the maternal grandfather. The mother did not in her evidence provide details of the financial circumstances of her cohabitation with the maternal grandfather, however, her father revealed in his oral evidence that he contributes to the outgoings of the household.
Neither party seeks a superannuation splitting order.
Under section 90SF(3)(r), the Court takes into account the following matters:
a)post separation the father received the sum of $17,500 from the sale proceeds of the Toyota motor vehicle and
b)since separation the mother has enjoyed continuing occupancy of the X property, whereas the father has been obliged to pay for rental accommodation.
The father proposes that the Court take the following additional matters into account under section 90SF(3)(r):
a)the mother’s failure to sell negatively geared property investments. The Court will not take this matter into account. The family received the tax benefit applicable to its expenses which fell short of the income from the investments. There was no application to the Court for any such order at any time for their realisation.
b)following separation the mother, it is said by the father, procured his removal from the team of consultants working for KE Research Business. The father had earned annually some $60,000 through that work previously. Beyond taking into account the differential earnings of the parties, the Court does not intend to take this matter into account here.

Conclusion on section 90SF(3)

For all the reasons referred to above, and in circumstances where there are presently differential earnings between the parties, the Court concludes that a further adjustment of 5 per cent should be made in favour of the father.

Overall division of assets

The above determination will see the mother receive 40 per cent of the parties’ assets and the father receive 60 per cent thereof.

Just and equitable

The value of the parties’ net asset pool was found by the Court to be $603,023.
The division of assets based on the above will see the mother receive $241,209 worth of net assets and the father receive $361,814 worth of net assets.
In the circumstances of this case, the Court determines that result to be just and equitable.

The property Orders to be made

It seems that in order to do justice as between the parties the property at Suburb X may need to be sold. Since, however, the mother has indicated a desire to purchase the property and continue residing there with the child, the Court will make an Order which will give her a short period of time within which she will have the opportunity to purchase the father's interest in the property for an appropriate amount. In default of her so doing, there will be orders for sale of the X property.
Neither party proposed to the Court how their nominal interests in household contents should be treated. As such, no orders will be made in relation to altering interests in household contents.
Neither party seeks a superannuation splitting order. In accordance with the Orders set out above, the father will retain $73,954 in superannuation entitlements already in his name and the mother will likewise retain $192,040 in superannuation entitlements.
The Court proposes to make orders which will give effect to the following property distribution, noting that the mother will be required to pay a cash settlement sum to the father to effect the overall division of assets in the event that she retains the X property.
The mother will receive:

Assets	($)
X property	1,450,000
Y Property	E 985,000
Toyota motor vehicle	11,000
Superannuation: Unisuper	192,040
Total assets (incl. superannuation)	$2,638,040
Liabilities
Mortgage over X property	1,132,534
Mortgage over Y property	913,437
Her income tax liability for 2012	E 18,000
Cash settlement payment to the father	332,860
Total liabilities	$2,396,831
Net assets (incl. superannuation)	$241,209

The father will receive:

Assets	($)
Superannuation: Care Super	38,670
Superannuation : Unisuper	35,284
Cash settlement payment from the mother	332,860
Total assets (incl. superannuation)	$406,814
Liabilities
His income tax liabilities for 2011 and 2012	E 45,000
Total liabilities	$45,000
Net assets (incl. superannuation)	$361,814

In the event that the X property must be sold because the mother is unable to comply with Orders otherwise made, the Court will order an alternate division of property and alternate orders must become operative to ensure that justice is done between these parties.
The mother will receive by way of distribution in the event and only in the event that the X property is sold:

Assets	($)
40% share of net sale proceeds of X property following discharge of the mortgage (but not including sale and other costs which are unknown)	E 126,986
Y Property	E 985,000
Toyota motor vehicle	11,000
Superannuation: Unisuper	192,040
Total assets (incl. superannuation)	$1,315,026
Liabilities
Mortgage over Y property	913,437
Her income tax liability for 2012	E 18,000
Cash settlement payment to the father	142,380
Total liabilities	$1,073,817
Net assets (incl. superannuation)	$241,209

The father will receive by way of distribution in the event and only in the event that the X property is sold:

Assets	($)
60% share of net sale proceeds of X property following discharge of the mortgage (but not including sale and other costs which are unknown)	E 190,480
Superannuation: Care Super	38,670
Superannuation : Unisuper	35,284
Cash settlement payment from the mother	142,380
Total assets (incl. superannuation)	$406,814
Liabilities
His income tax liabilities for 2011 and 2012	E 45,000
Total liabilities	$45,000
Net assets (incl. superannuation)	$361,814

Child support

With respect to child support, the mother seeks orders to the following effect:
a)that the periodic child support payable by the father be varied by way of a departure order under the Assessment Act from the date of the orders until 29 March 2028 (when the child turns 18 years old)
b)that the periodic child support payable by the father be set at $398 per week for the above period and, in addition, that the father pays the mother child support for the period from 10 May 2013 until the date of the orders at that rate or at an amount determined by the Court
c)that pursuant to section 124 of the Assessment Act the father pay one half of following expenses for the child as and when they fall due:
i)school fees for the child’s attendance at AA Primary School in Suburb X or GG School in Suburb C or such other private school in Sydney’s eastern suburbs
ii)extra school tuition
iii)school textbooks and materials
iv)artistic activities
v)school and sports clothing/uniforms and
vi)sporting teams and extra-curricular activities and
d)that the father pays all outstanding fees owed to K Child Care Centre accrued in the period from 1 January 2013 until the date of the orders.

Child support departure

The Court will firstly consider the mother’s application for an order for departure from the administrative assessment of child support payable by the father.
Before making an order for a departure under the Assessment Act, the Court must be satisfied that it has jurisdiction to do so. The Full Court in Saberton & Saberton [2013] FamCAFC 89 (“Saberton”) set out the steps necessary to establish the Court’s jurisdiction to make a child support departure order and stated as follows at [12]:
As is not in doubt, before an application for a departure order of the type sought by the wife can be made, the steps referred to in s 116(1)(a), (aa), (ab) or (c) of the Assessment Act must be complied with, or, having been satisfied that the provisions of s 116(1)(b) are met, a Court exercising jurisdiction under the Assessment Act may permit the application to proceed.
Section 116(1)(b) reads:
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
…
(b) both of the following apply:
(i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case …
The Court is satisfied that the provisions of section 116(b) have been met and that it has jurisdiction under that section to hear the mother’s application for child support departure. Before making any order for departure, however, the Court must be satisfied of matters set out in section 117 of the Assessment Act.
In Saberton at [58]–[60] the Full Court set out the steps that are required to be considered under section 117 and made the following further comments at [63]:
It is well established by authority that in determining and granting an application for an order for departure from an administrative assessment, the Court must follow the three stage approach provided by the legislation and, when a non-periodic order is sought, the two steps in accordance with Part 7 Division 5 of the Assessment Act. Reference need only be made to cases such as Gyselman & Gyselman (1992)
FLC 92-279 and those which followed to establish these points.
The three-step process referred to in the above passage is set out clearly in section 117(1) of the Assessment Act and was also expressed by the Full Court in Gyselman & Gyselman (1992) FLC 92-279 (“Gyselman”).
The three steps can be summarised as follows:
a)it must be found that in the special circumstances of the case one or more of the grounds for departure listed in section 117(2) exists
b)the Court must then find that it would be “just and equitable” to make a departure order in accordance with the provisions of section 117(4) and
c)the Court must also find that it is “otherwise proper” to make a departure order in accordance with the provisions of section 117(5).
It should be noted that each of the grounds set out in section 117(2) is prefaced by the terms “in the special circumstances of the case”.
It was noted by the Full Court in Saberton at [59] that, when making an order for departure, the Court must provide reasons as to why the circumstances of the case are special which go beyond a mere recital of those words. In Gyselman, the Full Court considered what the terms “in the special circumstance of the case” mean and said as follows:
Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (p. 77,897), Kay J, adopting the view in Philippe and Philippe (1978) 90-433 at p. 77,202 in a difference context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
The mother did not identify the ground or grounds in section 117(2) of the Assessment Act on which her case is brought. To this end, the father submits as follows:
The mother does not rely on, nor has she identified the special circumstances, which in turn must be limited to one of the grounds in s.117(2) of the Assessment Act. It is respectfully submitted that absent these basic requirements for a Departure Order, the absence of which precludes the Applicant father from knowing what case he must meet, to proceed to a determination of the mother’s departure application would be to deny the applicant father procedural fairness.
In her submissions, the mother sought to rely on material annexed to an affidavit filed on 12 August 2013 that was not admitted into evidence and which therefore is not read. She also sought to rely on documentation from the Child Support Agency (“the CSA”) that was tendered and marked Exhibit 29 on the final day of the hearing. Neither of the parties was cross-examined on that material and, as submitted by the father, the CSA file merely provides a history of the parties’ dealings with the CSA.
The Court finds that the circumstances of this case do not satisfy the “special circumstances” requirement in section 117(2) and that, therefore, no ground for departure can be made out. In reaching that conclusion, the Court has considered factors which may have been grounds for a departure, however, it does not consider that any circumstances of this case attract the description of being sufficiently “special”, “peculiar” or “out of the ordinary” to warrant the Court’s interference with the administrative result arrived at by the CSA.
The mother’s assertions as to the special needs of the child are not to the extent that she asserts. The child is, according to the experts, maturing and developing. He needs some assistance with speech but the child’s progress and prognosis appears to be good.
It may be that the mother has to pay large mortgage repayments in the name of retaining the X property in order to achieve consistency for the child, but each of the parties is obliged to meet the reasonable expenses of the child only.
The mother in her submissions points to Exhibits 22 and 31 as evidence of the father’s reporting to the CSA that his income is “Nil”. There is in those exhibits a Notice of Decision from the CSA to the mother dated 25 July 2013 which states the following on page 2:
From 15 July 2013 to 25 October 2013 an annual rate of $1,269 based on an estimated income provided by Mr [Ralston] of $NIL and an adjusted taxable income amount of $148,230 for [Ms Bakker].
The father submits that his report to the CSA that his income was nil was lodgement by him of notice that he was unemployed during the semester break. The father, it is submitted, promptly notified CSA that he was rehired in July 2013. The Court also notes that the statement above indicates that the current assessment period is due to end within days.
There being an administrative assessment in place, the father has an obligation to keep the CSA informed of his income, as does the mother, so that an appropriate amount of periodic child support according to the administrative formula can be assessed.
The father’s income position seems to the Court to be relatively uncomplicated and the Court has accepted his evidence of what he earns. The Court also accepts the evidence of the mother’s income, which is greater than the father's. There is no evidence or suggestion that the father has hidden financial resources and, following the making of the parenting orders in this case, the child will be spending increasing time with the father, which will also require notification to the CSA.
Having not established that there are special circumstances and, in turn, that a ground for departure exists in this case, the mother has failed to satisfy the first step of the three-step process and the Court is unable to make the departure order which she seeks.

Non-periodic child support

The mother in her submissions did not address the Court on the particulars of her application for non-periodic child support by reference to the requirements of Part 7, Division 5 of the Assessment Act or, more particularly, the provisions of section 124.
With respect to that aspect of the mother’s child support application, the father submits that evidence in support of her application under section 124 is not before the Court in any form, meaning that the Court cannot find that it was just and equitable and otherwise proper for the Court to make the orders as sought.

The Court agrees with the father’s submission as to the lack of evidence before the Court in support of the mother’s application. It declines to make an order for the payment of unspecified school fees at unchosen schools, which the child may or may not attend at some time in the future. The Court is not aware of where the parties may be living at the time that the child is to attend school, and it is impractical to make the order at this time. Any such application can abide the event if there is disagreement on the issue.

I certify that the preceding two-hundred and sixty-six (266) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 17 October 2013.

Associate:

Date: 17 October 2013

[2013] FamCA 807

Key Legal Topics

Areas of Law

Family Law

Property Law

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