RORY & ASHCROFT

[2013] FamCA 262

FAMILY COURT OF AUSTRALIA

RORY & ASHCROFT [2013] FamCA 262

FAMILY LAW –  CHILDREN  – best interests of child – conflict between mother and father – turns on own facts.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 65DAC

APPLICANT: Mr Rory

RESPONDENT: Ms Ashcroft

FILE NUMBER: TVC 396 of 2008

DATE DELIVERED: 24 April 2013

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 31 January 2013; 1, 4 February 2013

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT:	Ms Mayes
SOLICITOR FOR THE RESPONDENT:	Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Fellows
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	McDonald Leong Lawyers

Orders

1. That all previous orders be discharged;

2. That the child K born … April 2008 live with the mother;

3. That the mother be allowed to relocate, with the child, to central coast town X in Queensland;

4. That the mother have sole parental responsibility for the child;

5. That the child will spend time with the father during each Queensland gazetted school holiday period being the first half in odd numbered years and the second half in even numbered years;

6. The first half of the Easter, June/July and September/October school holiday periods will commence at 9:00am on the first Saturday after the end of the school term and will cease at 4:00pm on the second Saturday after the end of the school term.  The second half of the Easter, June/July and September/October school holiday periods will commence at 9:00am on the second Saturday after the end of the school term and will cease at 4:00pm on the Saturday prior to the next school term commencing;

7. The first half of the Christmas school holiday periods will commence at 9:00am on the first Saturday after the end of the school term and will cease at 4:00pm on the fourth Saturday after the end of the school term.  The second half of the Christmas school holiday period will commence at 9:00am on the fourth Saturday after the end of the school term and will cease at 4:00pm on the Saturday prior to the next school year commencing;

8. Until the child is of an age when the airlines will allow unaccompanied travel, handover for the child will occur as follows:-

   (a)at the commencement of the father’s time with the child, handover shall occur at the R Children’s Contact Centre, with the father to arrange and pay for his and the child’s travel back to V; and

   (b)at the end of the father’s time with the child, handover shall occur at the V Children’s Contact Centre, with the mother to arrange and pay for her and the child’s travel back to town X. 

9. Upon the child becoming an age whereby the airlines will allow unaccompanied travel, handover for the child will occur as follows:-

   (a)at the commencement of the father’s time with the child, the mother to deliver the child to the R airport with the father to collect the child at the V airport at the completion of the journey.  The father to arrange and pay for the child’s flights and to provide the mother with no less than 7 days notice of the flight details;

   (b)at the end of the father’s time with the child, the father to deliver the child to the V airport with the mother to collect the child at the R airport at the completion of the journey.  The mother to arrange and pay for the child’s flights and to provide the father with no less than 7 days notice of the flight details.

10. That both parties will contact the V and R Children’s Contact Centres within 7 days of the date of these orders to arrange the intake procedure.

11. That otherwise all extant applications in this matter be dismissed, and the matter be removed from the list of cases awaiting finalisation.

12. Pursuant to s.65DA(2) and s.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 hereto and these particulars are included in these orders.

13. That the Independent Children’s Lawyer be forthwith discharged.

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

FAMILY COURT OF AUSTRALIA

FILE NUMBER: TVC396/2008

Mr Rory

Applicant

And

Ms Ashcroft

Respondent

REASONS FOR JUDGMENT

A.       INTRODUCTION

1. When the trial of this matter commenced before me, it was to resolve competing parenting applications between the applicant father and the respondent mother in relation to their child, K (“the child”).  However, during the course of the trial, whilst the father was still giving his evidence-in-chief, he sought leave to discontinue his application, which leave was granted.  The father acknowledged that he understood that his discontinuance would not put an end to the proceedings, as there would remain on foot the mother’s Amended Response to the Initiating Application, which in essence sought orders that the child live with her, that she be permitted to relocate to coastal town X, and that the father spend one half of school holidays with the child.

2. The Independent Children’s Lawyer strongly supported the orders sought by the mother.

B.       THE FACTS

1. The father was born in 1964, and accordingly as at the date of these reasons, is 49 years of age.  The mother was born in 1979, and accordingly as at the date of these reasons is 33 years of age.  The parties began to cohabit in April 2007.  Both the mother and the father brought into the relationship a child from a previous relationship: The father’s child, T, was born in 1993; the mother’s child, C, was born in 2000.  The parties finally separated after about seven months cohabitation in November 2007.

2. In April 2008, the child K was born.  On 22 April the father filed an application seeking DNA testing to see whether or not K was his child.  That testing established the father’s paternity.  Ultimately, on 12 November 2008 interim consent orders were entered into which provided for equal shared parental responsibility in relation to the child, that he live with the mother, and spend time with the father every Wednesday afternoon until Thursday morning.  At the time of those orders, the mother was living in town P, and the father was living in coastal city V.

3. In September 2009, there were final consent orders made providing that the parties have equal shared parental responsibility for the child, that he live with the mother, and that he spend time with the father for five hours on Saturday, overnight on Wednesday and for a period on Christmas day.

4. Following an episode in which the father withheld the child from the mother, which necessitated the mother bringing contravention proceedings, on 4 April 2010 the father filed a fresh application for final parenting orders.  On 7 December 2010 Bell J made final orders by consent, providing for equal joint parental responsibility in relation to the child, that he live with the mother, and that he spend time with the father each alternate weekend from 5:00pm on Friday until 5:00pm Sunday in V, together with Wednesday night in town A, and time on Christmas day.  As at the date of those orders, the mother was living in the B region, on the Queensland north east coast.

5. In her trial affidavit filed 11 January 2013, the mother related a long history of conflict between the parties, marked by aggressive and controlling behaviour on the part of the father.  This commenced during the time of cohabitation and unfortunately continued after separation.  For instance, at para.8 of her trial affidavit, dealing with the time of cohabitation, the mother said:-

   [The father] denied paternity and became very aggressive and controlling demanding to know where I was and what I was doing all the time.  He accused me of having affairs and picked arguments with me all the time about every little thing, such as what we were eating, or something not being clean enough.

   He started demeaning me in front of [C] calling me useless, and a fat slob.

6. The mother’s trial affidavit details that the father’s conduct continued post separation.  For instance at handovers, or during telephone calls with the child, she says that he would say things such as “you are a bad parent, you don’t care properly for [the child], you are just a fat slob” and “you are not gonna live to see [the child’s] next birthday.”

7. In respect of a later period the mother’s affidavit provided:-

   On every occasion that [the father] telephoned to speak to [the child] he would interrogate me in a threatening manner about how I was caring for [the child] (ie what did he eat for breakfast, what food did I take to childcare for him, what I was doing about potty training, what I was doing about his language development).  It was very wearing.  It would always end up with him shouting at me saying that he did not think that I was good enough to care for [the child].

   [The father] did not approve of the childcare centre that I enrolled [the child] in, so that I could go back to work.  He undertook a campaign of harassment against the childcare centre…He made eighteen notifications to the Department of Child Safety over eighteen months.  They were notifications such as I had handed [the child] over in a dirty nappy, I was not giving [the child] his medication to spite [the father], and I would not communicate with [the father].  All of the notifications were unsubstantiated.  The manager at McDonalds where we were doing handovers asked us to stop using the restaurant because of [the father] abusive behaviour disturbing other customers.

8. In June 2010, during a handover of the child, the father assaulted the mother in relation to which he was charged, convicted and fined.

9. At the end of 2011, the mother moved to live in V.  In para.8 of her trial affidavit, the mother said that “I relocated to [V] to try to reduce the conflict and the pressure of constant travelling.”  Unfortunately, far from reducing the conflict, it appeared to intensify it, in that it enabled the father to more closely monitor and harass the mother.  In para.8 of her affidavit filed 4 June 2012 the mother detailed occasions when the father would drive past the mother’s house, or follow her home after she picked up the child, and more worryingly, on several occasions when he drove past her, made a slicing motion across his throat.

10. There then commenced a serious dispute between the parties as to the day care that was appropriate for the child.  The mother attempted to enrol the child into the L School of Early Learning, but it appears as though the father wanted him to attend S Children’s Centre.  On 8 March 2012 the parties attended mediation intended to resolve the dispute, not only in relation to that issue, but also issues more generally.  It did not succeed.  At para.8 of the mother’s trial affidavit, the mother recalled “[the father] was so abusive at this mediation, that I began feeling worn down with the effort of trying to do what [the father] wanted all the time.  Things have to be done as he wants them or he explodes.”  On 11 March 2012 the mother gave the child into care of the father on a permanent basis.  At para.8 of her trial affidavit, the mother explained this decision in the following terms:-

    I became so fearful of [the child] witnessing the continued conflict that, in a fit of peak (sic), I handed [the child] to [the father] to live with him.  I assumed that [the father] would allow me to see [the child] at the same times that he had been seeing him, in other words we would just reverse roles; we had previously discussed this at mediation.

11. However that reversal of roles did not occur, and there then followed a period of some five months in which the mother had no contact with the child, other than a chance meeting at a shopping centre.

12. On 3 April 2012 the father filed the application which initiated the proceedings presently before me, in which he sought an order that the child lives with him.  On 20 July 2012 a Family Report was prepared by Ms. M, a Senior Family Consultant.  At paras 37 and following, she reported as follows:-

    37.With regard to the events leading up to her giving [the child] to [the father] to care for, [the mother] reported that her decision to give [the child] to his father was a result of the stress of attempting to negotiate decision making for [the child], including the choice of a daycare centre.  [The mother] reported that “whatever she suggested” [the father] would disagree with.  [The mother] described the mediation at the Family Relationship Centre as very difficult with no resolution.  [The mother] said she felt that both she and [the child] were suffering as a result of [the father’s] “aggression”.

38.At the time [the mother] gave [the child] to [the father], she wrote [the father] a note saying:  The items you see here are [the child’s].  Pleas(sic) take them for him as you now have [the child] in your care.  [Mother’s name].  PS If you are looking for someone to blame look in the mirror.  The way you treat me is now over [the child] is yours to take care of.  You will see how hard it is to raise a child, Unlike you with your standover tactics I will step aside.  I will not threaten or tell you just how badly you are doing  [The child] will be your responsibility.  Mummy will always love you my darling [K] more than the sun, moon and stars.

39.With regard to her proposal for [the child’s] living arrangements, [the mother] initially said she planned to “move to [X] at the end of the year to live in the family home.  I can’t see any other option”.  She explained further that “living in [V], it is too hard, we are just existing, I can’t see [the child]..  We live day to day”.  “Neither of us is happy with the way life is going” (referring to C and herself). 

40.[The mother] said that in fact she did want [the child] to live with her again but her greatest concern was that [the father] would continue with his “aggression, conflict in communication and mind games”.  The report writer asked if [the mother] would consider living in [V] and for [the child] to live in a shared arrangement between the two households again if the orders provided for the changeovers to occur at the daycare centre so the parents would not have to have face to face contact.  [The mother] said she thought this would work as long as she did not have to have contact with [the father]. 

41.[The mother] reported that [the child’s] behaviour had changed during the months after they moved to [V]:  “He started to swear, he would call me names, he would not listen to direction, he would not settle down at night, he would come out and tell me to turn it off (the TV)”.  [The mother] was distressed when she reported [the child] would say:  “I will kill you.  Put you in jail.  I am going to live with my father”.

42.When asked why she thought [the child’s] behaviour had changed, [the mother] said “[The father] has a partner now.  [The father] has wanted [the child] to live with him.  [The child] has been told that I am not [the child’s] mother I am a carer”. 

43.With regard to [the father’s] partner, [the mother] reported:  “I don’t have an issue but I want [the child] to be happy.  But I don’t want to be replaced.” 

44.[The mother] explained that [the father’s] behaviour towards her had been a constant intrusion into her privacy. [The mother] viewed the parents should keep their private lives separate:  “You ([the father]) have your private life.  I have mine.  He ([the father]) always wanted to know who was living in my house”.

45.[The mother] said she was “missing [the child].  It hurts inside.  But if [C] and I have to give up [the child] to give him consistency then so be it”.  At the same time [the mother] said:  “I don’t want [the child] to think that Mummy took the easy way out”, that is, by giving [the child] to his father then leaving town to escape from [the father’s] aggression.

46.When asked about current family violence, [the mother] said:  “It has continued as before.  It got worse after we moved to [V]”.  [The mother] referred to the mediation the parents had attended at Centacare.  “We had a three hour session but only discussed childcare.  He would not agree with anything I suggested”. 

47.With regard to [the father’s] behaviour towards her, [the mother] said: “I don’t think he will ever be able to stay away”.  [The mother] explained further:  “I live in a dead end road.  [The father] came into the street and did a U-turn.  He had no reason to be in that street”.  I rarely drive down the road [the father] lives.  I have no reason to”. 

48.[The mother] reported she had received “several text messages” from [the father] after [the child] went to live with his father, but “none recently”. 

49.When asked about the father’s allegation that she had mental health problems, [the mother] said “I am paranoid. He is hanging around. I have had tyres slashed on my vehicle”.  [The mother] further explained: “I feel that I am shutting down from society.  I am not happy.  But I have friends and I am working”. 

1. At the time of that Family Report, the mother’s Response to the father’s Application conceded that the child should live with the father, however on 20 July 2012, she amended that Response to seek her present proposed orders, namely that she have sole parental responsibility in relation to the child, that he live with her at X and spend only holiday time with the father.

2. On 24 July 2012 Kent J made interim orders by consent that the child spend time with the mother on Saturdays.  A further order was made by Kent J following an interim hearing in August 2012, which effectively reversed the previous position, and ordered that the mother and father have equal shared parental responsibility for the child, that he live with the mother, and spend time with the father each alternate weekend and each Wednesday night.  That is the regime of orders which prevailed at the time of trial.

C.       PARENTAL RESPONSIBILITY

1. The first question for my consideration is whether the mother should have sole parental responsibility for the child. Section 61DA(1) of the Family Law Act 1975 imposes a presumption that it is in the best interests of the child for its parents to have equal shared parental responsibility, save that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who was then a member of that person’s family, or has engaged in family violence.  Further, s 61DA(4) provides that “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.”

2. The effect of an order for shared parental responsibility is set out in s 65DAC.  Importantly, subsection (2) provides “the order is taken to require the decision to be made jointly by those persons.”  It follows then that each parent would not retain an individual right to make the decision: if it cannot be made jointly, then it cannot be made, and may ultimately need to be resolved by further litigation.

3. Further, s 65DAC(3) provides that in making the decision jointly, each of the parents is required to consult the other in relation to the decision to be made about the issue in question, and to make a genuine effort to come to a joint decision about it.

4. It is plain that the father’s conduct toward the mother has been, and continues to be, belittling, aggressive, controlling and humiliating.  I do not think that there is any prospect that these parties could jointly decide any matter relating to the child.  Any consultation between them as contemplated by s 65DAC(3) would almost inevitably just see the perpetration of their conflict.  Further, in a Family Report dated 16 December 2012 prepared by Dr D a Child Adult and Family Psychiatrist under the heading “possible outcomes” at para 6 he reported:-

   With regard to parental responsibility I would support that the mother has full parental responsibility as the conflict over health and education decisions is very destabilising for the child.  It is better for one primary caring parent to have that role...

1. I accept that evidence. 

2. Section 60CA mandates that “in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”  Section 60CC prescribes the matters a Court must take into account in determining what is in a child’s best interests.

3. Turning firstly the primary considerations identified in s 60CC(2), I accept that, in relation to the concept of parental responsibility, the exercise of such a right by the father may contribute to the maintenance of a meaningful relationship between him and the child, which arguably may be of some benefit to the child.  However the other primary consideration – namely the need to protect the child from psychical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence – is of great concern here, given the long and extraordinary history of conflict between the parents in relation to issues relating to him, and Dr D’s evidence that that conflict is very destabilising for the child.  Whilst this trial, by virtue of the proceedings having commenced prior to 7 June 2012, is not governed by s 60CC(2A) nonetheless I give great weight to the need to protect the child from conflict.

4. Turning to the additional considerations set out in s 60CC(3), in relation to the issue of parental responsibility, I have considered all of the matters listed therein, and identify that those additional considerations listed in paras (c), (f), (i), (j) and (l) are relevant to the matter I am presently considering.  Whilst I accept that the father has taken every opportunity to participate in decision making in relation to the child, and to spend time and communicate with him, this has almost without exception been attended by conflict between him and the mother.  Particularly I am concerned that the father does not appear to understand that this conflict has an emotional toll upon the child.  This blindness on the part of the father not only makes that participation, on occasion, unhelpful, but it reflects adversely upon his attitude to the responsibilities of parenthood.  The history of conflict and violence between the mother and the father is of great concern to me, and as I have previously indicated, in my view they would be incapable of agreeing, or even embarking upon a process likely to lead to agreement, in relation to decisions relating to the child’s care, welfare and development.  It is my view nigh inevitable that if there were not sole parental responsibility ordered in favour of the mother, further litigation would likely ensue.

5. Balancing all of these factors, and giving great weight to the need to protect the child from the conflict between his parents, I am of the view that it would not be in the best interests of the child for his parents to have equal shared parental responsibility, but rather that should rest with the mother solely.

D.       SHOULD THE CHILD LIVE WITH THE MOTHER

1. Because the orders I propose to make will not involve equal shared parental responsibility for the child, s 65DAA is not invoked.  The question then becomes whether it is in the child’s best interests that he live with the mother, or whether some other order should be made.

2. Apart from the occasion in 2012 when the mother gave the care of the child to the father, the child has always lived with her.  I am satisfied that the reason why the mother put the child into the father’s care was because she perceived that was the only way that she could stop the ongoing harassment and conflict and that she perceived that it was in the child’s best interests that there be a cessation to the conflict.

3. Dr. D reported as follows:-

   I formed the view that [the mother] has a lot of strengths with regard to being a parent.  I believe that she is very child focussed.  I believe that she cares a great deal about her two children.  She presents as somebody who is trying very hard to do the best by her children but also trying to do the best by [the father].  She has found this extremely difficult to manage.  She perhaps has some vulnerability because of instability in her early life and some fragility to her self-esteem.  However she does have a lot of strengths and she has functioned and worked most of her life and supported herself and her children.  At times she has needed extra support from her family.  There has been some conflict between her and her mother at times and she is somewhat estranged from her sibling because of some family issues.  In general her relationships appear to be solid.  I formed the view that she was not an unacceptable risk to the children.  I formed the view that she was a capable caring parent and that she could continue to care for the children.  The dilemma for her is how to cope and negotiate with [the father] such as that this does not destabilise her.

4. I accept this evidence.

5. By virtue of ss 60CA and 60CC, I am obliged to consider the primary and additional considerations specified in those provisions in order to determine whether it is in the child’s best interests that he live with the mother.

6. Turning to the primary considerations, whilst I accept that it would be of benefit to the child to have a meaningful relationship with both his father and his mother, the history of conflict between them is of such an intensity, duration and frequency, and has such negative effect upon the child, that the need to protect him from the fallout from that conflict must be given great weight.

7. As to the additional considerations, again I have considered all those listed in s 60CC(3).  As well as those I discussed in relation to parental responsibility, I also identify those specified in s 60CC(3)(b) and (d) as being relevant to the question of whether the child should live with the mother.  As to those additional considerations I discussed in relation to parental responsibility, I repeat the observations which I made at para 24 of these reasons.

8. As to the further additional considerations I have identified as being relevant to the child’s living arrangements, I accept that he appears to have a good relationship with each of his parents, but with the exception of five months in 2012, has always lived with his mother.

9. I accept that the father has always sought to take the opportunity to participate in decisions about major long-term issues in relation to the child, to spend time with him and to communicate with him, and that for five months in 2012, the mother did not do so, but I accept her explanation for why she acted as she did, and repeat that whilst the father has always sought to be involved with the child, this has frequently been attended by conflict even on occasion to the point of assault, and the father appears to have no insight into that or its effect on the child.

10. As to the likely effect of any change in the child’s circumstances, I note that the regime of orders that has generally prevailed in relation to the child has seen him live with his mother, and spend time with his father.

11. Weighing all of these considerations, I find that it is in the child’s best interests for him to live with his mother.

E.RELOCATION TO THE QUEENSLAND CENTRAL COAST

1. The mother seeks to relocate to town X in order that she may have the support of her parents who live there.  Other than when she returned to live in V in north east Queensland at the end of 2011, since the child’s birth, the mother has not lived in V.  She only returned under the mistaken view that it would minimise or reduce the conflict between her and the father.  Plainly that was wrong; it increased it.

2. At para.10 of her affidavit filed 11 January 2013, the mother said:-

   I seek permission to relocate with [the child] to [X] where I intend to live with my parents, where I will have a strong support network and where I can escape the constant persecution from [the father] as his behaviour is irrational, aggressive and abusive.

3. As to this, Dr D reported:-

   Should [the mother] move to [X] I believe that she would be closer to support.  She would have more extended family and including her younger half siblings and her mother and step father and there would be more of a supportive network for [the child] and [C].  However I haven’t met with the maternal grandmother and so I don’t have her exact perspective on [the mother] moving there.

4. Later he continued:-

   The disadvantage of moving to [X] of course is that this would dislocate [the child] from [the father].  The advantages of moving are that this would provide [the child] and [the mother] with a lot of family support.

5. Turning to the statutorily mandated process of determining whether relocation to the central coast is in the child’s best interests, in my view, whilst the psychical distance between X and V may, by virtue of the inevitable reduction in the frequency of time that the child will spend with the father, have some negative impact upon the father/son relationship, there is likely to be a marked reduction in the opportunity for conflict between the mother and father, and that will protect him from the prospect of psychological harm from being subjected to the conflict between his parents.  That benefit in my view outweighs any reduction in the meaningfulness of the relationship between the child and the father.

6. Turning then to the additional considerations, I have considered all of those listed in s 60CC(3), and identify the additional considerations in s 60CC(3)(b), (c), (d), (e), (f), (i), (j), (l) and (m) as relevant to determining whether the mother’s relocation to X is in the child’s best interests.  In that regard, to the extent that I have adverted to those additional considerations previously in these reasons in relation to other parenting orders, I repeat and adopt that discussion here.  However in relation to additional consideration (d), I should also say that I acknowledge that the increased psychical distance between the child and his father means that he will spend less time with him, or at least the frequency of time which he spends with his father will be reduced.  As to additional consideration (e), whilst relocation to X will inevitably make the prospect of the child spending weekday and weekend time with his father practically impossible, and so will impinge upon his right to maintain personal relations and direct contact with his father on a regular basis, the removal of, or at least the substantial reduction in, conflict between his parents outweighs that disadvantage of relocation.

7. As to additional consideration (m), in my view another fact or circumstance that is relevant here is the mother’s happiness, because that is likely to improve her life and in doing so improve her capacity to be a good parent for the child.

8. In my view it is in the child’s interest that the mother be as happy and comfortable as circumstances permit.  She has no family support in V, and continues to have the conflict arising from ongoing contact with the father at changeover, pursuant to the interim orders presently in force.  In my view the benefits of a supportive environment of the mother, will also be of benefit to the child, and militate in favour of the mother being permitted to relocate to town X.

9. Weighing the primary considerations and additional considerations, in my view they strongly tell in favour of the mother being permitted to relocate to X, and I will so order.

F.        TIME WITH THE FATHER

1. The distance between X and V, and the financial circumstances of the parties, will not permit the child to spend overnight time with the father during the week, and will make weekend contact impracticable.  The only viable proposal is for holiday contact.  The mother proposes that the child spend one half of all Queensland gazetted school holiday periods with the father, and that seems appropriate.  This is not a case where anyone suggests that the child should have no contact with his father, but rather that their current conflict associated with changeovers is intolerable and not in his best interests.

2. Turning to the primary considerations in s 60CC(2) I identify that it is strongly in the child’s interest to maintain a meaningful relationship with both of his parents, including his father.  Whilst in relation to the other parenting orders I have considered, I have identified and given great weight to the need to protect the child from exposure to the conflict between his parents, spending holiday time with his father is unlikely to generate much conflict, and to the extent that it may do so, is outweighed by the benefit of the child maintaining a meaningful relationship with the father.

3. Turning to the additional considerations in s 60CC(3) I identify those contained in sub-paragraphs (b), (c), (d), (e), (f), (i), (j) and (l) as being relevant.  In that regard I adopt my previous discussion in relation to those considerations.

4. Weighing those matters, I consider that the child already has an established relationship with his father, and one that will not be unduly damaged by the time he spends with him in the future being solely during school holidays.  An order that he spend one half of the school holidays with his father is therefore in his best interests in the circumstances.

5. The only remaining issue is where the changeover should occur.  The mother proposes that until the child is old enough to fly unaccompanied, it be at the Children’s Contact Centres in R or V.  Once the child can fly unaccompanied, the changeover will be at either V or R airport.  The father has no submissions in relation to that regime of order, and certainly does not present any alternative.  I therefore propose to order in accordance with the mother’s proposal.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 24 April 2013.

Associate: 

Date:  24 April 2013