Sarin and Sarin - [2010] FMCAfam 1325

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SARIN & SARIN

[2010] FMCAfam 1325

FAMILY LAW – Parenting – consideration of shared care of child under two years – role of paternal grandmother – allegations of abuse and assault of mother by paternal grandmother.

Family Law Act 1975, ss.60B, 60CA, 60CC

Applicant:

MS SARIN

Respondent:

MR SARIN

File Number:

MLC 4115 of 2010

Judgment of:

Whelan FM

Hearing dates:

7, 8 & 9 September 2010

Date of Last Submission:

9 September 2010

Delivered at:

Melbourne

Delivered on:

3 December 2010

REPRESENTATION

Counsel for the Applicant:

Ms O'Connell

Solicitors for the Applicant:

Fiona R McGregor

Counsel for the Respondent:

Ms Wheeler

Solicitors for the Respondent:

Vernon Da Gama & Associates

ORDERS

All existing parenting orders be discharged.
The parties have equal shared parental responsibility for the child [X] born [omitted] 2009.
The child live with the Applicant Mother (“the mother”).
The child spend time with the Respondent Father (“the father”) as follows:
(a)each alternate weekend from 9.00am on Saturday until 5.00pm on Sunday commencing the weekend following the date of these Orders;
(b)on the basis that the father is able to arrange his work commitments to spend the time with the child on each Wednesday from 10.00am until 5.00pm;
(c)in the event that the father cannot make the arrangements required by 4(b), each Wednesday from 5.00pm until 7.30pm.
For the purpose of order 4, the father must be in substantial attendance at all times.
For the purposes of order 4(a), this time shall be increased as follows:
(a)when the child is two years of age, from 5.00pm on Friday until 5.00pm on Sunday; and
(b)when the child is three years of age and older, from 5.00pm on Friday to 9.00am on Monday morning.
For the purpose of orders 4(b) and/or (c), that the paternal grandparents are not to be in attendance during these times.
For the purposes of order 4(c), unless otherwise agreed, the father is to spend time with the child at a location in close proximity to the mother’s residence.

Special Occasions

Notwithstanding any other order herein, the child shall spend time with the mother and father as follows:
(a)with the mother from 9.00am until 5.00pm on Mother’s Day (if the child is not already spending time with the mother on Mother’s Day);
(b)with the father from 9.00am until 5.00pm on Father’s Day (if the child is not already spending time with the father on Father’s Day);
(c)with the mother on the mother’s birthday and on the child’s birthday from 9.00am to 1.00pm (if the child is not already spending time with the mother);
(d)with the father on the father’s birthday and on the child’s birthday from 3.00pm until 7.00pm (if the child is not already spending time with the father);
(e)with the mother from 9.00am to 12.00pm on the day of the festival of [omitted] (if the child is not already spending time with the mother on this day);
(f)with the father from 3.00pm to 6.00pm on the day of the festival of [omitted] (if the child is not already spending time with the father on this day);
(g)with the mother from 9.00am to 12.00pm on the day of the festival of [omitted] (if the child is not already spending time with the mother on this day);
(h)with the father from 3.00pm to 6.00pm on the day of the festival [omitted] (if the child is not already spending time with the father on this day);
(i)with the mother from 5.00pm on Christmas Eve until 5.00pm on Christmas Day commencing in 2010 and in each alternate year thereafter;
(j)with the father from 5.00pm Christmas Day until 5.00pm Boxing Day commencing in 2010 and in each alternate year thereafter;
(k)with the mother from 9.00am to 12.00pm on New Year’s Day (if the child is not already spending time with the mother on this day);
(l)with the father from 3.00pm to 6.00pm on New Year’s Day (if the child is not already spending time with the father on this day); and
(m)as otherwise agreed.
For the purposes of order 9, the father must be in substantial attendance at all times.

Restraints

Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the child, and from permitting any other person so to do.

Provision of Information

Each party notify the other as soon as practicable of any hospitalisation or other serious medical event regarding the child, including details of any treating medical practitioners, specialist or hospital attended by the child whilst in the care of the other parent and the parties shall keep the other parent updated in relation to any illness and the progress of any treatment received whilst in their care.
The mother and father authorise, by this order, the schools or day care centres attended by the child to give each parent information about the child’s educational progress and other school related activities and supply then with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
The mother and father be at liberty to attend and to be involved in any and all school events and extra-curricular activities to which parents are usually invited.

Collection arrangements

For the purpose of implementation of these orders, unless otherwise agreed between the parties, the father collects the child from the mother’s residence and returns the child to the same address.

Counselling

Pursuant of section 13C of the Family Law Act 1975, the mother and the father:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other parties or their solicitors.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 4115 of 2010

MS SARIN

Applicant

And

MR SARIN

Respondent

REASONS FOR JUDGMENT

Introduction

This is a matter in which final parenting orders are sought by the mother with respect to the child [X] born [omitted] 2009 (“the child”). In her amended initiating application filed on 29 July 2010 the mother sought that the parents have equal shared parental responsibility for the child, that he live with her and that he spend time with the father each alternative weekend from 10.00am Saturday until 4.00pm Sunday and on each Wednesday from 9.00am until 1.00pm. In her oral evidence, the mother said that she was prepared to agree with a shared care arrangement provided the child was not brought into contact with the paternal grandmother. The father sought orders that the child live with each of the parents on a week about basis.

Background

The mother was born on [omitted] 1984 and is now 26 years of age. The father was born on [omitted] 1977 and is aged 33 years. The parties were married in [country omitted] in an arranged marriage, some 11 days after they first met, on 18 November 2005. At the time, the husband was resident in Australia and returned to Australia 15 days after the wedding. They did not see each other again until the wife arrived in Australia almost two years later on 8 November 2007.
There is a dispute between the parties concerning events during those two years. The mother says that the father and his family were reluctant to register the marriage and proposed that the mother come to Australia on a student visa rather than a spouse visa. She also claims that the father’s family demanded a dowry payment from the mother’s father and this became a source of conflict as he refused to pay.
The father states that the delay in the mother coming to Australia was caused by her reluctance to have treatment for tuberculosis which was discovered as part of the medical examination for her visa. The suggestion that she come to Australia on a student visa was made to speed up the process. The father says that he did not visit the mother in [country omitted] during this time because of his work commitments.
On arriving in Australia, the mother commenced living with the father at his home in [suburb omitted]. Also resident in the house were the paternal grandparents and for a time the father’s brother. Initially, the father was working in New Zealand for four days per week.
The mother’s evidence is that from the outset her life was controlled by the paternal grandmother. She was not permitted to leave the family home alone. She was unable to make private telephone calls. She was forced to sign letters and emails to her family prepared by the father’s family. The mother says that she also had no independent income or access to money.
In June 2008, the mother’s pregnancy was confirmed. In December 2008, the mother left the family home without telling the father and went to her uncle and aunt’s place. She says that she left because of the pressure put on her by the father’s parents, including the paternal grandmother calling her a prostitute. She returned a few days later after seeking assistance from the [country omitted] Association.
The mother alleges that on 9 February 2009, when she was eight months pregnant, the father physically assaulted her, dragging her from the bed to the floor. She states that the paternal grandparents witnessed the assault and did nothing. Both the father and his parents deny that the assault occurred.
After the birth of the child [X], the mother alleges that the father refused to allow her to telephone her parents to tell them about the birth. She was also not allowed to call her brother to wish him a happy birthday. The paternal grandmother took control of the child. She was critical of the mother’s capacity to care for the baby and had the child sleep with her and the paternal grandfather. The father supported the grandmother’s actions. The child was put on the grandparent’s Medicare card.
In April 2010, following a phone call to her, the mother says there was an incident where, after some mutual verbal abuse, the paternal grandmother assaulted her. She says that she was slapped, kicked and hit with shoes on several occasions during the day. The father observed these events but did not assist her. When she tried to leave the house, he and his mother prevented her. The mother says that she called her father in [country omitted] on a secret telephone given to her by family friends after she had left the home in December 2008 and asked him to call the police. The father and paternal grandparents deny that any violence occurred.
On 17 April 2010, two police officers visited the house as a result of a request from friends of the family who were concerned about the mother’s welfare. The mother and father were not present. They were called by the paternal grandmother and returned to the house.
Evidence about what occurred on 17 April 2010 was given by the mother and father, the paternal grandparents and the attending police officers. The mother reported to them that she was not allowed to leave the home, that she was only allowed to use the phone under the supervision of the paternal grandparents and that she was abused by the paternal grandmother. The mother, however, chose not to leave the house on that occasion.
On 3 May 2010, at the request of someone from the [country omitted] Consulate, the police again visited the home and on this occasion the mother left with them. The father would not allow her to take the child, however, on 6 May 2010 she obtained an order from this Court as a result of which the child was handed over to her at the [omitted] Police Station.
Interim orders were made on 9 June 2010. On 8 July 2010, the father issued a contravention application when the wife failed to make the child available to spend time with him on the previous day. The mother says that she misunderstood the terms of the order.

The parties

The applicant mother moved to Australia to live with the father and his parents some two years after she was married in [country omitted]. She states that while there were some happy times in the marriage, she was isolated and controlled by the father’s family. She claims that she was abused and assaulted by the paternal grandmother and on one occasion by the husband.
She attributes her unhappiness to the ongoing dispute between her parents and the father’s parents about a demanded dowry and the failure of the father to support her in her conflict with the paternal grandmother. She blames the paternal grandmother for the failure of the marriage.
The mother also accuses the father of drinking regularly and to excess. She accuses him of assault but says that she forgave him for that. She wanted them to stop living with the paternal grandparents but he “always supported his mum”[1].
[1] Transcript (7 September 2010) p.30 at paragraph 35.
The mother currently lives with the child in private accommodation near her aunt’s place. She is engaged full time in caring for her son. She states that she wants her son to have time with his father but is strongly opposed to this including the paternal grandparents. She accepts that the child is fond of his grandparents but is concerned that the grandmother will turn her son against her if they spend time with him when she is not around – “I don't want my son to go against me and I feel that if I’m not around she will do that”[2].
[2] Transcript (7 September 2010) p.21 at paragraphs 27-28
There were contradictions in the mother’s evidence and inconsistencies. I am satisfied that she exaggerated the attacks she says were perpetrated on her by the father and paternal grandmother. I am satisfied however that she was abused by the paternal grandmother and that she felt isolated and controlled by her inability to leave the house alone, her lack of access to any independent source of finance and the influence the paternal grandmother had over both the father and her own son.
There was an air of unreality about much of the father’s evidence. He denied that he drank, describing the fact that he lost his licence for 11 months in late 2007 as “the only time” he drove under the influence. He admitted that he was engaged to another [nationality omitted] woman in 2003 that he had sponsored to come to Australia. He denied that she had been sent back after he and his mother alleged that she was a slut saying that she went back to [country omitted] because she had an affair with another man.
In the father’s view, the marriage was working and he was never aware that the mother was miserable. The father denied that the mother had no access to money, saying that he gave her money whenever she needed it and provided her with the things she wanted. He referred to a joint account that she had access to in which he put money from time to time but which he closed down in December 2008. He was not sure that the mother had ever accessed this account.
The father stated that the mother was free to go anywhere she wanted. She did not go shopping or to the doctor by herself because she could not drive. He stated that the mother had access to the internet and that he had given her a mobile phone in 2008. He denied that after the mother left in 2008 he had kept this in a locked drawer.
The father denied telling the police that the mother could not leave when they visited on 17 April saying that he said “I forbid her from leaving with the child”.
The father also gave evidence about what occurred between the mother and the paternal grandmother, even when he was not present, stating that he knew the situation in his house. He stated that the only pressure on the mother was that imposed by her father who wanted him to sponsor the mother’s brother to come to Australia. The pressure was nothing to do with the marriage. He stated that the mother left in December 2008 because he had found a CD with obscene photos of her and she returned because she “realised her mistake being pregnant and out there on her own”.
The father stated that the paternal grandmother had had shared care of the child and that his mother had cared for the child overnight for the first 3 months of his life because he had reflux and would wake up many times in the night interrupting their (his and the mother’s) sleep.
The father stated that the paternal grandmother had assisted the mother in every possible way she could and that his parents would assist him in every possible way to help him raise his son. The father stated that he was currently working 9.00am to 4.30pm Monday to Friday but that he would adjust his employment conditions based on the orders made. He was willing to resign if he needed to if that gave him his child for seven days. When he was working he preferred to have the child taken care of by the paternal grandparents.
The father stated that he resigned from his previous employment because of the pressure from the mother to sponsor her brother to come to Australia. He did not discuss his resignation with her.
The father stated that he retained some of the child’s clothing, a stroller and his cot when requested to provide them to the mother because he believed that his son was going to return back to him.
The evidence of the paternal grandparents was limited and unsurprisingly was consistent with that given by the father. In his own evidence, the father described the family as “close-knit” and sharing everything. The paternal grandfather could not recall his son ever assaulting the mother and had never witnessed his wife assaulting her. He denied ever demanding money from the mother’s parents and stated that he and his wife took the mother shopping because she could not drive.
The paternal grandfather stated that the child had slept with him and his wife for the first nine months because they (the mother and father) needed rest. He could not recall that the mother was unhappy in his household.
The paternal grandmother denied assaulting the mother or seeing her son slap her. She denied the mother’s allegations about his drinking. She also denied the mother’s allegations about the restrictions on her liberty and privacy. She described herself and the mother as having a very good relationship – “we all were [a] very happy family, and our house was full of happiness”[3].
[3] Transcript (8 September 2010) p.167 at paragraph 18
The paternal grandmother stated that the child had slept with her most nights for six or seven months because they (the father and mother) really wanted a good sleep. She denied being critical of the mother stating that she taught both the mother and the father how to change nappies, how to give the baby a bath, everything to both of them. To her, the mother was like a young girl and she could teach her things.
In relation to the care of her grandson, the paternal grandmother stated that whatever her son asked, she would help him.
The demeanour of the paternal grandmother and the quite demure way in which she responded to questioning contrasted with the description of her behaviour given by the mother. It is also at odds with the impression of her formed by the police officers who attended the home on 17 April 2010.
Sergeant W spoke to the grandparents while Sergeant M was speaking to the mother and subsequently spoke to both the father and the mother with Sergeant M. He described the paternal grandmother as “very domineering and one would say she wears the pants in the family, both families”[4]. He later stated: “I would say that his mother is very controlling [and] I believe that he [the father] is controlled by his mother”[5]. He also described her as “the one who was doing all the talking”[6]. He formed the view from the mother’s response when the paternal grandmother spoke to her that the mother was scared of her.
[4] Transcript (8 September 2010) p.135 at paragraphs 1-2
[5] Transcript (8 September 2010) p.144 at paragraphs 42-43
[6] Transcript (8 September 2010) p.145 at paragraph 3

Sergeant W described the paternal grandfather as very, very quiet. The grandmother was, to use his words, “steering the train”[7].
[7] Transcript (8 September 2010) p.149 at paragraph 26
While Sergeant M spent less time with the grandparents than

Sergeant W, he described the grandfather as very, very quiet. He also formed the opinion that the grandmother was very controlling: “She was a very strong woman and very dominant in the dynamics of the household”[8]. He described the mother as less confident or brave in her presence. He described the father as being very concerned that the police were talking to the father and mother without the grandmother being present. He was trying to get the two of them (the parents) to have a chat about the issue and he didn’t really believe that the grandmother had anything to add.
[8] Transcript (9 September 2010) p.191 at paragraph 38

The Family Report

The Family Report was prepared by Mr S. He interviewed both parents and observed them with the child [X]. He also spoke to Sergeant W. From his observations of the child with both parents he concluded:
“While [X] was observed to be happy and connected to both his parents he presented as more contained and focussed with his mother and less settled when with his father”.
Mr S did not consider shared care to be appropriate for [X]. He referred to the need for sophisticated cooperation and communication between the parents and a high level of alignment with parenting values for shared care to work. His conclusion was that he had:
“doubts that these parents can progress to a more collaborative engagement around their son’s care particularly while Mr Sarin remains living with his parents and possibly under his mother’s controlling influence as was the view of the investigating Police Officer Sergeant W”.
Mr S also raised the concern that during time spent with the father there was a possibility of the child’s care being monopolised by his paternal grandparents.
Mr S recommended that the child spend time with the father on alternative weekends from Saturday morning until late Sunday afternoon and with a further mid week visit of four or five hours without the grandparents being present. He suggested that the overnight stays could be extended to two nights when the child is two and three nights when he is three.
In his oral evidence, Mr S raised concerns that a fifty-fifty split was likely to entail multiple transitions for the child. He also considered that when the child was in the father’s care he should be the primary care giver. Mr S stated that the father had told him that the child slept with the grandparents for the majority of the night for the first six months which enabled him to have time with the mother on his own. He was concerned that this appeared to have been to suit the father’s need not that of the child or the mother.
Mr S was questioned about why he did not interview the grandparents and the amount of time he spent observing the father with the child. He described the mother as being quite distressed when she recounted to him her experience at the hands of the paternal grandmother. Mr S stated that generally he did not interview parents of litigants because, from his experience, their account was very, very, very similar to the family member.
Mr S considered that to-ing and fro-ing is the factor that can cause unsettled behaviour in young children. Another one is their experience of very different care environment and very different routines. He considered the father to have shown a lack of insight in the child’s emotional needs.
Mr S considered that the father was vague in some of his responses and inconsistent. He gave the example of him saying that he would remain unemployment to look after the child in the context of a history of not seeing his new wife for two years because of his work commitments. He felt that the mother was more consistent in what she said and the mother’s claims of the paternal grandmother’s monopoly over the child was consistent with the police account of the level of control and influence of the grandmother within the family.
Mr S stated that he would not support overnight access during the week. In his view, mid-week overnight would be too much of an imposition on a child as this young age. Mr S considered his recommendations to be appropriate for a child of [X]’s age and stage of development.

Legal Principles

The principles governing this case are set out in Part VII Division 1 of the Family Law Act 1975 (“the Act”). The objects of the Part are set out in s.60B. It is necessary to apply those objects when considering the matters set out in s.60CC. The paramount consideration, as set out in s.60CA, is the best interests of the child.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of his parents. 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. These are consistent with the object of the Part as set out in s.60B. There are additional considerations set out in s.60CC(3) and s.60CC(4).
In considering s.60CC(2)(a) there is no doubt from the evidence that both parents wish to have a meaningful relationship with the child and also wish him to have a meaningful relationship with the other. Ms Wheeler submitted that in order to have a meaningful relationship, the child needed to spend time with his father, not only for the weekends but at normal times when other things impinge on their lives so that the child gets to appreciate all of those facets of the parent’s life. Ms O’Connell submitted that on the evidence the Court can not make an order with any confidence for the husband to have extended periods of time with his son whilst he remains in a household with his parents, that he will be playing a primary role in caring for his son during these periods of time.
The meaningful relationship referred to in s.60CC(2)(a) is with the parents. On the father’s evidence, until the mother left the marital home the care of the child was ‘shared’ between the mother, himself and the paternal grandparents. For at least the first six months of his life, the child spent a significant amount of time, including sleeping with them at night, in the care of his grandparents. It is important that he develops a meaningful relationship with his primary care givers, being his parents.
The father’s evidence was that he currently works five days a week from 9.00am to 4.30pm. His contract, as provided to the Court, does not specify any particular hours but the project upon which he was working had an end date of 9 February 2011, unless otherwise negotiated. The father works for a company undertaking assignments with clients of his employer. His contract indicates that he is responsible for planning and managing his time and he is paid on the basis of time sheets submitted to his employer. It is reasonable to assume that the period allocated for the assignment is based on an expectation that the father will work the hours he has indicated.
The father also produced an extract from the Collective Agreement of the client which he suggested indicated that flexible working arrangements were available. As he is not an employee of the client, however, the Collective Agreement it has with its own employees is not relevant.
It is therefore not clear what time the father would actually spend with his son should orders of this Court provide for the child to spend extended periods of time with him.
Section 60CC(2)(b) refers to the need to protect the child from physical or psychological harm from being subjected or expose to abuse, neglect or family violence.
There is nothing to suggest that the child himself has or is likely to be exposed to abuse or neglect while in the care of either of his parents. There are clearly, however, allegations of abuse and family violence made by the mother against both the father and the paternal grandmother. While I am prepared to accept that the mother has exaggerated the frequency and severity of the paternal grandmother’s attacks on her, I accept that she was abused and slapped by the grandmother and that, at the very least, the child is likely to be exposed to derogatory comments being made about his mother while in his father’s home.
I also accept that on one occasion the father was physically violent towards the mother. This occurred prior to the child’s birth and there is no suggestion of any recurrence. He did however acquiesce in his mother’s treatment of her. I am not at all certain that the father would be able to prevent his son from being exposed to the grandmother’s negative view of the mother. I do not find the grandmother’s denials in this regard to be credible and accept that she has accused the mother of being a prostitute in the past.
Given the child’s age, s.60CC(3)(a) does not appear to be relevant in this case. Section 60CC(3)(b) refers to the nature of the children’s relationship with each of his parents and other persons including any grandparent. Ms Wheeler placed emphasis on the importance of the grandparents in the child’s life. She was critical of the failure of the family report writer to observe them with the child. The child has spent most of his life with them and obviously has a fantastic relationship with them, she submitted. While the mother might have a problem with the paternal grandmother, the grandmother’s evidence was positive about her.
Ms O’Connell, on the other hand, submitted that the wife’s evidence concerning the grandmother’s behaviour is believable and that the reality was that the paternal grandmother was going to be the primary carer of the child while he was in the father’s household.
The evidence does suggest that the child has a close relationship with his grandparents. This is understandable given the living arrangements for most of his life so far. The relationship with the grandparents has some positive aspects for the child in that is provides continuity for him. On the other hand, there is a need for him to develop an independent relationship with his father which may be impeded by, in particular, the grandmother’s influence.
Section 60CC(3)(c) deals with the willingness and ability of each of the parents to facilitate and develop a close and continuing relationship between the child and the other parent. Ms Wheeler submitted that the father was not critical of the mother’s parenting at all. Ms O’Connell on the other hand pointed to the father’s lack of co-operation in handing over to the mother the child’s clothing and other necessities and his instigation of contravention proceedings the very day after the wife failed to provide the child for one day of contact.
It is of concern that the parents have such difficulty in communicating. It is clearly not one sided as the mother directed the father to talk to her solicitors over the incident where she failed to make the child available to spend time with the father. The father says the mother is a good mother and the mother says she wants the father to be a good father. Both of them would benefit from attending post-separation parenting counselling.
Section 60CC(3)(d) refers to the likely effect of any changes in the child’s circumstances including the likely effect of any separation from either of his parents or other persons with whom he has been living. Ms Wheeler submitted that this was an important consideration in viewing the mother’s proposal as it would clearly impact on the child’s relationship with his grandparents who have been a part of his life since birth, if he was not to spend any time with them. Ms O’Connell placed emphasis on the primary relationship between the child and his parents.
It is important in considering this aspect to balance the needs of the child to forge strong bonds with his parents and the role his grandparents can play in his life. I have no doubt that his grandparents love him and that this is reciprocated. His relationship with them, however, should not detract from the role of his parents in his life.
Section 60CC(3)(e) deals with the practical difficulties and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain relations and direct contact with both parents on a regular basis.
In this case, the child is young and, while the parents live in the same city, they reside quite far apart from each other. The mother does not drive and does not have a car. While this presents some difficulties for the father, they are not insurmountable and should not impact on the child spending regular time with him.
Section 60CC(3)(f) refers to the capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs. In this case, both parents are able to provide for the child’s needs, although the family report writer was of the view that the mother was more attuned to the child’s needs. Ms Wheeler also referred to the capacity of the grandparents in this regard.
While the father did have some months off work after the child was born, I am satisfied that prior to the separation his involvement in terms of caring for the child was more limited than that of the mother and his parents. The grandparents should not become a substitute for the father in this regard.
Section 60CC(3)(g) refers to other characteristics of the child or either of the child’s parents which might be relevant. Both parents are [nationality omitted] by birth and the marriage was entered into there. There was nothing before me, however, to suggest that any particular [nationality omitted] customs or practices played a role in this case or are likely to impact upon the child. The father did impress me as rather immature for his 33 years. His dependence on his parents has had a negative impact on his marriage. His inability to accept that his wife was unhappy or to protect her from his mother is a concern in terms of his own insight and potential ability to respond to his son’s needs.
Section 60CC(3)(h) is not a relevant consideration in this matter.
Section 60CC(3)(i) concerns the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents. Both parents clearly love their son. The evidence concerning the reasons for the child sleeping with his grandparents for such a long time suggests that initially the father did not consider that the responsibilities of parenthood should interfere with his sleep or time spent with the mother. At the same time, he was critical of her effort to breast feed the baby when he considered that better nutrition was available. He does, however, appear to have played a greater role as a carer since the separation.
Sections 60CC(3)(j) and (k) deal with the issues of family violence. I accept that the mother was subjected to assault by the paternal grandmother on at least one occasion while living in the family home. On July 2010 an interim intervention order was made against the paternal grandmother in favour of the mother, which at the time of hearing, was still subject to a final hearing and was opposed by the grandmother.
Section 60CC(3)(l) refers to the issue of making an order that would be least likely to lead to further proceedings being instituted. At present the child is quite young. The father proposes a shared care arrangement although it is not clear how this would be arranged and how it would fit into his work commitments. The mother is prepared to have a shared care arrangement so long as the grandparents are not involved. The circumstances of both of the parents may change depending on their workforce participation. The child’s needs are also likely to change as he grows older. It is therefore unlikely that any order could avoid the potential for further proceedings.
Section 60CC(4) refers to the extent to which each of the parents have fulfilled or failed to fulfil their responsibilities as parents and/or has failed to facilitate the other parents involvement with the child. These issues have essentially been already canvassed.

What are the appropriate orders?

There is no objection of either party to equal shared parental responsibility in this case and I am satisfied that such an order is an appropriate one to make.
Whilst both parents in this case supported the father having shared care of the child albeit on the mother’s part qualified by the condition that the grandparents spend time with the child in her presence, this was not supported by the family report writer.
Mr S placed emphasis on the need for co-operation and communication in shared parenting arrangements. It is clear that these parties are not at that stage yet. It is also a consideration that the child is not yet two years old. His mother is currently his primary care giver. She is very focussed on the child and his needs and is prepared to foster his relationship with the father. She has a genuine, and in my view well founded, concern that at this point in time, given the father’s circumstances, a shared care arrangement with the father would involve the child spending considerable periods of time with his grandparents.
In my view, it is important that the child develops a clear distinction between his parents and other caregivers and is allowed to develop his relationship with them as distinct people.
The vagueness of the father’s proposals for a shared care arrangement suggests that it is not unlikely should such be ordered that the grandparents end up taking the principal role in the child’s rearing while the father is working.
In my view, on the basis of these conclusions, it is not in the best interests of the child that he spend equal time with each of his parents.
It is in the child’s interests, however, to spend regular time with his father including overnight. I accept Mr S’s recommendations that this should be built up as he gets older and is more secure in his relationships and his sense of himself. If the father is able to arrange to have one day during the week where he is not required to work or can work from home it would be beneficial for the child to have a regular day with him, returning to the mother in the evening.
I have given consideration to the role of the grandparents in this matter. While I am satisfied that it is in the child’s interests to spend time with them, they should not be allowed to usurp the role of the parents or to undermine the position of the mother in the child’s eyes. Time spent by the child with his father should substantially be with him and in his care.
Time spent with the father should therefore be substantial and significant taking into account the child’s care and his needs.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Whelan FM

Associate:

Date: 3 December 2010