Russell & Russell & Anor - [2009] FamCA 28

FAMILY COURT OF AUSTRALIA

RUSSELL & RUSSELL AND ANOR

[2009] FamCA 28

FAMILY LAW – CHILDREN – with whom child should live - where parents seek their child lives with them – where grandparent seeks child should continue living with her – whether principle established in Rice v Miller (1993) FLC 92-415 against the notion of a presumption of favour of parents operates post 1 July 2006 Part VII amendments to the Family Law Act - where parents submit amendments elevate parents above others – where grandmother submits the Full Court in Dennet and Norman [2007] Fam CA 57 says there is no preference in favour of parents - Dennet and Norman was heard before those amendments took effect – there is no statutorily introduced a presumption in favour of parents – views – risk assessment – emotional and psychological well being – separation of siblings – child to live primarily with parents - parental responsibility – presumption rebutted - as a result of s 61C parental responsibility is conferred upon each of the parents – no order for parental responsibility made

Family Law Act 1975 (Cth) ss 60B(1), 60CC, 60CC(3), 61B, 61C, 61DA, 61DB, 62(G), 64A, 64(1)(a), 64B(2), 65DAA, 68L
Div 12A, Pt VII
Family Law Rules 2004 r 15.5
Family Law Reform Act 1995 ss 60B, 60B(2)(a), 61B, 61C, 65E, 68F, Pt VII

Kennedy and Kennedy (1993) FLC 92-400
Goode and Goode (2006) FLC 93-286
Dennet and Norman [2007] Fam CA 57
Rice v Miller (1993) FLC 92-415
West and Anor and West [2007] Fam CA 546
Connor & Bourke & Anor [2008] FMCAfam 69
Davis v Davis & Anor (2007) 38 Fam LR 671
Kay, Jasper and Green [2007] Fam CA 1646
Storie v Storie (1945) 80 CLR 597
Lovell v Lovell (1950) 81 CLR 513
Gronow v Gronow (1979) 144 CLR 513
Rice v Miller (1993) FLC 92-415

B v B: Family Law Reform Act (1997) FLC 92-755
Re Evelyn (1998) FLC 92-807
D & F [2001] Fam CA 382
R v R Children’s Wishes (2000) FLC 93-000
Mazorksi v Albright (2007) Fam LR 516
H v W (1995) FLC 92-598

APPLICANT:

Mrs Russell

RESPONDENTS:

Ms R Russell and Mr Cass

FILE NUMBER:

(P)NCC

2007

DATE DELIVERED:

22 January 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATES:

1-4 & 28-30 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hazelwood

SOLICITOR FOR THE APPLICANT:

McMahon Broadhurst Glynn

COUNSEL FOR THE RESPONDENT:

Mr Davies

SOLICITOR FOR THE RESPONDENT:

MacLean & Curtis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr O’Connor

Orders

That all prior orders are discharged.
Commencing 24 January 2009 the child … born … May 2001 (“the child”) shall live with the mother and the father.
That the child shall spend time with the maternal grandmother as follows:
(a)commencing 4 February 2009 during school term from after school Wednesday until the commencement of school the following Monday and each alternate week thereafter;
(b)commencing the beginning of Term 2 in 2009 Order 3(a) is varied so that the maternal grandmother’s time commences on Thursday after school in lieu of Wednesday;
(c)commencing Term 3 in 2009 Order 3(b) is varied so that the maternal grandmother’s time commences on Friday after school in lieu of Thursday;
(d)commencing Term 1 in 2010 Orders 3(a),(b) and (c) are discharged;
(e)commencing Term 1 in 2010 during school term from after school Friday until the commencement of school Monday, on the second weekend after school term commences and each third weekend thereafter;
(f)commencing Term 1 in 2010 during school term from after school until the commencement of school the following day on two separate occasions between each third weekend visit with the maternal grandmother and in the event the parties are unable to agree on the days these visits shall occur they shall occur on the second and third Monday in each period;
(g)commencing Term 1 in 2011 Order 3(f) is varied to one occasion between each third weekend visit with the maternal grandmother and in the event the parties are unable to agree on the days these visits shall occur they shall occur on the second Monday in each period;
(h)for one week in each school holiday period on dates agreed between the parties and failing agreement commencing at 12.00 noon on the second Saturday and ending at 12 noon the following Saturday in each school holiday period;
(i)from 4.00 pm until 6.00 pm on the child’s birthday if the birthday falls on a school day, otherwise from 2.00 pm until 6.00 pm;
(j)from 2.00 pm until 6.00 pm on Christmas Day and Easter Sunday each year; and
(k)at such other times as the parties agree.
That the mother and maternal grandmother shall provide each other with a telephone number upon which each may telephone the child no more frequently than twice during each period the child is in the other’s care.
That the parties are to advise each other within 7 days of any change to their residential address and contact telephone numbers.
The parties are restrained from denigrating the other or any member of their household or family in the presence of the child and shall use their best endeavours to prevent any other person from doing so.
Until the end of Term 4 in 2009 the parents are restrained from withdrawing the child from W Public School.
During school term the maternal grandmother shall collect the child from school at the beginning of her time with the child and return her to the same place.
During school holidays the mother and/or father shall deliver the child to the maternal grandmother’s home at the beginning her time with the child and the maternal grandmother shall return the child to the parent’s home at the end of her time with the child.
The mother shall authorise the child’s school to provide the maternal grandmother, at her request and expense, copies of the child’s school reports and school photograph.
The father is restrained from using illegal drugs whilst the child is in his care.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.
That all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC12 of 2007

MRS RUSSELL

Applicant

And

MS R RUSSELL and MR CASS

Respondents

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

introduction

These proceedings concern the future living arrangements of a child born in May 2001. Primarily the child lives with Mrs Russell who is her maternal grandmother. The maternal grandmother says the child has lived with her virtually all of the child’s life. In late 2006 the child’s parents obtained an ex-parte recovery order from a Local Court. After the order was implemented the maternal grandmother started these proceedings. While the maternal grandmother agrees the child should continue to spend significant time with her parents, she contends the child’s long term interests require that she remains in her primary care. The maternal grandmother contends, for reasons which will be expanded upon later, the parents have demonstrated an immature approach to their parental responsibilities and in their care the child’s needs are unlikely to be adequately met.
The respondents, Ms R Russell and Mr Cass are the child’s parents. They live together and want their daughter returned. They contend the maternal grandmother overstates the extent of her role in the child’s life. Other than a period in late 2001, the parents say from birth until mid 2006, the child predominantly lived with them. Through a combination of their work commitments and the maternal grandmother’s desire to care for the child, during this period the child was regularly cared for by her grandmother. By August 2006 the parents were living in D. The child remained with her grandmother. The parent’s planned that once they set up a home or when the school year finished, the child would join them.
By early December 2006, the parents discerned that the maternal grandmother would not voluntarily return the child. Accordingly on 21 December 2006 on the parents’ ex-parte application, T Local Court granted them a recovery order. Later that day NSW police officers collected the child from her maternal grandmother and delivered her to her parents.
By order of this court on 5 February 2007 the child returned to the maternal grandmother’s care with arrangements established for regular visits with her parents. These have gradually extended and during school terms she now lives with them five nights each fortnight.
The parents reject the maternal grandmother’s contention that they are unable to adequately care for the child and emphasise they are an intact family and that the child’s brother lives with them. While they are grateful to the maternal grandmother for her assistance with their daughter they submit that her opposition to the child’s return is based on her and not the child’s needs. Simply put the parents submit that the Court should respect the child’s desire to live with her immediate family and recognise the benefits to her of so doing.

The hearing

This hearing was conducted pursuant to Div 12A of Pt VII of the Family Law Act 1975.
The parties and Independent Children’s Lawyer settled the issues for this hearing which are summarised below.
·The child’s views and the weight which they should be afforded.
·Who has been the child’s primary carer?
·The extent and impact of the parent’s drug use.
·The parties willingness and ability to promote the child’s relationships with the other party.
·The extent to which the parents have demonstrated a responsible attitude towards their parental responsibilities.
·The parents capacity to meet the child’s physical, emotional and intellectual needs.
·Whether the maternal grandmother’s age or health compromises her ability to meet the child’s needs.
·The impact upon the sibling relationship of living in different homes.
·Whether there are difficulties in the child’s relationships with her parents.
·Whether the child has a stronger relationship with the maternal grandmother than with her parents.
·The effect upon the child of changing her living arrangements.
During opening addresses it was agreed that the mother and maternal grandmother have a poor relationship. The maternal grandmother abandoned her earlier issue that in her parents care the child would be exposed to an unacceptable risk of family violence.
At the final stage of the hearing the maternal relied upon the following:
·Her affidavits filed 2 February 2007, 29 March 2007, 7 June 2007 and 20 June 2008 and her oral testimony.
·Affidavit of Ms T filed 12 January 2007 and her oral testimony.
·Affidavit of Mr U filed 15 January 2007, 27 September 2007 and 20 June 2008 and his oral testimony.
·Affidavits of Mr JL filed 23 January 2007, 27 September 2007 and his oral testimony.
·Affidavit of Mr R filed 23 January 2007 and his oral testimony.
·Affidavit of Ms M Russell filed 30 January 2007 and her oral testimony.
·Affidavit of Ms T filed 12 January 2007 and her oral testimony.
·Affidavit of Mr S Russell filed 3 October 2007.
The parents relied upon the following:
·Affidavits of the mother filed 21 December 2006, 24 January 2007, 31 January 2007 and 24 June 2008 and her oral testimony.
·Affidavits of the father filed 21 December 2006, sworn 11 January 2007, filed 24 January 2007 and 24 June 2008 and his oral testimony.
·Affidavits of Mr R Cass filed 24 January 2007 and 24 June 2008 and his oral testimony.
The Independent Children’s Lawyer relied upon affidavits from:
·Ms J sworn 30 March 2007. This witness was not cross examined and I accept her evidence.
·His affidavits filed 7 June 2007, 30 June 2007, 25 March 2008 and 26 March 2008. This evidence was received without challenge and is accepted.
Mr C is the Family Consultant appointed to the case. Mr C is a psychologist, who, by reference to his qualifications and professional experience is well qualified for the tasks required of him in these proceedings. Mr C prepared three reports. This number of reports is unusual but necessary for a number of reasons all of which are revealed in the reports.
The Family Consultant’s third report is dated 2 June 2008[1]. In this report, Mr C explains the child has a clear view that she would like to live with her parents. He opines “ .. it is extremely likely that as [the child] continues to develop psychologically, she will increasingly question why she is not living with her parents.” Long term the Family Consultant considers the child will be troubled if unable to live with her parents and almost inevitably will question whether this is because of something negative about herself. In his opinion this will almost certainly have negative connotations for the child’s future emotional health and harm her ability to form and maintain healthy relationships. In circumstances where he assesses the parents as having made considerable lifestyle improvements since 2006, he recommends the child should incrementally change from living predominantly with her maternal grandmother to living predominantly with her parents.
[1] Exhibit “M”
By way of final recommendation Mr C recommends:
55.    That should the Court find that the parents are able to adequately meet [the child’s] future needs and that it is in [the child’s] best interest that she lives with her parents in the future, that a transition should occur so that [the child] changes from living predominantly with her maternal grandmother to be living predominantly with her parents. It is further recommended that this transition occur without any abrupt changes. For example, [the child] might spend six nights each fortnight with her parents for term three of 2008 and then eight nights each fortnight with her parents in term four of 2008 and then nine nights each fortnight in term one of 2009 and ten nights each fortnight in term two of 2009. It is further recommended that [the child] spend two or three nights each fortnight and at least five nights each school holidays with her maternal grandmother at least until [the child] is aged 10 years. It is further recommended that [the child] spend considerable time with the maternal grandmother at least fortnightly and each school holidays after she is aged 10 years.
56.    That if [the child] is to live predominantly with her parents, then all parties have joint equal shared parental decision making responsibility for long term decisions regarding [the child] until June 2009 and that from this time the parents have sole parental decision making responsibility for long term decision making for [the child].
57.    That should the Court find that the parents are NOT able to adequately meet [the child’s] future needs and that it is NOT in [the child’s] best interest that she lives with her parents in the future, then [the child] should continue living predominantly with her maternal grandmother and continue to spend substantial and significant time with her parents as appropriate.
58.    That if [the child] is to live predominantly with the maternal grandmother, then the all parties have joint equal shared parental decision making responsibility for long term decisions regarding [the child].

59. That [the child] have liberal telephone and other non face to face communication with all parties and that all parties actively support and encourage [the child’s] positive and loving relationship with the other party.

60. That the parents obtain independent professional financial planning assistance from appropriate community based organisations (such as Anglican Counselling Service – Ph: 67624380, or Lifeline – Ph: 1800 808488).

61. That the mother and maternal grandmother engage with an appropriate community based organisation or counsellor for assistance with improving their future relationship with each other.

The Family Consultant was cross-examined at length. Cross-examination reinforced his detailed understanding of this families dynamics and the salient facts. Nothing significant turned upon factual misunderstandings. His evidence concerning his observations of and discussions with the parties and the child is particularly compelling. At the end of cross-examination the Family Consultant reaffirmed his opinion that the child’s best interests required that she lives with her parents and brother while maintaining close contact with her maternal grandmother. His evidence and recommendations warrant significant weight.
Because of the complex issues in this case, an Independent Children’s Lawyer was appointed to represent the child’s interests. At the end of the hearing, the Independent Children’s Lawyer presented a Minute of Order[2] which details the orders he submits are in the child’s best interests.
[2] Exhibit ‘H’
Summarised the Independent Children’s Lawyer proposes that the parties have equal shared parental responsibility and that the child divide her time equally between them. During school term it is proposed the child lives week about between the parties with changeovers occurring at school on Fridays. During school holidays the equal time arrangement would continue with changeovers occurring at the holiday mid point. The Independent Children’s Lawyer proposes regular telephone contact and variations to the child’s living arrangements so that she is able to spend identified special occasions in each home.
The parties and Family Consultant do not support the Independent Children’s Lawyer’s proposed orders.

Background facts

In this judgment statements of facts are findings of fact.
The applicant grandmother was born in November 1956. She is 52 years old.
In August 1979 the father, Mr Cass, was born. He is 29 years old.
Between 1979 and 1986 the maternal grandmother lived with the mother’s father, Mr SL.
In December 1980 Ms R Russell, the mother, was born. She is 28 years old.
In 1986 the maternal grandmother left Mr SL to take up a relationship with her current partner Mr U. Not long afterwards she and Mr SL entered into consent orders by which the maternal grandmother obtained custody of the children and their father was to have reasonable access. As it transpired the maternal grandmother did not encourage the mother’s relationship with her father and within a few weeks of their separation the mother’s contact with her father stopped. For his part the mother’s father was lax and responsibility for the loss of her relationship with him rests significantly, but far from exclusively, with him.
In August 1987 the maternal grandmother and her children joined Mr U in T.
The father’s mother died in 1993. His parents separated years earlier and as a consequence of his mother’s opposition to it, the father had little contact with his father from his parent’s separation until shortly before his mother’s death. Following his mother’s death the father moved in with his father. For both of them this was an emotionally difficult time. In the lead up to his mother’s death the father increased what was a pattern of occasional cannabis use to regular heavier drug use. In this period he tried amphetamines and heroin. The father’s drug use is a significant issue and it is a matter to which I will return.

On 17 February 1997 the father was convicted at T Local Court of possessing heroin for which he was fined $250.
On 22 September 1997 the father was convicted of mid range PCA for which he was fined $300 and disqualified from driving for 12 months. He was also convicted of driving an unregistered and uninsured vehicle for which he was fined $100 on each count.
On 10 February 1998 the father was convicted of cultivating a prohibited plant (cannabis) and assault. He was fined $330 on the first charge and $100 on the second.
On 19 October 1998 the father was convicted of driving whilst disqualified for which he was placed on a good behaviour bond.
On 23 September 1999 the father’s driver’s license issued.
On 12 February 2000 the father was charged with a speeding offence for which he was fined $181.
The mother moved out of her mother’s home in about March 2000. She moved in with her then boyfriend and the father.
In June 2000 the mother and father commenced their relationship.
In mid August 2000 the mother and father moved into his father’s home at T.
On 19 October 2000 the mother’s driver’s license was suspended.
During an argument with his father on 5 November 2000 the father threw a coffee cup which the paternal grandfather blocked with his forearm. The cup broke and the paternal grandfather required five stitches to the gash in his arm. At his request police took out an interim AVO against the father. For a brief period the parents moved out of the paternal grandfather’s home.
On 3 January 2001 the paternal grandfather, who was drunk, assaulted the mother. The mother was pregnant with the child. During the assault the paternal grandfather hit and punched the mother to the face and chest. The mother fled and called the police. As a result of the assault the mother sustained a small scratch under her chin, her jaw was sore and swollen and she suffered slight bruising to her stomach which was tender to touch. The mother persuaded police not to charge the paternal grandfather. The police served him with an interim Apprehended Violence Order containing the mandatory statutory restraints. Notwithstanding this incident the parents continued to live with the paternal grandfather.
On 22 February 2001 the father was charged with being an unlicensed driver.
In May 2001 the child was born.
Upon the child’s discharge from hospital she lived with her parents and paternal grandfather. The mother was primarily responsible for the child’s care. In the weeks after the child’s birth the mother unsuccessfully tried breast feeding her lactose intolerant baby. In response to the parent’s requests for advice the maternal grandmother suggested the child occasionally sleep overnight at her home. The idea being that the child’s parents could catch up on sleep and the maternal grandmother could enjoy her new granddaughter. Gradually the amount of time the child spent with her grandmother increased.
In mid November 2001 the parents were offered employment in the northern New South Wales region. Because this involved hard manual labour, long hours and living in a tent, the parents realised they could not take the child with them. There appears to have been no discussion about the child focussed option of the mother remaining behind with the baby. At their request the maternal grandmother agreed the child could stay with her. The maternal grandfather and her partner, Mr U, both said that the parents were away working for about 12 to15 months during which period they did not see the child. This is not true and during cross examination both conceded that the parents were away for a much shorter period. Unfortunately, in relation to the maternal grandmother’s and Mr U’s evidence on this point, it appears both attempted to mislead the Court so as to establish that from the outset the parents were irresponsible with their daughter and their greater role in her care.
On 21 December 2001 the father was random breath tested. He returned a negative reading. The father was issued with an infringement notice for driving an unregistered vehicle.
The parents returned to T from northern New South Wales on about 23 December 2001 whereupon they resumed living at the paternal grandfather’s home. Upon their return they learned that the maternal grandmother had arranged to take the child to Victoria during the Christmas vacation. The parents agreed not to disrupt the travel arrangements and the child went to Victoria with her maternal grandmother and Mr U. They returned with the child to T in early January 2002.
On 29 December 2001 the father was stopped in T for a random breath test. The test was negative but police discovered the father was driving whilst disqualified for which he was charged. The father’s presence in T lends some corroboration to the parents and paternal grandfathers’ evidence that the parents returned from northern New South Wales before Christmas 2001.
When the child returned to T the parties shared her care. The parents say the child lived with them and approximately every second weekend she stayed with her maternal grandmother. The maternal grandmother claims the child was with them because her parents were away working in northern New South Wales or, having conceded that the parents had returned to T, says they rarely saw her. The paternal grandfather corroborates the parent’s evidence that they resumed the child’s primary care. Although on this issue at this period of time the parent’s evidence is more reliable than that called in the maternal grandmother’s case, it is likely that the maternal grandmother had more time with the child during this period than the parents and paternal grandfather conceded.
On 13 April 2002 the father assaulted his father. When the paternal grandfather refused the father’s request for money an argument developed during which the father punched his father to the head and face. The paternal grandfather went to a neighbour’s house and called police. By the time police arrived the father was gone. This incident occurred in T and lends support to the father and parents evidence they had returned from northern New South Wales much earlier than the maternal grandmother and Mr U allege.
In August 2002 the father commenced fulltime work at Mr U’s business. It is noteworthy that the maternal grandmother and Mr U said the parents were away in northern New South Wales at a time when the father was working for them in T.
Following his PCA conviction on 22 September 2002 the paternal grandfather’s driving license was suspended for 12 months.
On 8 October 2002 the mother’s driver’s license suspension expired.
On 25 November 2002 the mother obtained full time work in the public service. While the parents were at work the maternal grandmother cared for the child. The parents were working fulltime which meant the maternal grandmother was heavily involved in the child’s life. Possibly even more so than the parents.
On 5 March 2003 the father was charged with the 13 April 2002 assault on his father in relation to which he was convicted of assault occasioning actual bodily harm.
In June 2003 the parents enrolled the child at the local ABC Developmental Learning Centre. Whilst the parents were at work the child was cared for by her maternal grandmother or attended preschool.
In early July 2003 the parents and the child moved to DD Street in T. The pattern continued whereby the child attended preschool or was cared for by the maternal grandmother while the parents were at work. At least every second weekend from after preschool Friday until Sunday afternoon the maternal grandmother cared for the child. From at least this point the maternal grandmother was primarily responsible for the child’s care with the child spending no more than a couple of nights each week with her parents.
From the period between July 2003 and August 2006 the parents and paternal grandfather were estranged.
At the maternal grandmother’s request in July 2004 the mother arranged for the maternal grandmother to have a Medicare card for the child in her name. This was necessary because of the maternal grandmother’s substantial care of the child.
In about August 2004 the parties purchased a home at G Street in T.
In December 2004 the mother stopped receiving parenting payments from Centrelink for the child.
On 3 May 2005 the mother began full time work for B Pty Ltd. On a continuous roster the mother worked four days followed by two days off. Ordinarily the mother started work at 6.30 am. On the mother’s days off the child usually stayed with the parents.
At the end of May 2005 the father’s employer shut its T business and moved to another centre. The father immediately obtained full time employment at NS Company in D near Newcastle. The father’s employer contracted to pay him $17 per hour for a 40 hour week and $28 per hour overtime. By then the parties were in financial difficulty and the father negotiated with his employer that each week he would work at least 10 hours overtime. The parties hoped to re-establish themselves in D and decided the mother would remain behind in T so that the DD Street property was maintained and to be near the child.
The companies wage book[3], which requires some caution, is in evidence. Until November 2005 the father’s signature appears for each week’s entries. There is then a gap without entries with the wage book resuming on 11 January 2006. From this time onwards the father’s signature is absent and the column headed “employee’s signature” is either blank, with CH or what appears to be running calculations inserted. Notwithstanding its deficiencies this document corroborates the father’s evidence that he was working long hours from when he started with the company until he went onto piece rates in November 2006. As far as weekends are concerned for the first four months the father worked five plus one Saturday. His days were long and the father says he increased his amphetamine use so that he could keep the pace up. In the following three months he had one two day period off and was basically working six or seven days each week, a pattern which continued until November 2006.
[3] Exhibit ‘P’
Because the father was working so hard from the time he started with NS Company he had little opportunity to spend time with the child. The maternal grandmother agreed to transport the child and the mother to visit the father from time to time in D. This occurred approximately three or four times during 2005 and four times in 2006. The father returned to T on weekends as often as he could and during holidays. Because he did not have a drivers licence this involved catching a lift with friends returning to T. The wages book shows he had three weeks leave in November 2005, two weeks on March 2006, another two weeks in late June 2006, one week in November 2006, one week in April 2007 and another week in July 2007. During the period between May 2005 and August 2006 the father saw the child about every three weeks.
In January 2006, with the maternal grandmother’s agreement, the parents enrolled the child at W Public School in T. The child commenced kindergarten at the commencement of the 2006 school year. During 2006 the school dealt almost exclusively with the maternal grandmother with the parents having no contact with the school beyond enrolling their daughter.
On 15 May 2006 the father was convicted at D Local Court of being unlicensed for the class of vehicle he was driving. He was fined $300 and court costs.
In August 2006 the father ran into his father. They have remained in close contact ever since.
In mid August 2006 the mother moved to D. By then the parents had lost the DD Street property. The parents asked the maternal grandmother to care for the child until she completed kindergarten at which time they proposed the child would join them in D.
When the mother moved to D the parents lived in a work shed at the industrial site from which the father’s employer ran its business. During the eight weeks the parents lived at the work site the maternal grandmother twice took the child to D to see them for the weekend. At her suggestion the parents stayed at a motel whilst the child was in their care. The maternal grandmother correctly says the work premises were unsuitable for the child. During this period the parents did not visit the child in T.
The mother tried unsuccessfully to find work in D.
In late October 2006 the parents rented a caravan at a park in D. The caravan provided adequate facilities for three people including a bathroom and toilet. The caravan park, however, is well known for the number of drug dealers and drug users who live there. As a long term proposition the parent’s living arrangements were insufficient to provide the child with an appropriate home environment.
On 21 October 2006 the maternal grandmother delivered the child to the parents at the Caravan Park where she stayed for the weekend.
On 24 October 2006 the maternal grandmother and Mr U completed the purchase of a home at H.
Commencing 6 November 2006 for two weeks the mother was in T for the purpose of giving evidence on behalf of the prosecution concerning an assault she witnessed at work. The mother stayed with friends, whose house is closer to the court house than her parent’s home. The mother says she planned to visit the child whilst in T but circumstances made this difficult and she did not. She did not have a car or driver’s license and her friends could not drive her to H. The mother explained the hearing was delayed and she was on standby to give evidence for days longer than anticipated. With respect to the mother this explains her inability to visit the child during court hours. Although it would have been difficult to see the child it was not so difficult that it was reasonable for the mother to not see the child at least once outside of court hours. When the hearing went in to a second week the mother anticipated on the intervening weekend that the maternal grandmother would drive her, with the child, to D so that the parents could have the weekend as planned with their daughter. By the time the mother contacted the maternal grandmother she had already left for D and the mother remained behind in T.
Between 7 and 10 November 2006 the father voluntarily obtained admission to the detoxification unit at W Hospital. Since then the father has used cannabis once but has not used other illegal drugs. The weekend following his discharge the father cared for the child alone. This is the weekend that the mother remained in T because of the unfinished trial.
On the weekend 17 to 19 November 2006 the maternal grandmother took the child to D where she spent the weekend with her parents. At the end of this weekend the mother and maternal grandmother discussed the child’s care. By this stage tensions were building between the parties concerning the child’s living arrangements and the parent’s determination the child, at the end of kindergarten, would return to their fulltime care.
In early December 2006 the maternal grandmother sought legal advice concerning her desire that the child remains in her care. Following this the maternal grandmother stopped taking the child to her parents in D and the parents were increasingly concerned that at the end of the school year she would refuse to allow the child to live with them.
On 16 December 2006 police stopped the father at 1.15 am near the D Mall area. He was riding a pushbike and dressed in dark clothing. Police were suspicious and searched the father for drugs. No drugs were located. I accept the father’s evidence that he was riding to or from work.
On 18 December 2006 the mother telephoned the maternal grandmother to speak to the child. She refused the mother permission and asked whether the mother had received a letter from her solicitors. They had not and it appears the suggested letter had not been sent. The father then telephoned the maternal grandmother. The maternal grandmother told him that something had happened with the child at school and the Department of Community Services was involved. With this conversation the parties made clear what all had suspected namely that they were seriously at odds with each other concerning the child’s future living arrangements. The maternal grandmother knew that absent an order in her favour, if the child’s parents wanted to remove her from school there was nothing the school could do to stop them. To avoid this risk she kept the child away from school and with her for the rest of the week.
On 19 December 2006 the mother attended D then Newcastle Local Courts where she enquired about whether there were current parenting proceedings and sought legal advice. The mother was advised that absent orders or proceedings she was able to take the child.
Accompanied by the paternal grandfather, on 20 December 2006 the parents drove to T. The mother went into the child’s classroom where the teacher advised that the child was absent. The parents and paternal grandfather then went to T police station. Police declined the parent’s request for assistance retrieving the child. Sergeant SS advised the parents that the day before the maternal grandmother came to the police station and told them the parents had handed over custody of the child to her. The parents were advised that although police would not retrieve the child they were free to collect her. The parents correctly anticipated that the maternal grandmother would not voluntarily hand over the child and any attempt to take the child would probably expose the child to considerable unpleasantness. Police contacted the maternal grandmother and made arrangements to see the child so as to ensure there was no immediate child at risk issue. The maternal grandmother took the child to the Police Station where she met Senior Constable P. The child was good spirits and appeared healthy. Police correctly decided there were no child protection issues which required their intervention.
Following this the parties sought legal advice from the paternal grandfather’s T solicitors.
On 21 December 2006 the parents applied to T Local Court for an ex parte recovery order. Having regard to the evidence contained in the parent’s affidavits in support of the recovery order, it surprising that the Court was satisfied there was a proper basis upon which to proceed ex parte. From the parents affidavits it is clear that the parents and thus the Court were aware of the maternal grandmother’s address and telephone number. The Court was informed of the maternal grandmother’s significant role in the child’s life. The only evidence which suggested urgency was the mother’s evidence: “I am concerned that there is a chance that my mother may take [the child] to Victoria to prevent us from recovering her.” Although the maternal grandmother has family in Victoria she had not said or done anything which provided a proper foundation for the mother’s alleged concern. However at its highest the “chance” was no more than a theoretical possibility. This meaning accords with the ordinary reading of the mother’s affidavit.
Not only were the parents allowed to proceed ex parte, but their application for a recovery order was granted. Armed with the recovery order the parent’s returned to T Police Station. Police directed the parents to wait whilst they collected the child. The child, who was then five and a half years old, was collected in a police wagon and shortly afterwards handed over to her parents at the police station. It is unsurprising that the child was very distressed by these events. She settled down after police gave her to her parents. In Kennedy and Kennedy (1993) FLC 92-400 Baker J lamented what he observed was a rising trend of ex-parte orders based upon thin evidence made by Local Courts. Baker J said:
Ex parte orders have become the bane of this Court. There are far too many ex parte orders made, accompanied by warrants, with a result that children are, in effect, taken by members of the police force from one parent and placed into the custody of another, on many occasions based upon very thin evidence. An ex parte order, in my view, should not be made except in extreme circumstances and only if the physical, sexual and emotional welfare of children is at risk.
Baker J’s comments apply to the ex parte orders made in this case.

The maternal grandmother is understandably critical of the parent’s ex parte application and their failure to disclose the father’s drug history to T Local Court. She submits that this reflects adversely on their credit. In so far as the submission concerns their failure to give full and frank disclosure I agree. I also adopt her submissions concerning the inappropriateness of the application however I do not agree that the parent’s actions in seeking it undermine their credibility or demonstrate a poor attitude towards their parental responsibility. Before applying for the recovery order the parents sought legal advice. The parents are relatively unsophisticated and had no reason to second guess their solicitors advice. They took the course that avoided a confrontation with the maternal grandmother which they reasonably anticipated would play out in the child’s presence and cause her considerable distress. Faced with the dilemma of retrieving the child the parents chose what they reasonably believed was the appropriate legal remedy.
On 28 December 2006 the maternal grandmother filed an application for parenting orders in this Court. It appears the application was prepared in a hurry and sought only final orders, although as the maternal grandmother’s affidavit makes clear she also sought identical interim orders. Essentially the maternal grandmother applied for orders that the child lives with her and that she has parental responsibility for the child. The maternal grandmother proposed that the child spends time with her parents in T as agreed between the parties and that the parents be restrained from taking the child away from T. The application was returnable on 16 January 2007.
On 3 January 2007 the maternal grandmother filed an Application in a Case formally seeking interim orders.
On 8 January 2007 the parties attended a child dispute conference. Although they were unable to agree about the child’s long term living arrangements, they agreed she would spend the following week with her maternal grandmother which she did.
The proceedings came before the Court on 16 January 2007. The parties were directed to file any further affidavits no later than 31 January 2007 and the matter was listed for an interim hearing on 5 February 2007.
On 5 February 2007 the Court made the following interim orders:
1.     Until further order the child […] shall live with the parents as follows:-
1.1Each alternate weekend from 7.30 pm Friday until 2.30 pm Sunday commencing Friday, 16 February 2007.
1.2The second half of all school holidays other than Christmas holidays commencing at 12.00 noon on the second Saturday of such holidays and concluding on the following Saturday at 12.00 noon.
1.3If Mother’s Day, Father’s Day or [the child’s] birthday falls on a weekend or school holiday period outside the periods referred to in order 1.1 and 1.2 hereof the parents may, by 14 days written notice, nominate a weekend and/or school holiday period in substitution for the weekend which would otherwise apply.
1.4Provided the parents reside within 50 kilometres of [D], the Applicant shall deliver the child to the parents at their home, and collect her therefrom.
1.5At all other times commencing 7.00 pm today, [the child] shall live with the Applicant.
2.     The Applicant shall, subject to school availability, use her best endeavours to ensure that [the child] attends [W] Public School [in T].
3.      Liberty to restore instanter for the purpose of giving effect to order 1.5.
4.      The Court requests that the Principal of [W] Public School assist in the re-enrolment of the child in that school pending further agreement between the parties or further order of the Court.
5.      These orders are by way of variation of the [T] Local Court made on 21 December 2006.
6. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child […] born […] May 2001.
In accordance with these orders the child was returned to the maternal grandmother. She was in good health and there is nothing about the child’s presentation which indicates she had been inadequately cared for.
On 9 February 2007 the parents filed an Application in a Case seeking further parenting orders. This application was listed for hearing before me on 2 April 2007 on which day I made the parenting orders set out below.
1.      That the matter shall proceed to day 1 of a Less Adversarial Trial today.
2. By consent that pursuant to Part 15.5 of the Family Law Rules an expert be appointed, namely Dr [PJ], Paediatrician nominated or if not available, a paediatrician nominated by the Independent Children’s Lawyer in consultation with the parties legal representatives, to examine the child […] born […] May 2001 and to report on the child’s physical well being and in particular her skin, dental health and if experiencing any sleep disturbance.
3. By consent that pursuant to section 62G(2) of the Family Law Act (1975) the parties and the child of the relationship attend upon a Family Consultant nominated by the Dispute Resolution Co-ordinator of the Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be prepared as a matter of urgency.
4.      That until further order and the child […] shall spend time with her parents as follows:
(a)each alternate weekend from 8.00 am to 5.00 pm Saturday and 8.00 am to 2.30 pm Sunday commencing the second weekend after school term recommences;
(b)for four days during the second half of all school holidays other than Christmas holidays commencing at 9.00 am on the second Saturday of such holidays for four continuous days being from 9.00 am to 7.00 pm each day;
(c)if Mother’s Day, Father’s Day or [the child’s] birthday falls on a weekend or school holiday period outside the periods referred to in order 1.1 and 1.2 hereof the parents may, by 14 days written notice, nominate a weekend and/or school holiday period in substitution for the weekend which would otherwise apply provided that the child shall not spend time overnight with the Respondents;
(d)provided the parents reside within 50 kilometres of [D], the Applicant shall deliver the child to the parents at their home and collect her therefrom.
5.      Other than as provided in order 4 above at all other times [the child] shall live with the Applicant.
6.      That further consideration of this matter is adjourned to 4 June 2007 at 9.30 am. It is intended that upon receipt of the Family Report the Court will consider again whether the parents should spend time overnight with [the child]. In the event the parents wish to seek this change they must give the other parties and Court written notice 7 days before the next court date.
The Court Notes that the issues for trial are:
A.     Who has been [the child’s] primary carer?
B.     Has the child been exposed to domestic violence?
C.     The future proposals of the parties in relation to [the child’s] living and school arrangements.
D.     The extent to which the parents and/or grandparents have demonstrated their responsibility to parenthood.
E.      The capacity of the parents and grandparents to provide for [the child’s] physical, emotional and/or intellectual needs.
F.      The maturity and lifestyle of the parents.
G.     The willingness and ability of the Applicant and Respondents to facilitate and encourage a close and continuing relationship with the other party or parties.
H.     The likely effect of any changes, including any likely separation from either parent or the Applicant.
I.       The practical difficulty and expense of the child living with or spending time with a party.
J.      The extent of time the child spends with the parents and grandmother on an interim and final basis.
In April 2007 the father smoked a cannabis joint. The mother was aware of his action and both say he has not done so since.
On 18 April 2007, in response to the father’s call, police attended the parent’s caravan. The parents were involved in a serious verbal argument with each demanding that the other leaves. The father feared the argument was getting out of control and hence contacted police. Police took no further action. The parents did not separate.
On 22 May 2007 the Family Consultant’s first report was released. At the end of this report[4] Mr C made the following recommendations:
80.    It is recommended that interim arrangements be put in place as soon as possible until December 2007. Ideally the parties should agree on the specific details of the interim arrangements based on the principal that [the child] should spend the majority (around 75 per cent) of all weekends with the parents and the majority (around 75 per cent) of all school holidays with the parents while ever [the child] is living primarily with the grandmother. In addition, the parents should make a concerted effort to involve themselves in [the child’s] school life which is currently based in [T] including where possible, picking [the child] up and / or dropping [the child] off directly from school at the start / conclusion of periods that [the child] is spending with them. This might be achieved by the parents (or at least one of them) travelling to [T] once each four weeks in sufficient time for them to engage with school teachers and parents of [the child’s] friends.   The parties may benefit from the support of the report writer in a child dispute conference to assist them to reach specific detailed written appropriate arrangements.
81.    It is recommended that the parents be in regular and liberal telephone communication with [the child]. The way in which the parties actively facilitate such communication might be an important future indicator as to their willingness and ability to facilitate ongoing relationships between [the child] and the other parties. Initially the telephone contact may need to be formalised so that it occurs at 6.30pm each Wednesday night with the parties alternatively contacting each other. It is hoped and anticipated that by the end of the interim period the telephone contact might be occurring in a much less rigid way and be based upon the natural life activities and routine of [the child]. This will of course, depend on the parties willingness and ability to put [the child’s] best interests ahead of their own adult level conflicts.
82.    It is recommended that final court orders be made January 2008 considering how each of the parties have implemented the interim orders in a child focussed way with a view to the best future outcome for [the child] rather than a continued focus on past events.
83.    It is recommended that the parents obtain independent professional financial planning including the preparation of a realistic written detailed debt management and budgeting strategy (from an agency such as Lifeline, Ph: 1800 808488, Hunter Valley Project, Ph: 49329777, or Maitland Neighbourhood and Community Centre, Ph: 49320950).
84.    It is recommended that the mother seek professional counselling as determined appropriate by her treating general practitioner to assist her to deal with her current hostile feelings and current feelings of generalised anxiety. It is hoped that as the mother is assisted with professional supportive counselling, she may be able to restore past positive relationships with her brother in Newcastle and his family as these people may not only be important for the mother’s long term psychological well being but also may be an important source of support and positive family interaction for [the child], particularly if she is to spend more time in this area.
[4] Exhibit ‘K’
On 8 June 2007 I made the following interim parenting orders:
1.      Pending further order that orders 4(a) and 4(b) made on 2 April 2007 are suspended.
2.      That the Respondents shall spend time with the child […] born […] May 2001 as follows:
(a)from 8.00 am Saturday until 5.00 pm Sunday on those weekends when [the child] spends times with her parents at [D];
(b)from 8.00 am Saturday until the commencement of school Monday on those weekends [the child] spends time with her parents at [T].
(c)[The child] will spend the weekend commencing 16 June 2007 with her parents at [T] and each fourth weekend thereafter;
(d)[The child] will spend the weekend commencing 21 July 2007 with her parents at [D] and each fourth weekend thereafter;
(e)from 12.00 noon 30 June 2007 until 12.00 noon 8 July 2007 at [T].
3.      That the parent’s time with [the child] is suspended from 2.00 pm until 5.00 pm on 3 July 2007.
4.      On the weekends that [the child] spends with her parents at [D] the applicant grandmother shall deliver and collect [the child] to and from her parents at their home.
5.      Unless the orders provide to the contrary on periods [the child] shall spend with her parents in [T], the grandmother shall deliver [the child] to her parents outside the main post office in [T] and they shall return her to her grandmother at the same place.
6.      On those occasions when the parent’s weekends extend to the Monday morning, they shall return [the child] to school.
The father’s employment with NS Company terminated in mid July 2007. The father had switched from full time salaried to piece work in November 2006. It appears that the father and his employer anticipated this would increase the father’s income but partly because the father was unable to keep up a work pace which justified extra money and disorganisation in the workplace this did not eventuate. Because the mother had been unable to find work she helped the father with his work from the time he went onto piece work. The wages book suggests that the father owes his employer $2262 plus one week holiday leave which the father denies. The employer has not taken recovery action and the father’s denial appears credible.
In July 2007 the parents rented a cottage at O across the road from the paternal grandfather’s home. O is 50 kilometres from T and H. During daylight hours it is an approximately 45 minute and at night 60 minutes drive to T. Upon their return to the T region the mother obtained employment with her former employers B Pty Ltd and the father with AF Company.
The proceedings again came before me on 31 July 2007 on which occasion I made the following interim parenting orders:
1.      Pending further order Orders 2, 3, 4, 5 and 6 made 8 June 2007 are suspended.
2.      That the Respondents shall spend time with the child […] born […] May 2001 as follows:
(a)each alternate weekend from 4.30 pm Friday until the commencement of school Monday commencing 3 August 2007;
(b)during the end of September school holidays as agreed between the parties in the event the parties are unable to agree the matter is to be re-listed before me by arrangement with my Associate and the issue of school holiday arrangements will be determined.
3.      That unless [the child] is being collected or returned to school, changeover shall take place at outside the main post office in [T].
Because the parents did not personally attend the first set of interviews with the Family Consultant I ordered that the first report be updated.
In August 2007 the mother obtained her driver’s license. In the short period between the parents being able to return the child to school on Monday mornings and the mother obtaining her drivers license the paternal grandfather, having dropped the father at work, took the child to school. They left home at about 6.00 am. Once the mother had her license she drove the father and the child into town, where having delivered the father the mother and the child went to a friends home where they waited until the mother delivered the child to school between 9.00 am and 9.15 am. With this arrangement the child arose at 6.00 am.
On 14 September 2007 the Family Consultant released his second family report. In this report[5] Mr C made the following recommendations:
[5] Exhibit ‘L’
38.    That final court orders are not made at this time.
39.    That interim orders be made so that [the child] continues to live predominantly with the maternal grandmother and continues to spend time with the parents.
40.    That both the maternal grandmother and the parents have joint equal long term responsibility for decision making regarding [the child] during the period of the interim orders. It is recommended that if the parties are not able to agree on schooling issues then the maternal grandmother have responsibility for deciding which school [the child] will attend in 2008. The maternal grandmother is strongly encouraged to carefully consider the parents’ views on this matter particularly given the very real possibility that in the future [the child] will be living with her parents and that the parents will have the sole ongoing responsibility for decisions about [the child’s] schooling.
41.    The time that [the child] spends with the parents should be based on the parents picking [the child] up from school (rather than a venue such as the post office as it currently is) and returning [the child] to school.
42.    That in the fourth term of 2007, [the child] spend time with the parents from after school on Friday to before school on Monday. This is likely to involve [the child] having five very early morning starts over the ten week term and while this is not ideal, it is outweighed by the benefit to [the child] in spending the time with her parents.
43.    That in 2008, the time that [the child] spends with her parents be increased from as soon as possible after both parents have a current drivers’ licence.
44.    That the initial increase should involve one term of [the child] spending time with her parents on alternative weekends from after school Thursday to before school Monday.
45.    That the second increase should involve one term of [the child] spending time with her parents on alternative weekends from after school Thursday to before school Tuesday.
46.    That [the child] should spend half of all school holidays with her parents.
47.    That [the child] should spend time with her parents on significant cultural occasions such as Christmas, birthdays, Father’s day, Mother’s day.
48.    That the parents speak with [the child] at least once each and every week on the telephone and that [the child] be encouraged to speak with the other parties on the telephone at other times as well. As noted in the earlier Family Report, the way in which the parties actively facilitate such communication will be an important future indicator as to their willingness and ability to facilitate ongoing relationships between [the child] and the other parties whilst [the child] is in their care.
49.    That both the maternal grandmother and the mother obtain professional assistance so that they are able to communicate respectfully with each other regarding [the child]. It is also recommended that both the mother and the father consider the advantages and opportunities for [the child] to know and enjoy her extended family.
50.    That the maternal grandmother, the mother, and the father all undertake a parenting after separation type program.
51.    That the parents become actively engaged and involved in [the child’s] schooling, medical, dental and extra curricula activities.
52.    That the parents obtain independent professional financial planning including the preparation of a realistic written detailed debt management and budgeting strategy (from an agency such as Lifeline).
On 19 October 2007 the mother attended her doctor where a blood test suggested she may have Hepatitis C. Subsequent testing[6] revealed the mother does not have Hepatitis C and the probable explanation for the indication she may have it is that at some stage she was exposed to it. The father has Hepatitis C and is the likely source of her exposure.
[6] Exhibit ‘N’

On 29 October 2007 I made the following interim parenting orders:
1.      That the Respondent Mother and Father are to spend time with [the child] born […] May 2001 as follows:
(a)During Term 4 of 2007 as gazetted by the New South Wales Department of Education and Training each alternate week from the end of school on Thursday to the commencement of school on Monday, or Tuesday if it is a long weekend.
(b)During Terms 1 and 2 of 2008 as gazetted by the New South Wales Department of Education and Training each alternate weekend from the end of school Thursday to the commencement of school on the following Tuesday, commencing the first weekend in each school term.
(c)During the school holidays as gazetted by the New South Wales Department of Education and Training:
(i)the first two weeks, commencing at the end of school on 21 December 2007, and the second last week (5^th week) of the Christmas school holiday period with the time with [the child] suspended on 25 December 2007 from 10.00 am to 4.00 pm to allow the Applicant to spend time with [the child] on Christmas Day,
(ii)for the first half of the Easter school holidays.
(d)If […] May 2008 ([the child’s] birthday) does not fall on a period when [the child] is spending time with the Parents then they will spend time with [the child] for three hours and failing agreement as to the time, from 2.00 pm to 5.00 pm
(e)If […] May 2008 ([the child’s] birthday) does not fall on a period when [the child] is spending time with the Applicant then the Applicant will spend time with [the child] for three hours and failing agreement as to the time, from 2.00 pm to 5.00 pm.
2.      That the Mother or Father during school terms will collect [the child] from school and will return [the child] to school and [the child] must be returned to school no earlier than 30 minutes before school commences.
3.      That collecting and returning [the child] to and from periods of time with the Parents is as per earlier orders.
4.      That the Applicant is to ensure that [the child] has the appropriate school uniforms for the parents to collect when collecting [the child] from school.
5.      That the parties agree to undertake relationship counselling at a place nominated by the Independent Children’s Lawyer and in relation to which the parties shall commence counselling as soon as possible.
6.      That during the school holidays provisions for alternate weekends are suspended.
On 30 October 2007 the mother commenced unpaid maternity leave.
At the maternal grandmother’s request, during the Christmas 2007/2008 school holidays the parents agreed to change their dates so that the maternal grandmother could take the child to Queensland. Because of poor weather they abandoned Queensland in favour of Copeton Dam.
In January 2008 the father had a serious motor bike accident. His injuries kept him off work until April 2008.
In accordance with an earlier order in February 2008 the mother and maternal grandmother attended counselling with Relationships Australia. Unfortunately the situation between the mother and maternal grandmother deteriorated. At least until the child’s future living arrangements are settled by order there is no prospect these two women’s relationship will improve. This is a situation for which both bears responsibility.
The parent’s son, the subject child’s brother, was born in March 2008.
On 24 April 2008 the father’s employment with AF Company was terminated[7]. The father had been absent from work ill for three days. He asked his father to notify his employers and deliver a medical certificate. The parents did not have a telephone. The medical certificate was delivered by the paternal grandfather on the fourth day by which time the father’s employment was terminated on the basis it had been abandoned.
[7] Exhibit ‘Q’
During May 2008 the father obtained his drivers license.
On 31 May 2008 the mother told her doctor she was depressed. In accordance with her doctor’s advice the mother commenced taking an anti-depressant and sought a referral to a psychologist.
On 3 June 2008 the third Family Report was released.
On 18 June 2008 the mother attended Ms M, the psychologist to whom she was referred by her general practitioner.
Since the proceedings have been before this Court the child has generally spent time with the parties with the frequency provided for in the various orders. I infer this arrangement continued after I reserved my decision.

The general law in parenting applications

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement   necessary:
(i)         to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and
(ii)      to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against ordering that the parents have equal shared parental responsibility s 65DAA considerations do not apply.

Do the 2006 amendments to Part VII of the Family Law Act elevate parents above others when determining a child’s best interests?

The parents argue that as a consequence of the 2006 Part VII amendments to the Family Law Act, in parenting proceedings involving third parties parents are elevated to a special and preferred position. It is submitted that the legislation does not sit comfortably with parents living together and that the constant reference to “parents” in Part VII, particularly in the provisions containing the Objects, Principles, Primary and Additional Considerations, evidences a distinct bias in favour of parents compared to third parties. The maternal grandmother submits against the parent’s argument and reliant upon a decision of the Full Court in Dennet and Norman [2007] Fam CA 57 says there is no preference in favour of parents.
A review of the decided cases shows that following each significant change to Part VII of the Family Law Act the Court has considered the significance of the fact of parenthood in parenting cases. Prior to the 2006 Part VII amendments the law was well settled that there was no preference in favour of parents in parenting disputes. Rice v Miller (1993) FLC 92-415.
In Dennett & Norman the mother argued that by virtue of parentage she should be preferred to the child’s grandparents. By reference to ss 61B and 61C Family Law Reform Act 1995 (FLRA) the mother argued that it was wrong to reduce the significance of parenthood merely to a significant factor in the exercise of a broad discretion as to the child’s best interest. The mother contended that the oft cited post FLRA authorities were wrongly decided. The mother’s argument failed with the Full Court holding:
In our view, the trial Judge correctly applied settled principles in the present case. Whilst it might seem that he preferred the grandparents he did so because of the evidence before him including balancing the potential parenting capacities of each party and in our view based on the expert evidence it was entirely clear that he should do so. In view of the very clear provisions of the Family LawAct and the cases to which we have referred we do not see any basis in this argument.
If, as the maternal grandmother submitted, the Full Court in Dennett and Norman resolved this issue in favour of the application of the no parental preference approach under the current Act the parent’s contention is easily addressed. However whether or not Dennett and Norman involved consideration of the issue by reference to the Family Law Act as amended on 1 July 2006 is the subject of some disagreement.
In Davis v Davis & Anor (2007) 38 Fam LR 671 (unreported 28 September 2007) Young J held that Dennett and Norman was decided by reference to the FLRA and that the question of whether the 1 July 2006 amendments statutorily introduced a presumption in favour of parents had not yet been considered by the Full Court[8]. Young J’s decision accords with the position taken on this point by O’Reilly J in Kay, Jasper and Green [2007] Fam CA 1646 (unreported 14 December 2007). Taking the contrary view in West and Anor and West [2007] Fam CA 546 Benjamin J said:
Another legal issue is whether there is now a presumption that a child live with a biological parent and whether the decision in Rice v Miller (1993) FLC 92-415 had been statutorily overturned by virtue of the 2006 amendments to the Family Law Act. That question was considered by the Full Court in Dennett & Norman [2007] Fam CA 57 where the principles in Rice and Miller, seemed to have been considered and affirmed. In Dennett & Norman the Full Court set out the settled principles and, in the light of the 2006 amendments, held that in that case the trial judge had correctly applied the settled principles.
[8] At par 114.
In Connor & Bourke & Anor [2008] FMCA fam69 Altobelli FM said that “the Full Court has consistently rejected the notion that there is a presumption in favour of a parent as opposed to a non-parent, or that the 2006 amendments have changed the law in that regard.” Although Altobelli FM cites a number of authorities in support of this proposition Dennett & Norman is the only case referred to decided post 1 July 2006 and is plainly the sole authority upon which he relies for support of his post 1 July 2006 statement of principle.
Dennett and Norman concerned an appeal against parenting orders made on 17 February 2006. The appeal was heard on 11 May 2006 and judgment was delivered on 13 February 2007. The 1 July 2006 amendments do not apply retrospectively. Concerning the question of whether Dennett and Norman is authority for the continuation of the no parental preference approach post the 1 July 2006 amendments I respectfully agree with Young and O’Reilly JJ. That is as O’Reilly J held “..the case was heard ..before those amendments took effect. Thus, it is plain the Full Court was not considering the subject matter of the submission in light of the amendments which took effect on 1 July 2006.”
Consequently the maternal grandmother’s submission regarding the effect of Dennett and Norman fails and it is necessary to further consider the parents submission that the amendments to the Family Law Act which took effect on 1 July 2006 by inserting repeated references to the involvement of parents in children’s lives, in particular s 60B(1), s 60B(2), s 60CC(2)(a) and (3), s 61C, s 61DA, s 65DAA(1) and (2), s 64B(2) and others, statutorily overturned the no parental presumption line of cases and elevated the position of parents. An historical overview of how the jurisprudence on this issue has developed is instructive. It reveals that the Family Law Act has always required that the Court determines parenting cases with the child’s best interests or welfare as the paramount consideration. Although the language of the Family Law Act changed the focus has always been upon delivering the best possible outcome for the child.
The notion of that in a parenting dispute between a parent and a non-parent the parent is preferred reflects case law decided well prior to the commencement of the Family Law Act. In Storie v Storie (1945) 80 CLR 597 at 603 the High Court, per Latham CJ said:
… prima facie the welfare of the child demands that a parent who is in a position, not only to exercise parental rights, but also to perform parental duties, should have the custody of the child as against a stranger. The fact that a stranger can also provide as good (or even, I should say, a better home is in the circumstances an element of only slight, if any weight.
This statement was grounded upon the idea that considerations other than the child’s welfare could be relied upon when making a parenting order. This position was maintained in Lovell v Lovell (1950) 81 CLR 513 when the High Court emphasised that the welfare of the child is not the only consideration and cannot “elbow out all other considerations”. According to this view there may be other considerations besides the welfare of the child that need consideration in custody proceedings. Latham CJ concluded that these other considerations could exist as independent determinants and rejected the idea that other considerations were relevant only to the extent that they were linked to the child’s welfare. The gist of this argument was that “exclusive attention to the welfare of the child would allow rich men to adopt children against the will of poor parents”.
After the Family Law Act commenced the High Court in Gronow v Gronow (1979) 144 CLR 513 rejected recourse to any ‘presumptions’ in custody or similar proceedings relating to children saying:
… even in a community of unchanging social conditions, hard and fast rules or presumptions, based only upon matters of common but invariable experience, provide a poor basis for the assessment of human behaviour compared with detailed investigation of the individuals in question. In times of rapid social change their inadequacy will be greater,

For their part, the parents considered they were making sound parental decisions concerning the child’s care. By this I mean trying to stabilise their lives and where work and other commitments conflicted with the child’s fulltime care, exercised their parental responsibility by delegating the later to the maternal grandmother. I accept the parent’s contention that they have worked hard to stabilise their lives with, if not the sole aim, a significant motivator being to put them into a better position to provide for the child. Their efforts have been significant and the changes consistent with a desire to fulfil rather than abrogate their parental responsibilities. Because of the significant gains the parents have made to their lifestyle and commitment to their daughter demonstrated throughout these proceedings their earlier failure to meet their parental responsibilities, whilst reasonably significant is not pivotal to the outcome of these proceedings. I place greater weight upon the parents attitudes demonstrated since early 2007 and am strongly satisfied that both parents are keenly committed to appropriately meeting their parental responsibilities into the future.
Section 60CC(3)(j) and (k) concern family violence and whether there is a family violence order. Although by the end of the hearing submissions suggested this was no longer an issue, in the sense that the likelihood of future family violence appears to be accepted as low the gravity of the issue in this case requires that I form my own views on the matter.
There is no evidence of family violence in the maternal grandmother’s home and life. I infer there is none and that in her care the child will not be exposed to family violence.
The parent’s concede there have been violent incidents between the father and paternal grandfather and the mother and paternal grandfather. As to the latter, my earlier findings reveal the paternal grandfather was the protagonist. Although an isolated incident it was serious and the mother is fortunate she did not suffer more serious injuries or the child she was carrying harmed.
From the time the father began living with his father until mid 2002 the father and paternal grandfather’s relationship was marred by episodic family violence. In their early years living together the father threatened and at times assaulted his father so as to get money for drugs. Twice after the parents began living together the father assaulted his father in relation to which the paternal grandfather obtained assistance from police and the courts. Drugs and alcohol feature in these altercations and are likely to be significant contributors to the abuse and violence. The last incident of verbal or physical abuse between the father and his father occurred in April 2002. For the period between July 2003 and August 2006 the parents and paternal grandfather were estranged and no comfort can be taken from the lack of violence during this period. However it is significant that since August 2006 the parents and paternal grandfather have been in close contact without incident. It is particularly significant that since the parents moved to O in mid 2007 the parents and paternal grandfather have spent time together virtually every day without incident.
Although the mother denied it, the paternal grandfather is an alcoholic. When drunk he is more prone to erratic behaviour, including verbal and on at least one occasion, physical abuse. When he is sober and his alcoholism is controlled this type of aggressive behaviour is, for the paternal grandfather, out of character. Provided the paternal grandfather restricts his alcohol consumption to reasonable limits he is unlikely to behave towards the parents or in the child’s presence, in an abusive or provocative manner. Excessive drug use and alcohol use has a similarly bad effect upon the father’s behaviour. If he maintains his drug free status and limits his alcohol use, the risk the father will behave in an abusive or provocative is negligible. The paternal grandfather has settled employment and is keen to maintain his present good relationship with the parents. The sense I had of the situation is the paternal grandfather has maintained a much more moderate approach to his alcohol consumption since at least the time the parents moved to O and that during this period he has not drunk to excess. This further moderates the risk of future violence between the father and paternal grandfather. Another moderating factor is that the parents and paternal grandfather do not reside together. This is a significantly different dynamic to that which existed through much of the earlier period when the father and paternal grandfather, paternal grandfather and mother were involved in verbal or physical altercations.
The Family Consultant explored the issue of exposure to family violence with the child. The child recalled her mother shouting, that sometimes her parents ‘say mean things to each other” and that “Daddy smacked mummy once a long time ago.” As to the latter the parents do not know what the child is speaking about and both deny that the father hit the mother. They agree the child has occasionally witnessed arguments between them but none which could be categorised as family violence. I accept their evidence. The child was not present in April 2007 when the parent’s argument reached the point that the father called the police. The child had a good rapport with the Family Consultant and had she been exposed to family violence while in her parents care it is more likely than not she would have disclosed it. On balance I am persuaded she was not referring to family violence when speaking about the unclear ‘smacking incident” and has not been exposed to family violence of any type in her parent’s care.
Considering the evidence in its entirety, I am satisfied in the parent’s care, although there is a risk the child may be exposed to family violence the risk is low level and is a factor which warrants modest weight.
Section 60CC(3)(l) requires that the Court considers 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. The longevity of the parent’s dispute with the maternal grandmother has taken a heavy toll on the parties’ relationships and the child. Further litigation is likely to exacerbate this situation and increase the emotional harm to the child the Family Consultant says arises from the mother and maternal grandmother’s hostile relationships. Orders which leave the child primarily in her maternal grandmother’s care are contrary to the child’s views, which views as I have already indicated are likely to strengthen. There is a reasonably strong probability this may result in further problems and proceedings. Because there is a prospect the parents lifestyle changes earlier referred to may not be maintained, there is at least a theoretically possibility if the child lives with them, that the maternal grandmother will be motivated to intervene and in the future seek orders that the child returns to her care. The first scenario is more likely than the second. While I take these factors into account they warrant relatively modest weight.
Section 60CC(3)(m) permits the Court to consider any other fact or circumstance which it thinks is relevant. In D & F (supra) the Full Court said:
There is a clear need in each case to understand the ramification of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a risk to the child’s welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.
Although these remarks were made in the context of the Family Law Reform Act, they are no less valid to cases decided under the current law. In this case the fact of parenthood warrants favourable consideration. Notwithstanding that in a number of respects the maternal grandmother is a more capable person with a demonstrated commitment and capacity to care for the child on a day by day basis, it is relevant that the child’s views and emotional and psychological well being are linked to her relationship with her parents as a consequence of which the parenthood factor weighs in favour of the parent’s application.
There is considerable overlap between s 60CC(4)(a) and s 60CC(4)(c) with s 60CC(3)(i). Although not to the extent the maternal grandmother contends, the parents significantly failed to fulfil their parental responsibilities to the child prior to late 2006. Their immature misunderstanding of the child’s needs and the consequences of the father’s substance abuse resulted in the parents failing to spend time with their daughter and involve themselves in actively exercising their parental responsibilities to the extent available and which their daughter required. Had their immature and inadequate attention to their daughter persisted this significant factor may have been decisive. However, greater weight is given to the parent’s consistent desire and attempts to fulfil their parental responsibilities and the manner in which they have taken every opportunity to spend time with the child since late 2006.
Unfortunately for the child the parent’s telephone communication with her has not been as reliable as various interim orders facilitated. This is a symptom of the high level of distrust which exists between the mother and maternal grandmother and the mother’s belief that her mother listens in to the parent’s conversations with the child. For her part, the maternal grandmother is suspicious of the parent’s claimed lifestyle changes and it is likely she has occasionally positioned herself to overhear the child’s telephone conversations with her parents. However I do not accept that each time the parent’s spoke with the child the mother heard the maternal grandmother in the background and regard the parent’s failure to telephone the child with the frequency the orders and she anticipated as regrettable. Had the mother focused on the child’s well being rather than her antipathy for the maternal grandmother the child’s disappointment would have been avoided.
The maternal grandmother and Mr U have, while the child has been in their care, supported her without financial contribution by the parents. At various times the parents have been effectively destitute and their capacity to contribute to the child’s expenses was extremely limited. When both parties were working, however, had the father not chosen to spend money on drugs, the parents would have been able to contribute to the costs the maternal grandmother and Mr U incurred maintaining the child. Although the maternal grandmother and Mr U were content and happy to meet the child’s expenses whilst she has been in their care, this did not alleviate the parent’s obligation to do so.

Conclusion and structure of the orders

When making a parenting order the Court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied its application would not be in the child’s best interests. Having regard to my findings concerning family violence the presumption does not apply. That, however, is not the end of the matter as the Court may nonetheless order that the parents share parental responsibility equally.
The parents submit they should have an order for equal shared parental responsibility. Even if the Court is satisfied the child in the future should live primarily with the parents, it is difficult to understand the desirability for an order for equal shared parental responsibility when, as a result of s 61C, parental responsibility is conferred upon each of the parents. As was explained in Goode and Goode (supra): “Where no contrary order has been made, parents may exercise this [s 61C] responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there were no contrary orders in force.” On the other hand, an order conferring equal shared parental responsibility has the effect described in s 65DAC which in Goode and Goode the Full Court (at par 39) described as being: “Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long term care and welfare of children must be made jointly, unless the Court otherwise provides.” Where parents are separated or likely to disagree on a significant major long term parenting matter, requiring them to jointly make these important decisions may be in the child’s best interests. Where parents cohabit, are in broad agreement concerning their child’s long term interests and there appears little prospects their relationship will fail it is difficult to see how changing the s 61C parental responsibility arrangements is consistent with the child’s best interests. The point being that Parliament empowers parents equally and individually and with their children able to totally rely on each of their parents to make necessary long term parenting decisions. Whichever variation of the possible outcomes concerning the child’s future care is ordered, there is no proper basis for ordering that the parents have equal shared parental responsibility.
As a consequence of the above findings s 65DAA does not apply.
As must be apparent, I am persuaded the child’s best interests are promoted if she predominantly lives with her parents and maintains meaningful relationships with her maternal grandmother and Mr U. The parents are in a position where they are able to capably meet the child’s needs. The child is ready for change and wants to live with them and her brother. Emotionally and psychologically the child’s future well being is promoted if her desire to live with her parents is implemented. Whilst this involves considerable change to the routine of the child’s life and particularly, a reduction in the amount of time she spends with her maternal grandmother and Mr U, the child is ready and able to cope with the consequences of change. I accept the maternal grandmother’s contention that given the parent’s previously immature and inadequate approach towards their parental responsibilities to the child and the lifestyle which they maintained, there are risks to the child inherent in the changes she and the parents seek. However the risks are not unacceptably high and it is my assessment that the prospects the parents will revert to their former lifestyle is low. On the other hand, the risk of further emotional and psychological harm to the child of failing to allow her to live with her parents is high and serious. The evidence strongly supports change with the benefits outweighing the risks. Even if the child’s living circumstances prior to late 2006 was even more closely aligned with the evidence adduced in the maternal grandmother’s case that I have accepted the outcome of the proceedings would be the same.
The approach I have taken to the orders is to facilitate the child’s transition from her maternal grandmother’s to parent’s care without dramatic steps but at a sufficient pace she knows with whom and where she actually lives. The pace of change is different to the example suggested by the Family Consultant however he held out more hope for improvements in the mother and maternal grandmother’s relationship than I do. And significantly different to that which the parents propose. However if the transition phase is too slow the mother and maternal grandmother’s poor relationship is likely to result in unacceptably high pressure on the child. My concern being that unless the child clearly understands her living arrangements because they themselves are clear and the transition is completed sooner rather than later she will continue to be the focus of dispute and put under inappropriate emotional pressure. Adopting a stepped approach the child’s time with her maternal grandmother reduces at the commencement of various school terms. As the child matures the extent of time spent with her maternal grandmother reduces until it reaches a point in 2011 where during school term she spends three nights every three weeks with her. When school holiday time is included this ensures the child will maintain her strong relationship with her maternal grandmother and her life there without destabilising her relationships and life with her parents. The frequency of contact is sufficient for the maternal grandmother to keep a reasonably close eye upon the child’s well being and to be aware if further intervention is warranted.
The child is mature enough to enjoy and manage regular telephone contact with twice each period sufficient to remain in touch with the various parties but not so frequent it unduly intrudes into her time.
The child will be able to celebrate identified special occasions which are likely to be particularly important to her with all parties. Because the child will be primarily living with her parents the duration is weighted in their favour. This is so that the rhythm of her special day to an extent matches the rhythm of her life. While there will be other special occasions the maternal grandmother will wish to spend with the child and which the child would similarly enjoy, their contact is sufficiently frequent additional events can be celebrated reasonably close to the given day. Further variations to the routine of the child’s life would be unduly disruptive.
It seems unlikely the parents’ son will have a significant relationship with his maternal grandmother and as the children mature it is important their relationship is strengthened through spending time out of school hours together. It is most unlikely they will attend the same school and if the child is absent from the parents home too often the opportunity for relaxed interaction with her brother is curtailed.
I have not adopted the Family Consultant’s recommendation that for a period the parties share parental responsibility. The parents are sufficiently aware of the child’s needs and health and professionals involved in her care that they are able to make necessary decisions without further input from the maternal grandmother. With these orders including an injunction restraining the child’s removal from W Public School this year there are no outstanding matters which necessitate sharing parental responsibility with the maternal grandmother even for a short period. While I encourage the parents to discuss matters with the maternal grandmother, involving her more formally only creates an opportunity for further disagreement and tension.
As far as possible change overs will take place at school thus avoiding the risk of unpleasantness between the adults in the child’s presence. During school holidays the parties will share collection and return arrangements at each other homes. The child is able to manage this without there being any necessity for the adults to leave their cars.
There are a series of orders designed to ensure the passage of relevant information between the parties. There are also injunctions the terms of which are self explanatory and are designed to further motivate the parties to avoid the behaviours identified therein.
For these reasons the orders identified at the start of this judgment are in the child’s best interests.

I certify that the preceding two hundred and forty-three (243) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 22 January 2009