Sargent and Selwyn

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARGENT & SELWYN

[2016] FCCA 1987

Catchwords:
FAMILY LAW – Children – Parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – one child aged 3 years and 5 months – where some parenting orders made by consent.

Legislation:

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

Cases cited:
MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Applicant:

MR SARGENT

Respondent:

MS SELWYN

File Number:

SYC 7405 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

11 – 13 March 2015

Date of Last Submission:

13 March 2015

Delivered at:

Sydney

Order pronounced:

29 June 2015

Delivered on:

28 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Levy

Solicitors for the Applicant:

Watts McCray Lawyers

Counsel for the Respondent:

Ms Boyle

Solicitors for the Respondent:

Linden Legal

ORDERS

All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2012.
The child X is to live with the Mother.
The child X is to spend time with the Father from the date of these Orders until 31 December 2015 as follows:
(a)In the first week of each fortnight:
(i)from 8:30 am to 5:30 pm on Tuesday; and
(ii)from immediately after pre-school on Thursday until 5:30 pm on Friday;
(b)In the second week of each fortnight:
(i)From 8:30 am to 5:30 pm on Tuesday; and
(ii)From 8:30 am to 6:00 pm on Saturday.
(c)For changeovers where the child goes from the care of one parent to the care of the other on Tuesdays and Fridays, the parent delivering the child will deliver him to the (omitted) Preparatory School at (omitted) and the parent collecting the child will collect him from (omitted) Preparatory School;
(d)On Saturdays or on days when the child does not attend pre-school changeovers will take place at (omitted);
(e)For two periods each of four (4) days including three overnight periods from 9:00 am on the first day until 5:00 pm on the fourth day, for which purpose the father is to give the mother at least six (6) weeks’ notice of the days he intends to exercise the times provided for in this Order;
(f)The periods of time referred to in the immediately preceding Order are to be at least two (2) months apart and are to include the time that the child spends with the father on either a Thursday, Friday or a Saturday in accordance with these Orders;
(g)The Father’s time with the child is to be suspended for two (2) periods each of four (4) consecutive days at least two months apart, for which purpose the Mother is to give the Father at least six (6) weeks’ notice of the days she intends to exercise those times.
The child X is to spend time with the Father from 1 January to 30 June 2016 as follows:
(a)In the first week of each fortnight:
(i)from 8:30 am to 5:30 pm on Tuesday; and
(ii)from immediately after pre-school on Thursday until commencement of pre-school if the child is attending pre-school on that or 5:30 pm on Friday;
(b)In the second week of each fortnight:
(i)from 8:30 am to 5:30 pm on Tuesday; and
(ii)from 8:30 am on Friday or if the child is attending pre-school that day from immediately after pre-school until 5:00 pm on Sunday.
(c)For two periods each of five (5) days including four overnight periods from 9:00am on the first day until 5:00pm on the fifth day for which purpose the Father is to give the Mother at least six (6) weeks’ notice of the days he intends to exercise the times provided for in this Order;
(d)The periods of time referred to in the immediately preceding Order are to be at least two (2) months apart and are to include the time that the child spends with the Father on a Thursday, Friday or a Saturday in accordance with these Orders;
(e)The Father’s time with the child is to be suspended for two periods each of five (5) consecutive days at least two (2) months apart, for which purpose the Mother is to give the Father at least six (6) weeks’ notice of the days she intends to exercise those times.
The child X is to spend time with the Father from 1 July 2016 until the child commences school as follows:
(a)In the first week of each fortnight from immediately after pre-school on Thursday until 8:30 am or the commencement of pre-school on Monday if the child is attending pre-school on that day; and
(b)In the second week of each fortnight From immediately after pre-school on Thursday or 4:15 pm if the child is not attending pre-school that day until 8:30 am or the beginning of pre-school on Friday;
(c)For two (2) periods each of six (6) consecutive days including five (5) overnight periods from 9:00 am on the first day until 5:00pm on the sixth day for which purpose the father is to give the mother at least six (6) weeks’ notice of the days that he intends to exercise the times provided for in this Order;
(d)The periods of time referred to in the immediately preceding Order are to be at least two (2) months apart and are to include the time that the child spends with the Father on a Thursday, Friday or a Saturday in accordance with these Orders;
(e)The Father’s time with the child is to be suspended for two periods each of six (6) consecutive days at least two (2) months apart, for which purpose the Mother is to give the Father at least six (6) weeks’ notice of the days she intends to exercise those times.
For the purposes of Orders (5) and (6) above changeovers where the child goes from the care of one parent to the care of the other on Tuesdays and Fridays will take place at (omitted) Preparatory School and on all other occasions will take place at (omitted).
The child X is to spend time with the Father from the commencement of the first day of the child’s first school term as follows:
(a)In the first week of each fortnight during the school term from immediately after school on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the following Tuesday morning;
(b)In the second week of each fortnight during the school term from immediately after school on Thursday until the commencement of school the following morning;
(c)For one half of all school holidays in 2017 on a week about basis by agreement between the parties and failing agreement the second week;
(d)For one half of all school holidays in 2018 on a week about basis by agreement between the parties and failing agreement the first week commencing at 9:00am on the Saturday immediately after the last day of the school term PROVIDED THAT during the Christmas/January school holidays the child will spend time with each party on a two (2) week alternating basis; and
(e)For one half of all school holidays in 2019 and every year thereafter by agreement between the parties and failing agreement the first half in even numbered years and the second half in odd numbered years.
For the purpose of the immediately preceding Order changeovers where the child goes from the care of one parent to the care of the other parent on school days will take place at the child’s school and at all times will take place at (omitted).
The additional times spent by the child with either the Mother or the Father in accordance with Orders (4)(e),(4)(g), (5)(c), (5)(e),(6)(c) and (6)(e) are not to include Christmas Eve, Christmas Day, Boxing Day, New Year’s Eve, New Year’s Day, Good Friday and Easter Sunday in any year.
The child X will also spend time with the Father:
(a)From 5:00pm on Christmas Eve until 5:00pm on Christmas Day in 2015 and all odd numbered years thereafter; and
(b)From 5:00pm on Christmas Day until 5:00pm on Boxing Day in 2016 and all even numbered years thereafter.
The child X will spend time with the parent with whom he is not otherwise spending time in accordance with the holiday time provided for in these Orders from 5:00pm on the day prior to his birthday until 1:00pm on the child’s birthday.
In the event that the child X is not otherwise spending time with the Father in accordance with these Orders, then he will spend time with the Father from 5:00pm on the day before Fathers’ Day until 5:00pm on Fathers’ Day in each year.
In the event that the child X is not otherwise spending time with the Mother in accordance with these Orders, then he will spend time with the Mother from 5:00pm on the day before Mothers’ Day until 5:00pm on Mothers’ day in each year.
For the purpose of Orders (11), (12) (13) and (14) changeovers will take place at (omitted) or such other place as the parties may agree.
The parties must ensure that the child X attends pre-school on his designated pre-school days no later than 9:00am and that he is not collected from pre-school prior to 4:15pm other than in the event of the child’s illness or injury.
Each party must notify the other as soon as is reasonably possible of any illness or injury sustained by the child whilst the child is in his or her care.
Each party must advise the other of a telephone contact number where he or she may be reached in case of an emergency.
The parties must ensure that the child X is treated by Dr A of (omitted) Medical Centre for any illness or injury except in cases of emergency and advise the other of the name and address of any other doctor who provides medical treatment for the child.
Neither party is to use any form of physical chastisement or discipline on the child.
The parties are restrained by injunction from recording any changeover of the child where the child goes from the care of one party to the other.

AND IT IS ORDERED BY CONSENT THAT

The Father is to sign all documents and do all things necessary to enrol the child X in (omitted) School and (omitted) School.
The parties will confer by no later than 31 May 2016 to decide on a primary school for the child X to commence in 2017 and by 30 May 2024 to decide on a secondary school for the child. In the event that the parties do not agree on a primary school for the child by 31 May 2016 then the parties will attend meditation with Dr C or any other agreed mediator or counsellor to assist in the determination of a primary school for the child.
The parties are to do all acts and things necessary to obtain an Australian passport for the child and in doing so:
(a)the party requiring the passport will in the first instance obtain and complete the application and thereafter provide the application to the other party;
(b)within seven (7) days of receiving the application the other party will complete any necessary details on the application and return the document together with half the necessary fee;
(c)if the Father obtains the passport he will make the passport available to the Mother within two (2) days; and
(d)the Mother will hold the child’s passport and will release the passport to the father for the purpose of travelling with the child as agreed between the parties from time to time or in accordance with these Orders.
Either party is permitted to take the child overseas for a holiday and in doing so:
(a)The travel shall be during the period that the child would be with the travelling parent in accordance with these Orders.
(b)The parties will ensure that so far as practical these occasions are to coincide with school holidays.
(c)Each party will give the other party as much notification as possible of their intention to travel overseas with the child and in any event, will give not less than 6 weeks written notice of such intention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7405 of 2013

MR SARGENT

Applicant

And

MS SELWYN

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Father of a little boy called X who is nearly three and a half years old. X was born on (omitted) 2012. The Application is opposed by the child’s mother, although the parties did consent to some orders.
The orders that the Father seeks are set out in a Minute of Proposed Orders handed up in Court on the first day of the hearing by his Counsel, Mr Levy. The Minute of Orders replaced an earlier Minute that was handed up the first day and I have made a note on the two documents and on the earlier document I have noted in red pen “This is not the Father’s current proposal.”
The Mother seeks orders that were handed up in Court on the last day of the hearing, 13^th March. They replaced an earlier Minute of Order which was filed in Court on the first day of the hearing, 11^th March. I have noted on this document the word “superseded” to indicate that that is not the document upon which the parties wish me to rely.
Essentially, the orders sought by the Father are that the parties should have equal shared parental responsibility for X and X should spend time with the Father, first, for a period of three months on a two‑week cycle from 8:15am Monday until 6:15pm Tuesday and from 8:15am until 6:15pm each Friday and 7:15am until 5:00pm each Saturday in the first week and from 8:15am until 6:15pm each Monday and from 8:15am on the Friday, going over till 5:00pm on the Saturday.
The Father seeks an increase for a further three‑month period to go until 1^st September 2016 and then from September 2016, in a two‑week cycle, from 8:15am on Monday till 6:15pm on Friday in week 1 and from 6:15pm on Friday until 8:15am on Monday in week 2 and then from the commencement of the child’s schooling for a further period and then a further period from 2017 until 2019 and then a further period from 2019 onward.
Against this, the Mother seeks orders that the parties should have equal shared parental responsibility and that X should live with her. She seeks orders for a period until 30^th June 2015 which proved to be unnecessary and then for a period from 1^st July 2015 to 1^st January 2016 then from 1^st January 2016 till the conclusion of 1^st July 2016 then from 1^st July 2016 to the beginning of school and then from the commencement of school.
There were other orders sought and I note that the father consented to those orders. The Father, according to my notes, consented to the Mother’s proposed Order 7, which said:
The father will sign all documents and do all things necessary to enrol the child in (omitted) School and (omitted) School.
The Father consented to Order 8, which said:
The parties will confer no later than 31 May 2016 to decide on a primary school for the child to commence in 2017 and by 30 May 2024 to decide on a secondary school for the child. In the event that the parties have not agreed on a primary school for the child by 31 May 2016, then the parties will attend mediation with Dr C or any other agreed mediator or counsellor to assist in the determination of the child’s primary school.
My notes indicate that the father consented to the Mother’s proposed Order 11, relating to obtaining an Australian passport for the child and Order 12, relating to either party being permitted to take the child overseas for holidays, and Order 14, requiring the parties to ensure that X attends on the same doctor, dentist and any other health practitioner.

Evidence

The Father relied on the following affidavits:
a) his affidavit of 27 February 2015;
b)the affidavit of Ms L, his sister, of 26 February 2015; and
c) the affidavit of Ms H, who is also his sister.
The Mother relied on:
a)her affidavit of 27^th February 2015; and
b)the affidavit of her mother, Ms C[1] sworn on 17^th January 2014.
[1] The mother’s name is spelled two different ways in her affidavit, but it is reasonable to assume that her middle name of “(omitted)” is spelled the same way as that of her daughter
The Court was also informed that the Mother was seeking to rely on the Family Report prepared by a Family Consultant, Ms M.
The Father gave oral evidence and was cross‑examined by Ms Boyle of Counsel, who appeared for the Mother. The Mother gave oral evidence and was cross‑examined by Mr Levy of Counsel for the Father. The Family Consultant, Ms M gave oral evidence and was cross‑examined by Mr Levy for the Father and Ms Boyle for the Mother.
The Father’s two sisters, Ms L and Ms H, were not required for cross‑examination nor was the child’s maternal grandmother, Ms C.
It was the Father’s evidence that he was born on (omitted) 1962 and that the Mother was born on (omitted) 1967 in (country omitted).
The parties were married on (omitted) 2010. They separated under the one roof on or around 15^th October 2013 and physically separated on 7^th December 2013.
The parties are divorced. The Mother filed an application for divorce on 20^th January 2015 and the Father deposed that it was his understanding that the divorce was granted on that day and became final on 21^st February 2015.
There is one child of the marriage, X, who was born on (omitted) 2012. There are no other children.
There were previous proceedings in the Family Court. Interim orders were made by his Honour Watts J on 20^th December 2013, by Senior Registrar Campbell on 22^nd January 2014 and on 4^th March 2014 by her Honour Rees J.
It was the Father’s evidence that before the separation, both he and the mother cared for X on a daily basis. After X was born, the Mother suffered from health problems. Often, when X was between two and five months old, the Mother worked late in the evening to approximately 10:00pm. It was the Father’s evidence that at times, the Mother would stay overnight with her parents but he would have the care of the child. The Mother, from time to time, received medical treatment for breathing difficulties. The Father deposed, in a considerable amount of detail, the amount of time that he spent with the child and the activities that he put in with the child.
The parties separated under the one roof on or about 15^th October 2013, but there had been difficulties between the parties, on the Father’s evidence, earlier on. He deposed to several arguments between them but what brought the matters to a head was when he went to a work Christmas party on 7^th December 2013. The Mother drove him to the railway station so he could catch a train into the city. He arrived home at approximately 12:15am, early the next morning, found the front light of the unit was on and there was a note affixed to the door reading:
“I, Ms Selwyn, am the sole registered proprietor of this unit and do not consent to the locks of this property being changed.”[2]
[2] Affidavit of Mr Sargent 27.2.2015 at paragraph [34]
When the Father attempted to unlock the door, he was unable to do so. He eventually obtained entry to the home and when he did, he found that neither the Mother nor the child were present. He saw a text message that he had received from the Mother on his telephone. It was recorded at approximately 9:54 pm the evening before and the message said:
“Mr Sargent, I’m sorry that it has come to this, but please do not call or try to contact me as I do not want to communicate with you directly. Please have your solicitors contact mine on Monday. I will make arrangements next week for you to collect your personal items. Ms Selwyn”.[3]
[3] Ibid
The situation did not improve and the Father telephoned the police. The police arrived and asked him to identify himself. Eventually, on the Sunday morning, he spoke to a sergeant at the (omitted) Police Station who said to him:
“I have spoken with Ms Selwyn. I’ve arranged for her brother to attend your home with keys so you can collect a few personal belongings”.[4]
[4] Ibid at [37]

The parties were living separately from then on after those rather dramatic circumstances and made arrangements for the Father to spend time with the child.
The Father deposed at paragraph [56] of his affidavit that X has a very close and loving relationship with both the Mother and he and that he sought orders that would encourage and facilitate that special bond that they have with the child.
At paragraph [62] he deposed that he currently lives in a rented two‑bedroom apartment at (omitted) and X has his own bedroom. It was his intention to move closer to the city.
The Father deposed that he had had difficulties communicating with the Mother and there were particular difficulties, as set out in some detail in paragraphs [71] through to [80] of his affidavit about changeover.
The Father was cross‑examined by Ms Boyle of Counsel and said that he disagreed with the Mother on a number of issues. He said the Mother had asked him to leave the home and suggested to him that he attend mediation but he said he declined the initial choice of a mediator. He was asked about the mechanics of his proposal including times of changeover.
The Father said in his cross‑examination there had been a great number of emails relating to X particularly about the child being upset at changeover and being reluctant to return to the Mother’s care. The Father agreed that the way his parents acted on changeovers may make X more anxious. The Father was shown emails which were tendered. The Father conceded in cross‑examination that on one occasion, he had taken the child X to a dentist without telling the Mother. The Father agreed that X obtained a benefit from going to day care on two consecutive days a week.
Cross‑examination of the Father continued on the second day of the hearing. He indicated that he agreed with some proposals about changeover suggested by the Mother but not others, rejecting a changeover at (omitted) Preschool. He did not believe that changeovers should continue in the same way as they were happening and suggested changeovers at home.
The Father conceded that he had enrolled X in soccer without telling the Mother. He conceded that he had enrolled X in swimming without telling the Mother. He said he did not believe that he was rigid or inflexible. He said that he had rung the Department of Community Services, now the Department of Family and Community Services, for advice about changeover.
My contemporaneous notes record my impressions of the Father in his evidence as being inflexible and controlling and appearing to have a closed mind. There were no other witnesses for the Father.
The Mother relied on her affidavit of 27^th February 2015. She set out the history of the relationship with the Father and noted that X was born on (omitted) 2012, six weeks premature, by way of emergency caesarean. She said that she had been the child’s primary carer since birth. She breastfed him and expressed milk for six months which was supplemented with formula. She sterilised his bottles and prepared his formula. She and mother did almost all of the bathing.
The Mother’s evidence was that from February 2013 she had been working about two days per week. She said that when she was not at work, she cared for X. She said that if the Father, referring to him as “Mr Sargent”, cared for X, it would generally be for short periods of one to two hours when she was unavailable.
It was the Mother’s evidence that she had been the one who organised activities for X and taken him to them. She said, particularly, given that X is an only child and does not have any cousins she thought it important to take him to activities where he would interact with other children.
The Mother referred to the fact that from December 2012, the Father started compiling a daily schedule of what he called “X‑free time”. He sent that schedule to the Mother throughout 2013, purportedly recording times that he considered that the Mother should have been caring for X but was not. That included times that her mother was caring for X. He then contended, she said, that she owed him X‑free time.
The Mother described difficulties in communication with the Father about the child, saying at paragraph [26] of her affidavit:
Mr Sargent is dismissive of my advice about health issues for X. This was particularly when X had a febrile illness. I said to Mr Sargent, “He needs to be monitored and have paracetamol regularly to keep his fever down.” I have taught Mr Sargent how to administer paracetamol to X.[5]
[5] Affidavit of Ms Selwyn 27.2.2015 at paragraph [26]
However, the Mother deposed that when she would ring the Father to check on the child when he was sick, the Father would say things such as, “No, I forgot,” or “It’s not necessary. He’s tough.”[6]
[6] Ibid
The Mother’s evidence‑in‑chief is that changeovers between the Father and her have been problematic from when the Father stopped taking X to preschool from February 2014 to November 2014, then from 19^th January 2015 to the date of the hearing. She said that she had focussed on making handovers quick and positive and would speak enthusiastically to the child about spending time with the Father but immediately prior to leaving, the child would often say, “No Daddy, no daddy anymore.”[7] The Mother deposed that, generally, when the Father sees X and her approaching him, she sees him checking his watch several times. She went on to say at paragraph 58
On some occasions, Mr Selwyn has run away in the opposite direction down a street and returned at the exact minute of the handover. This occurs when I am early for handover. When X sees Mr Selwyn run away, he cries and calls out “Daddy,” and he is distressed. Initially, I was also confused by Mr Selwyn’s behaviour but said, to placate X, “Daddy is playing hide‑and‑seek. Let’s wait until he returns and say ‘Boo’”. I have continued this game with X when Mr Selwyn runs away. When I see him approaching, I say, “Let’s run to daddy and catch him.” By the time I put him in Mr Selwyn’s arms, X is laughing and not distressed.
[7] Affidavit of Ms Selwyn 27.2.2015 at [57]
The Mother was cross‑examined by Mr Levy of Counsel for the Father. He asked her about comments made in the Family Report, particularly at paragraph [10]. The Mother conceded there was a strong bond between X and the Father and she said that she did not criticise the Father’s parenting ability. She was of the view in her oral evidence that fewer or less changeovers would make X more settled. She said X would eventually benefit from having more time with his father, including overnight time. X has moved on from the current arrangement. She agreed X has a close and loving relationship with his paternal grandparents. She said he appears to have a good relationship with his two paternal aunts. The Mother said that she did not agree that for the majority of the time, the communication between the parties has been polite.
My contemporaneous notes of the Mother were that she appeared to be more flexible and less rigid and more prepared to consider that the child has a good relationship with his father. She appeared to me to be a good witness and I formed the view at the time that she was not shaken in cross‑examination.
The only other witness who was cross‑examined was the Family Consultant. Of the witnesses who were not required to cross‑examination, the Father’s sister, Ms L, in her affidavit gave evidence about the rather traumatic circumstances of the separation between the Father and the Mother in that period of time in early December 2013. She also went on to record her observations of the child with the Father.
The Father’s other sister, Ms H, also gave evidence in her affidavit of the circumstances when the parties separated on 8^th December 2013. She went on to refer to more recent activities and commented on her interaction with the father and X, saying that they would play a game of hide‑and‑seek. The Father would count to 10 and X and Ms H would hide and wait for the Father to find them. She described X as having a great imagination and currently likes action figures. She also observed that the child was becoming more wilful and independent as he gets older.
The maternal grandmother, the Mother’s mother, Ms C, deposed in her affidavit filed in the Family Court on 21^st January, having been sworn on 17^th January 2014. She deposed to the fact that her grandson X was born on (omitted) 2012, six weeks premature. Upon the Mother’s discharge from the hospital on about (omitted) of that year, the Mother and Father came to live with her and her husband and when the child X was released from hospital at the end of (omitted) 2012, he also came to their house.
The Family Report was prepared by Ms M. The Report was completed on 13^th January 2015. The Family Consultant recorded that she interviewed the Mother and the Father. She observed the child on 14^th March 2014 both with the Mother and with the Father and she interviewed the Father and the Mother on 9^th December and observed the child with each parent on that day. She had a telephone discussion with the Mother on 16^th December 2014 (It says 2015, but it is clearly a typographical error). She had a telephone discussion with the Father on 17^th December. The Family Consultant noted the current arrangements for the child and noted the applications and proposals.
The Family Consultant identified the issues in dispute as:
a)when X’s time with his father ought to increase; and
b)whether or not X ought eventually to live with his father for eight days and his mother for six days or with his mother for nine days and his father for five days.
The Family Consultant identified three issues during the assessment:
(1) the parents’ ongoing difficulty in formulating appropriate times for X’s time with the father to increase;
(2) the potential negative impact on X of the current distance between his parents’ homes; and
(3) the parents’ different views of the history of X’s parenting prior to their separation.
In her interview with the Father and her observations, the Family Consultant described the Father as continuing to present as a proud parent who takes great delight in all aspects of X’s development. The Father expressed a concern about the number of changeovers X experiences each week in moving between his parents and believes that a move to additional overnight periods with him would be experienced as more settled for X.
The Family Consultant described the Father as seeming to have a very structured approach to X’s time with him, having documented the time of each of the different activities that they undertake. The Father was adamant to the Family Consultant that he took more responsibility for X’s care during his infancy than the Mother did.
The Mother was described by the Family Consultant as remaining a proud mother and seemingly emotionally attuned parent to X. She believed that X was settled in the current parenting arrangement and based on advice which she said that she and the Father had received from Dr C, a child psychologist, believed that the next stage for X to commence spending more time with his father ought to occur in early 2015.
At paragraph [19] of the Family Report, Ms M noted that during the telephone conversation with the Mother on 16^th December 2014, the Mother said she was open to moving to an arrangement in either mid‑2016 or mid‑2017 based on Dr C’s alleged advice, which would, from her perspective, represent the longer‑term parenting arrangements. At paragraph [20] the Family Consultant said in her report:
Ms H is adamant that the parents need to have a structured parenting arrangement as she asserts that at this stage, Mr Sargent has a somewhat inflexible approach to any changes.[8]
[8] Family Report 22.1.2015 page 8 at [20]
As for the child and his relationships, the Family Consultant noted that X arrived with his mother and was observed in the waiting area with both of his parents. The child became distressed as his mother attempted to leave and was comforted by the Father and again seemed to settle. The Family Consultant noted that after a period, she returned to the child care to collect the Father, but:
Unfortunately, Mr Sargent seemed to have been unable or had not understood that he needed to settle X by, say, involving him in an activity or game or seeking the assistance of the child care worker. Mr Sargent was holding X and speaking to him softly, and it was evident that X was not ready to separate from his father.[9]
[9] Ibid page 9 at [23]
The Family Consultant reported that when she went to collect Ms H for her interview, it was apparent that the Mother had taken a very different approach to settling X, having engaged with him in a dance activity with other children. The child remained somewhat reluctant to allow his mother to leave him but, nonetheless, accepted comfort from the child care worker.
The Family Consultant recorded that the Mother, during the observation of her and X, injected a quiet calm into his play. When the child collected his father from the waiting room and brought him into the room of the Family Consultant, the child did not initially settle into any particular activity. The Father, while interacting with the child, nonetheless, suggested a range of activities they could do without, seemingly, allowing X sufficient time to choose one.
In her evaluation, Ms M stated that:
X continues to be a child whose parents take great pride in his development achievements and personality traits. Despite the fact that X’s last increase of time with his father in early 2014 coincided with him commencing day care, he seems to have, and his parents report that he has, adjusted to the range of changes he faced at that time.[10]
[10] Family Report page 11 at [27]
The Family Consultant noted that the Father’s concerns about the number of times X currently moves between his parents each week are appropriate. Normally, a child as young as X needs frequent time with the parent with whom he is not primarily living, and they also benefit from fewer changeovers each week. Notwithstanding his comments, however, the Father did not indicate that X was not coping with the current arrangements.
At paragraph [29] of the Family Report, Ms M reported that Ms H’s proposal for X’s time with his father to increase is broadly appropriate. Whether or not a child’s time increases in three or six‑monthly blocks is primarily arbitrary. Such increases ought to reflect the child’s ability to cope with the longer periods emotionally and each parent’s ability to provide the child with an emotionally attuned and secure environment. The Family Consultant said that X continues to demonstrate a secure relationship with each of his parents, although the parents have a different parenting style.
The Family Consultant took the view that whilst X has lived primarily with his mother, he would benefit from having more regular overnight periods with his father, such time increasing from one night each three weeks to one night each week. She went on to say at paragraph [32]:
While neither parent raised the option of X eventually living in an equal‑time parenting arrangement, the fact that their proposals for X’s longer‑term parenting rests on either an eight‑day/six‑day split or a nine‑day/five‑day split might indicate that the option of an equal‑time parenting arrangement ought to be considered as the eventual arrangement for X.[11]
[11] Family Report page 14 at [32]
The Family Consultant recommended:
(1) that the parents have equal shared parental responsibility for X,
(2) that X live with his mother and
(3) that X’s time with his father continue to increase to one overnight period each week and that from mid‑2015, such time further increase so he is spending at least two consecutive nights with his father each week and with additional time every three to four months so that by mid‑2016, X’s time with each parent reflects the parenting arrangements which will be in place during his first year at school.[12]
[12] Ibid at pages 14-15 at [35]-[37
The Family Consultant gave oral evidence and was cross‑examined first by Mr Levy of Counsel for the Father and then by Ms Boyle of Counsel for the Mother. In her cross‑examination by Mr Levy, the Family Consultant noted that the Mother’s proposal did not go beyond four nights a fortnight. If it was going to be week‑about, the parties would prefer to moving to the changeover and to Friday. She said the ideal situation, if not week‑about, would be Thursday to Monday or Thursday to Friday. The constant feedback she got from children and parents was that consistency of the same‑day changeover is something that kids like.
In cross‑examination by Ms Boyle, she conceded that the issues identified to her were that X had more difficulty in transferring from father to mother than transferring from mother to the Father. Ms M said that she just had a problem with both parents’ timing of changeovers. It did not make sense to have a changeover at 8:00am in the morning or after 4:30pm in the afternoon. X would need to be back with the other parent for more than 15 minutes before his bedtime. For X to be picked up at (omitted), she did not see that it was in his best interests to be picked up at 6:15pm. When asked if five nights a fortnight was in X’s best interests, Ms M said at this point, yes, but she could not predict what it would be like in 18 months. She noted that he had a very good relationship with both parents and he needs more time with his dad.

Submissions

Mr Levy of Counsel for the Father submitted that the Father’s oral evidence was measured, responsible and insightful and he made a concession where it was required. I might comment at this stage that that was not my impression of the Father’s evidence. My view was that the Father was rigid and inflexible. Mr Levy submitted that the Mother showed an inability to negotiate suitable overnight time for the child with the Father. He said that the Court could not find that the Father had pinched the child or lay on him, as had been alleged. She said the Father had moved on from the particular stresses that he did not make an ambit claim, that he proposed a significant compromise from his original proposal and had listened to Ms M and also to Dr C.
It was submitted by Mr Levy that the Father demonstrated in his oral evidence considerable insight. At times, the Father said that the parents over‑communicate. It was his view that Ms M was quite supportive of the position taken by the Father. He noted that both parents sought equal shared parental responsibility and therefore, section 65DAA of the Family Law Act 1975 (Cth) was enlivened. Referring to the factors under section 60CC of the Act, he referred to the practical difficulty, the picking‑up arrangement which had now been amended. Everyone agreed that X was thriving, he was a happy and well‑adjusted, inquisitive child, he submitted. He is a robust little boy. Mr Levy suggested that equal time would be appropriate once the child attended school. He also submitted that it could not be in the child’s interests to have a changeover at preschool on a day when he did not attend preschool.
Ms Boyle of Counsel for the Mother submitted that, generally speaking, the parties were polite and responsible and articulate. She said there were factors that would mitigate against an equal‑time arrangement, being communication. There were a lot of words but a real gap. She said the Father could not concede that there was a problem with the lengthy emails sent at various times of night. The issue was whether the parties’ communication was effective. She said there was no evidence to support a finding that the communication between the parties would further improve. She noted that the Father did not tell the Mother about enrolling the child in soccer or swimming even though it was within the time that X was with him.

Ms Boyle was of the view that the Father’s proposed changeover times late in the evening were problematic. She commented about the Father having telephoned the Department of Family and Community Services about changeover. It was her submission that the Father has a real difficulty in separating from X and could not separate his needs from those of the child. It was further submitted the Mother’s proposals were clearly moving to substantive and significant time. The Mother proposed an increase of time of overnight time each fortnight from September. The Father rejected the proposal because it would involve a decrease of four hours of daytime time. Ms Boyle submitted that the most significant valuation of the nature of the relationship between each party was their approach to discipline. She said there was a problem with different standards in the two households.
In considering applications for parenting orders, the Court must consider the matters under Part VII of the Family Law Act 1975. In particular, the Court must consider section 60B, which sets out the objects of Part VII and the principles underlying those objects. Section 60CA of the Act requires the Court to regard the best interests of the child as the paramount consideration.
Section 60CC assists the Court to determine what is in a child’s best interests, noting that the primary considerations are in subsection 60CC(2) and additional considerations are in subsection 60CC(3). The primary considerations involve a balance between the need for the child to have a meaningful relationship with each parent and the need to protect the child from abuse, neglect or family violence. The additional considerations are in subsection 60CC(3) and include such things as the views of the child, although in this case, they would be views that would not be given much weight.
Section 61DA of the Act refers to the presumption that equal shared parental responsibility is in the best interests of the child. I note that each parent seeks equal shared parental responsibility and I will order accordingly.
Section 65DAA requires that if equal shared parental responsibility is ordered, the Court must consider whether it is both in the best interests of the child and reasonably practicable for there to be an equal‑time arrangement. If that is not the case, the Court must then consider, under subsection (2), whether it is in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent.
I have considered all of those matters insofar as they are relevant.

Conclusions

My conclusions are that an equal‑time arrangement is not in the child’s best interests and I have concerns about its reasonable practicability. The proposals for the Father’s time with the child probably do not equate to substantial and significant time at this stage but as they increase, they most certainly will and I would consider that that would be in the child’s best interests.
The Court has been given two competing proposed Minutes of Order: that handed up on 11^th March by the Father’s Counsel, being the second minute of order and that handed up on 13^th March by the Mother’s Counsel replacing earlier orders. I am of a view that whilst it is not necessary for the Court to prefer one approach to that of another, the Court must, as set out by the High Court of Australia in MRR v GR,[13] consider what orders are in the best interests of the child. Nevertheless, the Minutes of Order proposed by the mother appear to me to be in the best interests of the child.
[13] (2010) 240 CLR 461; [2010] HCA 4
Those orders propose that the parties have equal shared parental responsibility for the child, that the child live with the Mother and the child spend time with the Father from 1^st July 2015 to 1^st January 2016 in a two‑week cycle:
a)in week 1, from Tuesday 8:30am to 5:30pm, on Thursday from preschool between 4:15pm and 6:00pm to 5:30pm Friday;
b)in week 2, from Tuesday 8:30am to 5:30pm and from Friday 8:30am to 6:00pm Saturday.
c)Further, to facilitate handovers of the child on Tuesdays and Fridays, the parent delivering the child will deliver the child to (omitted) Preparatory School, (omitted) and the parent collecting will collect the child from (omitted) Preparatory School.
d)Further, the collecting and return of the child on Saturdays when preschool is not available should be at (omitted).
e)Further, two periods of four days, three overnights, from 9:00am on Day 1 to 5:00pm on Day 4, with the Father to give the Mother at least six weeks’ notice of the days he intends to exercise the times provided for in the order and that the periods be at least two months apart and include the time the child spends with the Father on either a Thursday, Friday or Saturday in accordance with the orders.
f)Further, the Father’s time be suspended for two periods of four days at least two months apart, with the Mother to give the Father at least six weeks’ notice of the days she intends to exercise those times.
There are further proposals for the period 1^st January 2016 to the conclusion of 1^st July 2016, again, from 1^st July 2016 to the beginning of school, then from the commencement of school and further orders, to some of which the Father has consented.
In my view, those orders are more in the best interests of the child than the orders proposed by the Father. As I said, it is open to the Court to formulate other orders which the Court believes to be in the best interests of the child. In this case, however, I do not consider that that is necessary and with the modifications to which I have referred, I propose to follow the basic approach of the Mother’s orders and I will order accordingly.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 2 August 2016

[2016] FCCA 1987

28 July 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness