SCOTT & SCOTT

[2019] FamCA 306

FAMILY COURT OF AUSTRALIA

SCOTT & SCOTT [2019] FamCA 306

FAMILY LAW – CHILDREN – Final orders – Best interests of the child – With whom the child shall live and spend time – Where current interim orders provide for the child to live with the mother and to spend time with the father for five nights each fortnight and portions of the school holidays – Where the mother proposed a reduction in the time from five nights to only three nights per fortnight – Where the father sought orders for the child to live with the parties for equal time on a weekly rotation – Where the Independent Children’s Lawyer supported the father’s proposal – Where the child has meaningful relationships with both parents from which he derives benefit – Where the mother made allegations of historical acts of family violence perpetrated by the father against her – Where the father denied any and all allegations of physical violence – Where no findings are made about family violence – Where the evidence did not demonstrate there was a need to protect the child from physical or psychological harm from being subjected or exposed to family violence or abuse – Where no risk of harm posed to the child in the care of either parent – Where relevant additional considerations prescribed by s 60CC(3) of the Family Law Act 1975 (Cth) are taken into account – Where the child’s views are considered – Where equal time is reasonably practicable and in the child’s best interests – Where the Family Consultant recommended an equal time arrangement – Ordered the child live with the parties for equal time on weekly rotations – Ordered the suspension of equal time on a few special occasions – Ordered the Independent Children’s Lawyer to explain the outcome of the parenting dispute to the child.

FAMILY LAW – CHILDREN – Parenting – Where the parties agree they should have equal shared parental responsibility for the child – Where the Independent Children’s Lawyer and the Family Consultant supported an order for equal shared parental responsibility – Where the mother’s allegations of family violence were not used to render the presumption of equal shared parental responsibility inapplicable – Where equal shared parental responsibility would be in the child’s best interests – Allocation of equal shared parental responsibility.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
M & M (1988) 166 CLR 69; [1988] HCA 68

APPLICANT: Ms Scott

RESPONDENT: Mr Scott

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: CRC 105 of 2016

DATE DELIVERED: 17 May 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 6 & 7 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Carolan

SOLICITOR FOR THE RESPONDENT: Green & McKay

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All former parenting orders concerning the child O, born in 2007, are discharged as from 9.00 am on Wednesday 22 May 2019.

2. The parties shall have equal shared parental responsibility for the child.

3. The child shall live with the parties for equal time in the following sequence:

   (a)With the father from the commencement of school (or 9.00 am if not a school day) on Wednesday 22 May 2019 until the commencement of school (or 9.00 am if not a school day) on Wednesday 29 May 2019, and every alternate week thereafter; and

   (b)With the mother from the commencement of school (or 9.00 am if not a school day) on Wednesday 29 May 2019 until the commencement of school (or 9.00 am if not a school day) on Wednesday 5 June 2019, and every alternate week thereafter.

4. Order 3 is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.

   (b)Between 9.00 am and 7.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

5. For the purposes of implementing Orders 3 and 4 hereof, the parties shall respectively ensure the child’s:

   (a)Collection from school, whenever the child’s residence with a party is to commence at or about the conclusion of school during school term;

   (b)Return to school, whenever the child’s residence with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)Collection from and return to the McDonald’s Restaurant at J Town, NSW.

6. Within seven days hereof the parties shall cause the child to be delivered to the Independent Children’s Lawyer to have explained to him the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

7. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number and email address.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

9. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

10. Any and all outstanding applications under Part VII of the Family Law Act 1975 (Cth) are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: CRC 105 of 2016

Ms Scott

Applicant

And

Mr Scott

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Although the applicant mother and respondent father remain in dispute about both the parenting arrangements for their child and the division of their property interests, the two causes were split and these reasons deal only with the parenting dispute. Their more complicated property adjustment dispute, which is not yet ready for trial, will be heard separately later.

2. The parenting dispute concerns the parties’ child, who is now 11 years of age.

3. In truth, the dispute was quite narrow and the evidence genuinely relevant to its determination was relatively brief. The parties agreed they should equally share parental responsibility for the child and that he should live with the mother for at least one-half the time. The real contest was whether the child would live with the father for equal time, as the father wanted, or instead spend substantial time with the father, as the mother wanted.

Brief history

1. The parties commenced cohabitation in 2003, married in 2005, and separated in June 2015.

2. Their child was born in 2007.

3. In August 2015, about two months after their separation, the parties entered into a Parenting Plan in respect of the child. It broadly provided for the parties to have equal shared parental responsibility for the child, for the child to live primarily with the mother, and for the child to spend substantial time with the father, which included five nights (in two tranches) each fortnight during school terms, one-half of school holiday periods, and other special occasions.

4. The parties intended the Parenting Plan to only be a stop-gap measure, as they expressly agreed it would be reviewed in three months, albeit for different reasons. The Parenting Plan recorded their different reasons as follows:

   7. The Father’s purpose of the review would be to increase the number of days that the child lives with him to seven days per fortnight.

   8.The Mother’s purpose of the review would be to consider a restructure of the time to a five day block period per fortnight or decrease the time.

5. The father deposed, without contradiction, that the mother refused to review the Parenting Plan.[1]

   [1] Father’s affidavit, para 15

6. Proceedings were commenced by the mother in the Federal Circuit Court of Australia in May 2016, but only seeking relief under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the parties’ property. She was presumably satisfied with the provisions of the Parenting Plan as they then stood.

7. The parenting dispute was commenced by the father when he filed his Response in June 2016, seeking relief under both Parts VII and VIII of the Act. His motivation to apply for parenting orders was the mother’s denial of the child’s contact with him in accordance with the Parenting Plan from May 2016,[2] which non-compliance the mother conceded.[3]

   [2] Father’s affidavit, para 15

   [3] Mother’s affidavit, paras 165-169

8. In September 2016, the Federal Circuit Court of Australia made interim orders which, among other things, required the parties to adhere to the Parenting Plan.

9. Much later, in November 2017, the proceedings were transferred to this Court for determination.

10. In May 2018, the parties informed the Registrar that the child was living with the mother and spending time with the father as required by the interim orders.[4]

    [4] Notation D made on 16 May 2018

11. In February 2019, with the parties’ consent, fresh interim parenting orders were made for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father for five nights each fortnight and for portions of the school holidays.

Proposals

1. The mother’s proposal for the child has vacillated between him spending as many as five and as few as three nights each fortnight during school terms with the father, though she has never wavered about the child spending equal time with the father during school holidays. The fluctuations in her position may be traced as follows:

   (a)In August 2015, she voluntarily signed a Parenting Plan allowing for five nights per fortnight;

   (b)In August and then September 2016, by an amended application, she proposed a changed interim arrangement of only three nights per fortnight, but orders were made in September 2016 for the parties to adhere to the five nights per fortnight under the Parenting Plan;

   (c)In December 2016, she filed a Further Amended Initiating Application proposing only three nights per fortnight;

   (d)On 8 February 2019, the mother agreed to fresh interim orders being made which perpetuated the arrangement for the child to spend five nights per fortnight with the father;

   (e)On 12 April 2019, when the trial directions were made, she conceded (through her solicitor) that the child could spend five nights per fortnight with the father;[5] and

   (f)On 1 May 2019, she filed a Further Amended Initiating Application proposing only three nights per fortnight.

   [5] Notation B(b) made on 12 April 2019.

2. At trial, the mother deposed she was motivated to reduce her proposal in December 2016 because of her concern for the child’s “wellbeing”, on account of the father’s “irrational behaviour and inappropriate involvement” of the child in the parental conflict,[6] at least pending an “independent family assessment”.[7] The “independent family assessment” which the mother sought was presumably the opinion of the Family Consultant contained in the Family Report, which was released to the parties shortly after the mother amended her proposal. The Family Consultant recommended an “equal time” regime for the child, so the mother’s decision to restore her proposal to the expanded regime of the child spending five nights per fortnight with the father (as evidenced by her consent to the interim orders made on 8 February 2019 and the confirmation of her position at the procedural event on 12 April 2019) was her logical response to that recommendation.

   [6] Mother’s affidavit, paras 192-193

   [7] Mother’s affidavit, paras 203-204

3. However, the mother gave no rational explanation at all as to why she again decided to constrict her proposal to only three nights per fortnight just prior to the trial, particularly in the face of her sworn admissions about her satisfaction with, and her desire to preserve, the interim orders last made on 8 February 2019 requiring the child to spend five nights per fortnight with the father.[8] Her unconvincing effort to resile from the patently clear meaning of that evidence during cross-examination was beneath her intelligence and guile.

   [8] Mother’s affidavit, paras 258-259

4. The father did not amend the Amended Response he filed on 20 January 2017, though he sought orders in slightly different terms at trial. He simply wanted orders for equal shared parental responsibility and for the child to live with him for equal time on weekly rotations, as has always been the case.  

5. Before the trial commenced, the Independent Children’s Lawyer foreshadowed her proposal for the child to live with the parties for equal time. She adhered to that proposal throughout the trial, but did not produce any Minute of Orders.

Evidence

1. The mother relied upon her affidavit filed on 30 April 2019. The annexures referred to in the affidavit were not attached and so, subject to objections, the culled annexures were tendered separately.[9]

   [9] Exhibit M1

2. The mother was denied leave to call evidence from the maternal grandmother and an unidentified neighbour because, having regard to the submissions made at the interlocutory event when trial directions were made, their prospective evidence was either irrelevant or lacked any probative value in relation to the residual contest.[10] The mother made no fresh application to adduce more evidence at any point thereafter, leading up to or during the trial.

   [10] Notations B and C made on 12 April 2019

3. The father relied upon his affidavit filed on 30 April 2019.

4. During the trial, with the mother’s consent, the father was also permitted to rely upon another affidavit he recently affirmed (but did not file) on 3 May 2019.[11] Its contents were confined to the issue of family violence, allegations of which the mother raised in her trial affidavit. The father omitted any reference to the allegations of family violence in his trial affidavit because he reasonably apprehended the controversy over the issue had abated, given the parties’ agreement to equally share parental responsibility and their consensus the child should spend nothing less than substantial and significant time with him.

   [11] Exhibit F2

5. The parties and the Independent Children’s Lawyer relied upon the Family Report, dated 16 December 2016. Despite the antiquity of the Family Report, the parties confirmed they did not want an updated report because of the narrowness of their dispute.[12] The Family Consultant was briefly cross-examined at trial by the mother, but not by the father or the Independent Children’s Lawyer.

   [12] Notation D made on 12 April 2019

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. The Family Consultant witnessed a “close and loving bond” between the child and the mother[13] and a “meaningful and important bond” between the child and the father.[14] The Family Consultant considered the bond between the child and mother was slightly stronger,[15] but was quite satisfied the child loves both parents.[16] The child nominated the parties as his “favourite grown-ups” to the Family Consultant,[17] so he regards his filial relationships with both of them to be important.

   [13] Family Report, paras 73, 94

   [14] Family Report, para 76

   [15] Family Report, para 95

   [16] Family Report, para 91

   [17] Family Report, para 61

2. The parties conducted this case on the basis that the child should spend no less than substantial and significant time with the father, so they necessarily accept the importance of the child’s relationship with the father and the benefit he derives from the relationship. Of course, the same may be said of the child’s relationship with the mother, with whom he will live for no less than equal time.

Section 60CC(2)(b)

1. The mother made the past occurrence of family violence a contentious issue at trial though, for the reasons which follow, it remains unclear why.

2. In discussions with the Family Consultant in late 2016, the mother reported “regular verbal abuse” and “occasional physical abuse” within the parties’ relationship.[18] She conceded she made no reports of any violence to the police until after their separation.[19] The argument which precipitated the parties’ separation in June 2015 was not reported by the mother to the police until a month later in late July 2015, at which point she told police she only wanted “guidance” about how to tell the father their marriage was over to avoid him becoming “argumentative”.[20]

   [18] Family Report, para 80

   [19] Family Report, para 16

   [20] Exhibit F1

1. At trial, the mother elicited evidence alleging the father’s perpetration of family violence upon her, commencing in the very earliest stages of their relationship. The evidence can be fairly summarised as her complaint about intermittent verbal altercations, some of which entailed grasping or struggling.

2. The father denied any and all allegations of physical violence made against him.[21] Inferentially, he admitted they argued from time to time, but contended each was as responsible as the other for that.

   [21] Family Report, paras 13, 80; Father’s affidavit, para 12; Exhibit F2

3. The parties’ disparate versions of their past verbal arguments and the attribution of blame for them is plausibly explained by their honest but different recollections or perceptions of those events. However, their evidence about physical violence was utterly irreconcilable. Either the father was occasionally physically abusive, as the mother alleged, or he was not, as he maintained.

4. In final submissions, the mother described the alleged family violence as a “substantial” and not “trivial” issue. Sure enough, family violence is liable to be an important issue in parenting proceedings, not only because numerous provisions of the Act state it is. But whether family violence actually becomes an influential issue in the proceedings depends upon the nature and ambit of the dispute over the orders sought by the parties in respect of the subject child.

5. The evidence of family violence could only have been adduced by the mother in an attempt to influence the nature of the ultimate orders made in respect of the child, for otherwise it was pointless. However, the parties agreed they should have equal shared parental responsibility for him, so the evidence of family violence was not being used to render the presumption of equal shared parental responsibility inapplicable (s 61DA(2)(b)) and, since the mother acknowledged the child could spend “substantial and significant time” with the father (s 65DAA(3)), it is difficult to see any logical connection between the alleged past family violence and the child’s future physical and emotional safety. If he can safely spend three, or even the current five nights, per fortnight with the father, he can safely spend seven, just as he will certainly do during all school holiday periods. The mother proposed the child should spend up to ten consecutive nights and more than three weeks in total with the father during the Summer holidays. What could happen to the child on the fourth night which could not happen to him on one of the first three nights each alternate week in school terms? Why is it safe for the child to spend one-half of all school holiday periods with the father but unsafe for him to spend any more than three consecutive nights per fortnight with the father during school terms? The mother could not advance any logical answers to those legitimate questions.

6. The mother’s insistence on agitating the issue of family violence at trial must be contrasted with her serenity about the child’s relationship with the father, as is evident from historical events. In August 2015, two months after separation, the mother freely agreed to share parental responsibility for the child and promoted the child spending five nights per fortnight with the father during school terms and even longer periods during school holidays. She confirmed the arrangement when, years later in February 2019, she consented to interim orders to the same effect. Such concessions are difficult, if not impossible, to reconcile with any contention that the child is at risk of harm (from family violence or otherwise) while in the father’s care.

7. Such contextual analysis of the mother’s evidence begs the question of whether there is any genuine need at all to resolve the factual controversy over the past occurrence of family violence. The Independent Children’s Lawyer contended there was not. The father was non-committal on the point, but he maintained the mother failed to prove the family violence if factual findings were to be made. The mother’s implicit proposition that it is necessary to resolve the factual conflict over historic family violence in order to determine these proceedings is rejected. There are two reasons for that conclusion.

8. First, it may do more harm than good. The mother was the only person interested in factual findings being made. If she is vindicated, she may gloat and flaunt the findings like a trophy to the father and others. On the other hand, if the father is vindicated, her indignation may cause her to be an unco-operative parent. In either case, one party or the other will almost certainly be dissatisfied with the conclusion. Those considerations are important since, in this case, it is certain both parties will remain integrally involved in the child’s care over the remainder of his minority. They need to retain their existing capacity for co-operation when they will continue to exercise equal shared parental responsibility for the child.

9. As the High Court said in M & M (1988) 166 CLR 69 (“M & M”) at 76, albeit in a different context:

   …it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. 

10. Although the High Court was there speaking of disputed allegations of sexual abuse, the same may be said of disputed allegations of family violence when the determination of the factual dispute according to the civil standard of proof is not necessary to determine the wider parental dispute. The Court is concerned to make such orders in respect of the child as will best promote and protect the interests of the child (M & M at 76). The task of resolving factual disputes between the parties is subsidiary to that duty.

11. In this case, the child’s interests will not be served by adjudicating the factual dispute between the parties over the past occurrence of and responsibility for family violence because, regardless of the findings, the mother wants to share parental responsibility with the father and intends that the child should spend substantial time with the father. Therefore, the findings will not affect the orders regulating the amount of time the child either lives or spends time with the father.

12. This case is quite unlike one in which the resolution of contested allegations of family violence would (or even might) affect the nature of the parenting orders made. For example, in some cases, the proven perpetration of family violence by a parent may warrant orders which entirely eliminate that parent from the child’s life, or protect the child by the imposition of supervision, or drastically curtail the time spent by the child with that parent. In cases of that type, it would probably be necessary to determine the factual dispute (see Amador v Amador (2009) 43 Fam LR 268 at [84]-[88], [94]-[96]). As the Full Court said in that case (at [88] and [95]):

    …in appropriate cases, it may be important to make findings of this nature [pertaining to family violence] if they are available and necessary to determine what is in the best interests of the child…

    …

    The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done…

    (Emphasis added)

13. Second, the parties’ evidence was almost entirely uncorroborated and neither appeared to give more credible accounts than the other. Additionally, neither party was seriously tested in cross-examination about the truth or accuracy of their allegations and denials of family violence. In those circumstances, deciding the controversy would be more akin to speculation than forensic fact finding.

14. Even if the mother’s evidence is taken at its highest, there has been no family violence between the parties since their separation, some four years ago. The prospect of the occurrence of family violence between them in the future must now be regarded as rather remote on that consideration alone.

15. When pressed about such considerations during the trial, the mother sought to instead submit she was concerned the father might act violently towards the child if he is challenged by the child, just as she alleged he acted violently towards her in the past during their disagreements. The submission is rejected as baseless. The mother told the Family Consultant years ago she had no fear the father would be “physically abusive” to the child[22] and she would surely not have agreed to the child spending substantial time with the father over the ensuing years if she had cause to think otherwise.

    [22] Family Report, para 44

16. The evidence did not demonstrate there was any need to protect the child from physical or psychological harm from being subjected or exposed to family violence or abuse.

Child’s best interests – additional considerations

1. While the evidence was voluminous and touched almost all aspects of the family’s history, not all of the additional considerations prescribed by s 60CC(3) of the Act were relevant to the outcome of the dispute and so only the influential considerations are addressed.

Section 60CC(3)(a)

1. It was common ground in this case that the child has repeatedly and consistently expressed the view that he should live with the parties for equal time. The dispute over his expressed views is whether they are genuinely his own or instead a product of his undue influence by the father.

2. The mother contended in her Case Outline:

   The only factor identified of relevance is that in relation to [the child’s] views which is well evidenced as contaminated by the father’s influence.

   …

   [The child’s] views as so strongly aligned with that of the father, further under undue influence and coercion as well evidenced, should be viewed with extreme caution and should be given limited if any weight in this instance. There is various and repeated evidence from the mother that establishes the father’s conduct in this regard.

   …

   [The child’s] views have been shown to be contaminated by the father’s repeated involvement of him in advocating for the father’s agenda since separation…

   …

   [The child] is of an age where he can clearly express his views, although such view the mother submits is heavily and coercively influenced by the father under contrived conditions with a background of family violence and should be weighed with caution if at all.

3. When asked in final submissions to identify such reprehensible conduct by the father, the mother referred only generically to his alleged involvement of the child in the parental conflict, which the father denied. The mother alleged in her Case Outline that the father engaged the child in the dispute by “having him more recently sign residency documents”, but there was no evidence of the child being inveigled by the father to sign documents related to the litigation. The mother did not depose to any such event in her affidavit and she did not cross-examine the father about it. No finding could be made to vindicate the allegation in the absence of an evidentiary basis.

4. The child revealed to the Family Consultant he had discussed the topic of his living arrangements with the father, but not with the mother.[23] That alone, however, is an unsound factual premise upon which to contend the father immersed the child in the parental conflict, thereby justifying an inference that the child’s expressed views were induced by pressure exerted by the father and little weight should therefore be reposed in them. While the mother might truly believe it, her belief in the theory does not prove it. The child’s comments to the Family Consultant do not necessarily imply the father tried to conscript him as an accomplice to help secure an equal time regime, as the mother seemed to think. The Family Consultant seemed satisfied the child was voicing his own opinion, even if he had discussed the topic with the father some time before.[24] It would be unsurprising if the child did form his own opinion, at least in part, in reliance upon his knowledge of his parents’ opinions, but that does not detract from his ultimate opinion being his own. Both parties accept the child is imbued with a strong sense of fairness, which makes it unsurprising he advocates to live for equal time with each parent.

   [23] Family Report, paras 66-67

   [24] Family Report, paras 90, 97

5. In January 2016, some six months after the parties’ separation, the child told his counsellor he wanted to live with the parties for equal time.[25] He told another counsellor the same thing months later in or about August 2016.[26] When the child later met with the Family Consultant in December 2016 he also told her he wanted to live with the parties for equal time in weekly rotations.[27] The father was not present during any of those meetings in which the child expressed those consistent views. It is possible the father coached the child in advance to express such views, as the mother suspects, but quite improbable. His views were consistently stated over a period of 12 months, to three independent adults, always in the father’s absence, and while he was living primarily with the mother. In any event, well over two years have passed since the child’s meeting with the Family Consultant and more than three years have passed since his first meeting with a counsellor. It was not suggested he has expressed a contrary view in the interregnum.

   [25] Exhibit ICL1

   [26] Exhibit ICL2

   [27] Family Report, para 66

6. The child is now on the cusp of adolescence, with matching maturity. The parties believe he is bright and intuitive.[28] On the balance of probabilities, the child’s expressed views are representative of his genuine sentiments. While he is probably aware of the parties’ competing proposals about his care, it is unlikely he has been unduly swayed by that knowledge. Given his age and maturity, considerable weight should be reposed in his views, though his views should not be dispositive.

   [28] Family Report, paras 71, 74

Section 60CC(3)(d)

1. Both parties sought variation of the current regime, under which the child spends five nights per fortnight with the father. The mother wanted to constrict it to three nights each fortnight and the father wanted to expand it to seven nights each fortnight.

2. At the time the parties conferred with the Family Consultant in December 2016, they were adhering to the regime imposed by the interim orders made in September 2016, requiring the child to spend five nights per fortnight with the father. The mother told the Family Consultant that arrangement was “working well” and she was “happy with the current situation”,[29] though she considered the father was less organised than her as a residential carer.[30] She could be right, but that does not mean the father’s care is deficient. It may only mean she expects higher standards than are reasonably adequate.

   [29] Family Report, paras 22, 28

   [30] Family Report, para 24

3. The mother’s satisfaction with the existing regime did not change over time. She agreed to fresh interim orders in February 2019 perpetuating the regime and she deposed at the trial how those orders greatly reduced the opportunity for parental conflict and she would like to preserve the shared care arrangement currently in place.[31] She also deposed she told the father she would “continue to maintain [her] support of the co-parenting shared care arrangement pursuant to the parenting agreement and court orders”.[32] As earlier mentioned, the mother could not then offer a persuasive explanation for why she suddenly wanted to curtail the regime to three nights per fortnight during school terms.

   [31] Mother’s affidavit, paras 258-259

   [32] Mother’s affidavit, para 230

4. If the mother’s current proposal is implemented, the likely effect on the child would be his dissatisfaction and unhappiness. The child wants to live with the father for equal time, so he would be disappointed by even greater constriction of the time. He would also have much less interaction with his older half-sibling who lives with the father.

5. On the other hand, if the father’s proposal is implemented, the child would likely feel fulfilled by knowing his expressed views were respected. The father considered an equal time arrangement would also introduce more predictability and reduce the mother’s capacity to control the child.[33] That is undoubtedly true. The current arrangement of five nights per fortnight, comprising three nights in one week and two nights in the next, is more complicated than weekly rotations. Moreover, the mother’s current role as primary residential carer does lend itself to exertion of control and superiority, even if unintended. Her complaints of the father’s inferior residential care, which seemingly had no basis other than her bare belief, are suggestive of her desire to control arrangements for the child.

   [33] Family Report, paras 33, 56, 93

6. The mother contended various factors militated against an equal time arrangement. She told the Family Consultant it would be destabilising for the child and the child would then be more exposed to the risk of abuse and poor role-modelling.[34] At trial, she also contended the father had shown a lack of commitment to the child’s school and extra-curricular activities. Unfortunately for the mother, her assertions were not substantiated by the evidence. Weekly rotations would only enhance predictability in the child’s routine. The mother must know that to be true because she deposed to her belief in how an equal time arrangement between the father and his former partner in respect of their children introduced more stability and predictability.[35] The absence of proof of the child’s exposure to any risk of harm in the father’s care has already been explained. As for the child’s education, his school attendance has been just as good while in the father’s care as when in the mother’s care, his school reports show excellent academic progress and behaviour,[36] and his only current sport or extra-curricular activity is rugby, which activity both parties avidly support.

   [34] Family Report, paras 29, 93

   [35] Mother’s affidavit, para 20

   [36] Father’s affidavit, para 17, Annex B

7. There is, of course, a case for maintaining the current regime, which has worked reasonably well for about four years, on the basis that there is no reason to fix something which is unbroken. However, both parties want to change it and there is more to recommend the change proposed by the father than that proposed by the mother.

8. In one respect, the parties were in agreement. The five nights per fortnight which the child currently spends with the father occurs in two tranches – three nights in one week and two nights in the second week. That entails four exchanges of the child between the parties each fortnight. The parties both propose that there only be two exchanges each fortnight, regardless of whether the child’s time with the father is confined to three nights, expanded to seven nights, or left as is. That will suit the child. He formerly told the Family Consultant that “switching” between parents was the “hardest thing” about his life.[37] The Family Consultant recommended reduction in the number of exchanges.[38]

   [37] Family Report, para 61

   [38] Family Report, para 99

Section 60CC(3)(e)

1. The parties do not perceive any real practical difficulty or expense in the child’s exchanges between them.

2. The father lives between a farm and a coastal property in the M Town locale. The mother still resides in the M Town area, but has successfully trialled living with her new partner in X Town over the last few months. It seems possible, if not likely, she will relocate to X Town in due course.

3. The child’s school is located in X Town. Whether he lives in the M Town area or in X Town, he encounters no difficulty travelling to and from school or moving between parents. He commuted to school from M Town when the parties cohabited and also since their separation. The mother said she did not mention in her affidavit the prospect of her residential move to X Town because she “didn’t see it as relevant”.

1. It was common ground that the time to travel by road between M Town and X Town is about 25 minutes.

Section 60CC(3)(f)

1. The mother advanced some mild complaints about the father’s inferior capacity to provide for the child’s needs, but they were confined to allegations concerning the child’s school lunches, his school uniform, and his attendance at sport. The father broadly denied her allegations of delinquent care and her evidence was no more credible than his on the topic. The mother told the Family Consultant she did not want to be “critical of [the father’s] parenting”,[39] so she must not regard her complaints of that type to carry much probative weight.

   [39] Family Report, para 24

2. The mother also contended at trial that the father prioritised his own need for equality in the child-care arrangements over the child’s best interests. True it is, the Family Consultant found the father more absorbed with the dispute than the mother,[40] but there was no evidence such absorption deprived the father of the capacity to meet all of the child’s physical, emotional and intellectual needs. In any event, the mother’s submission depended upon a finding that the child’s best interests warranted constriction of the time he spends with the father, as the counterpoint to the father’s disregard of the child’s best interests, but she failed to demonstrate the child’s best interests would be served by reducing the time he has happily spent with the father for the last four years.

   [40] Family Report, para 46

Section 60CC(3)(j)

1. The evidence of family violence has already been addressed under s 60CC(2)(b) of the Act. There is no need to say more.

Section 60CC(3)(k)

1. No family violence orders have ever been made between the parties, either during the marriage or since their separation.[41]

   [41] Family Report, para 80

Section 60CC(3)(l)

1. The Independent Children’s Lawyer submitted, and it is accepted, that if orders are made which are at significant odds with the child’s expressed view, he may “vote with his feet” and do as he pleases in any event. That may not eventuate in the immediate future, but it is distinctly possible as he ages and matures into adolescence. The chance of more litigation over parenting orders is heightened if that occurs, because the parties are more likely to then contest enforcement of the orders.

Section 60CC(3)(m)

1. The father has five other children from prior relationships. The youngest of those children is a son who is nearing his majority. He lives with the father and he enjoys a close relationship with the child.

2. The Family Consultant found the child “particularly pleased” to spend time with his half-sibling when staying with the father[42] and the father deposed to the close relationship between the boys.[43] Neither was challenged by the mother in cross-examination about those observations, in which case they are accepted as correct.

   [42] Family Report, para 91

   [43] Father’s affidavit, paras 46-47

3. Since the child is the parties’ only child, the enrichment of his half-sibling relationships is an important consideration. They will likely endure beyond the parties’ lives. The child will likely enjoy a better relationship with his half-brother if they live together for one-half the time. The fact the child and his half-sibling have occasionally had altercations makes no difference.[44] All siblings are prone to fight occasionally.

   [44] Mother’s affidavit, paras 64, 126

4. Expansion of the time the child stays with the father will also probably help off-set any disturbance the child may feel about moving to live with the mother’s new partner and his two young children in X Town, or at least about spending much more time in that household.[45]

   [45] Father’s affidavit, para 61

Conclusion and orders

1. For the reasons already given, no findings are made in respect of the contentious issue of family violence. Consequently, the presumption of equal shared parental responsibility is not rendered inapplicable. The mother loses nothing by that course being taken because, even if her allegations of the father’s perpetration of family violence had been sustained so as to render the presumption of equal shared parental responsibility inapplicable (s 61DA(2)(b)), she still advocated for an order to be made vesting equal shared parental responsibility in the parties. She must consider such an order to be in the child’s best interests, regardless of any historic disharmony between the parties.

2. Although some irritation occasionally creeps into the parties’ communication, for the most part, their mutual intelligence and willingness to prioritise the child’s interests induces them to co-operate sensibly over his care. The mother was keen to impress the “positive personal interactions between [the parties] to [the child’s] benefit” and her desire to maintain the parties’ “amicable co-parenting approach”.[46]

   [46] Mother’s affidavit, paras 222, 232

3. An order is made for the parties to have equal shared parental responsibility for the child because the parties wanted it, the Independent Children’s Lawyer advocated for it, and the Family Consultant recommended it. An order is made requiring the parties to keep one another appraised of their current contact details so they are able to discharge their duty effectively (s 65DAC).

4. Given the allocation of equal shared parental responsibility, s 65DAA of the Act is engaged. It is obligatory to first consider whether it is in the child’s best interests and reasonably practicable for him to live with the parties for equal time (s 65DAA(1)). The Act specifies the factors which influence the determination of how the child’s best interests are served (s 60CC) and also the reasonable practicability of the child’s prospective living arrangements (s 65DAA(5)).

5. An order for equal time would be in the child’s best interests. He has a strong relationship with both parents from which he derives benefit; he is not at risk of any harm in either parties’ care; he has consistently expressed the desire to live with the parties for equal time; the movement to an “equal time” regime from the existing “substantial and significant time” regime would most probably be relatively seamless; he would then live with his half-sibling for longer, enabling them to consolidate their relationship; and such a regime is less likely to stimulate further litigation. Such an outcome enjoyed the support of the Family Consultant.[47] The Family Consultant recommended the Court “consider” that outcome, from which the mother imputed some hesitation about the efficacy of the recommendation, but the Family Consultant explained in cross-examination that was her style of expressing recommendations because the decision is ultimately the Court’s.

   [47] Family Report, paras 99, 101

6. Turning then to the practicability of an “equal time” regime, it probably would be reasonably practicable to implement. The parents still both principally live in the M Town area. Even if the mother does move permanently to X Town, the distance between the parties’ homes and the child’s school are not so great as to render an equal time regime impracticable. The parties have proven that fact over the last several months. The mother said she began trialling her residence in X Town with her new partner in February 2019 and it was going well. That represents her opinion when there are currently four changeovers each fortnight, so it can only be better with only two changeovers each fortnight, as both parties want. The parties’ capacity to communicate successfully has already been addressed in the context of their conferral with equal shared parental responsibility. The suitability of an equal time regime for the child has also already been addressed.

7. Orders will therefore be made for the child to live with the parties for equal time on weekly rotations. In those circumstances, there is no need to differentiate between school terms and school holidays. The residential arrangements will be suspended on a few special occasions (Christmas, Mother’s Day and Father’s Day), as the mother proposed. No special provision is made for birthdays or Easter, as the mother proposed.[48] There was no evidence about the significance of those occasions, no cross-examination about it, and no submissions about it. The child will only be away from each parent for one week at a time in any event, so avoidance of other interruptions is desirable.

   [48] Further Amended Initiating Application filed 1/5/19, Orders 8, 9, 10, 13

8. The child’s changeovers will occur on Wednesday of each week. That was the stated preference of both the child[49] and the father.[50] The mother took no issue with that proposal. The child’s sporting commitments are on Monday and Friday afternoons.

   [49] Family Report, para 68

   [50] Father’s affidavit, para 66

9. The changeovers will be implemented by the child’s delivery to and collection from school (even if via school bus) during school terms. During school holidays and on other special occasions, the changeovers will occur at the local McDonalds Restaurant, as proposed by the mother.[51] The father made no contrary proposal and it reflects the venue to which he agreed under the interim orders made in February 2019.[52]

   [51] Further Amended Initiating Application filed 1/5/19, Order 14

   [52] Orders made on 8 February 2019, Order 2.6

10. The mother proposed a series of restrictive and mandatory injunctions concerning the child’s medical care.[53] The orders are not made. They would represent an unreasonable interference with the parties’ conferral with equal shared parental responsibility for the child and only serve to introduce ambiguity about responsibility and obligation. Each party will have an equal level of control over the child and an equal entitlement to know about anything that affects him.

    [53] Further Amended Initiating Application filed 1/5/19, Orders 15-17

11. An order is made for the Independent Children’s Lawyer to explain the outcome of the parenting dispute to the child. He is aware of the dispute, he has expressed his views about its outcome, and he deserves an independent account of the decision.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 17 May 2019.

Associate: 

Date:  17 May 2019