Searle and Swain

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEARLE & SWAIN

[2017] FCCA 1699

Catchwords:
FAMILY LAW – Final parenting decision.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA, pt.VII.

Applicant:

MR SEARLE

Respondent:

MS SWAIN

File Number:

NCC 155 of 2015

Judgment of:

Judge Myers

Hearing date:

21 June 2016, 22 June 2016, 22 September 2016, 3 July 2017 and 4 July 2017

Date of Last Submission:

4 July 2017

Delivered at:

Newcastle

Delivered on:

4 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr Brady

Solicitors for the Applicant:

Hannaway Lawyers

Counsel for the Respondent:

Mr Bithrey

Solicitors for the Respondent:

Powe & White Family Lawyers

THE COURT ORDERS THAT:

All previous orders made in the Federal Circuit Court of Australia are discharged.
The parents Mr Searle and Ms Swain have equal shared parental responsibility for the child X born (omitted) 2013.
The child X born (omitted) 2013 live with the mother.
The child spend time with the father as agreed between the parties but failing agreement as follows:
4.1From the making of these orders and until the child commences school as follows:
4.1.1On each alternate weekend from 3.00 pm Friday until 4.30 pm Sunday, being the first weekend after the commencement of these orders and fortnightly thereafter; and
4.1.2On each Wednesday from 9.00 am until Thursday at 3.00 pm.
4.2Upon the child commencing school and thereafter during school term as follows:
4.2.1On each alternate weekend from after school or otherwise 3.00 pm Friday until before school or otherwise 9.00 am Monday, commencing on the first weekend or school term in odd numbered years and commencing on the second weekend of school term in even numbered years; and
4.2.2On each Wednesday from after school or otherwise 3.00 pm until return to school on Thursday.
4.3Upon the child commencing school and thereafter during gazetted school holidays in New South Wales in terms 1, 2, 3 and 4;
4.3.1In odd numbered years for the first half of the school holiday period from after school on the last day of school term until 10.00 am on Saturday nearest the midpoint of the school holiday period; and
4.3.2In even numbered years for the second half of the school holiday period from 10.00 am on the Saturday which is nearest the midpoint of the school holiday period until 5.00 pm on the day before school is to resume.
4.4For Christmas, as follows;
4.4.1In even numbered years from 10.0 am Christmas Eve until 10.00 am Boxing Day and
4.4.2In odd numbered years, from 10.00 am Boxing Day until 10.00 am 28 December.
4.5 On the child’s birthday, as follows:
4.5.1In even numbered years from 5.00 pm 30 December until 10.00 am 31 December; and
4.5.2In odd numbered years from 5.00 pm 29 December until 5.00 pm 30 December.
4.6On the Father’s Day weekend from 5.00 pm on the Saturday of that weekend until 4.30 pm Sunday of that weekend.
The father’s time with the child shall be suspended as follows:
5.1 For Christmas as follows:
5.1.1In each odd numbered year, from 10.00 am Christmas Eve until 10.00 am Boxing Day; and
5.1.2In each even numbered year, from 10.00 am Boxing Day until 10.00 am 28 December.
5.2 For the child’s birthday as follows:
5.2.1In each odd numbered years, from 5.00 pm 30 December until 5.00 pm 31 December; and
5.2.2In each even numbered years, from 5.00 pm 29 December until 5.00 pm on 30 December.
5.3On the Mother’s Day weekend from 5.00 pm on the Saturday of that weekend and for the balance of that weekend.
Unless otherwise agreed and upon the child commencing school, the child will communicate by telephone or other agreed electronic device with the parent whom she is not otherwise in the care of on each Monday and Wednesday between 5.00 pm and 5.30 pm.
For the purpose of implementing the above spend time arrangement and unless otherwise agreed and where the changeover location is not the child’s school, the parties are to effect changeover as follows:
7.1For a period of 6 months from the making of these orders, the parties are to utilise the changeover service through (omitted) and for that purpose each party must forthwith enrol and complete any intake procedures and thereafter follow all reasonable requests of that service, including the payment of any associated fees;
7.2Upon the expiration of 6 months after these orders are made, the parties are to meet at the main counter inside the McDonalds Family Restaurant at (omitted).
Each parent forthwith authorise the Principal of any school or pre-school that the child attends to provide to the other parent copies of all school reports, school photographs, merit cards, school newsletters, notices of excursions the like to each parent.
Each parent be at liberty to attend activities concerning the child, including sporting events, extracurricular activities, school functions and parent teacher interviews.
Each parent must advise the other of their current landline telephone number and/or mobile telephone number and they each must advise the other parent of any change of these particulars within 48 hours of such a change.
In the event that the child shall suffer medical condition and/or illness which requires the attention of a medical practitioner or allied health provider or should the child be involved in an emergency whilst in the care of either party, the party with whom the child is in the care of must notify the other as soon as practicable after any such incident, which includes details of any diagnosis and prognosis made of the child and any medication or treatment plan provided to the child.
Each party is restrained from denigrating the other party within the presence or hearing of the child or allowing a third party to do so within the presence or the hearing of the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 155 of 2015

MR SEARLE

Applicant

And

MS SWAIN

Respondent

EX TEMPORE` REASONS FOR JUDGMENT

This is a final parenting decision in the matter of Searle and Swain concerning the care and living arrangements of the parties’ daughter, X, born on (omitted) 2013. X is now some three and a half years of age. The applicant father, Mr Searle, seeks orders as set out in his outline of case document filed 11 February 2016 whereby the parents have equal shared parental responsibility for their daughter X and she live equally between them, essentially what might be described as a week on week off basis.
The respondent mother, Ms Swain, seeks orders as set out in her amended response to initiating application filed 16 December 2016 that provide for the mother to have sole parental responsibility, that the child live with her, and the child spend time with the father for incremental increases of time whereby from 1 January 2017 until the child commences school as follows:
a)on each alternate weekend from 4.30 Friday until 4.30 pm Sunday, being the first week after the commencement of this order and fortnightly thereafter.
b)On each Tuesday from 3 pm until 5 pm.
Upon the child commencing school and thereafter during school terms as follows:
a)on each alternate weekend from after school or otherwise 3 pm Friday until before school or otherwise 9 am Monday commencing on the first weekend of school term in odd-numbered years and commencing on the second week of school term in even-numbered years, and on each Tuesday from after school or otherwise 3 pm until 5 pm.
Upon the said child commencing school and thereafter during gazetted school holidays in New South Wales terms 1, 2, 3 and 4, in odd-numbered years, for the first half of school holiday periods from after school on the last day of school term until 10 am on the Saturday nearest the midpoint of the school holiday period, and, in even-numbered years, for the second half of the school holiday period from 10 am on the Saturday which is the nearest to the midpoint of a school holiday period until 5 pm on the day before school is resumed.
For Christmas as follows: in each even-numbered year from 10 am Christmas Eve until 10 am Boxing Day, and in odd-numbered years from 10 am Boxing Day until 10 am 28 December. On the child’s birthday as follows: in even-numbered years from 5 pm 30 December until 10 am 31 December, and in odd-numbered years from 5 pm 29 December until 5 pm 30 December. On the Father’s Day weekend, from 5 pm on the Saturday of that weekend until 4.30 pm Sunday of that weekend.
The father’s time shall be suspended as follows. For Christmas as follows: in each odd-numbered year from 10 am Christmas Eve until 10 am Boxing day, and in each even-numbered year from 10 am Boxing Day until 10 am 28 December. For the child’s birthday as follows: in each odd-numbered year from 5 pm 30 December until 10 am 31 December, and in each even-numbered year from 5 pm 29 December until 5 pm 30 December. On the Mother’s Day weekend, from 5 pm on the Saturday of that weekend and for the balance of that weekend.
For the purposes of implementing the orders, the mother sought initially that there be a six-month period of the parties’ continuing handovers between themselves at (omitted), and following the expiry of the six-month period, the parties meet at the main counter inside the McDonald’s family restaurant at (omitted). Other ancillary orders were sought by the mother that the Court will deal with later on.
By way of background, the father was born on (omitted) 1982 and the mother was born on (omitted) 1982. The parties commenced cohabitation living in (omitted), on the father’s evidence, in July of 2010, and, on the mother’s evidence, in early 2011. For the purposes of these proceedings, the actual date of cohabitation is unimportant. Both parties work as (omitted) with the mother working three days per week. In about June 2013, the parties moved to (omitted).
In late October 2013, the mother left employment in the lead up to X’s birth in December of 2013. It is uncontroversial in this matter that X experienced sleeping difficulties following her birth. The parties attended (omitted health organisation) in September 2014 seeking assistance. The mother gave evidence of experiencing a difficult relationship with the father where the father was not supportive of the mother and changed his attitude and demeanour towards her once she was pregnant, saying such things as “you are so lazy, all you do is sleep”. It is apparent the parties began bickering with the mother suggesting the father would become upset if he did not get his own way.
The mother gave evidence of being physically assaulted by the father. The mother accepted that the allegations of physical violence by the father were ones where it was the mother’s word against the father’s. The parties separated under the same roof on 27 September 2014. The father visited with X staying at his family’s home for some eight nights in or on about 9 November 2014. During this period, it is apparent the mother travelled down and also stayed in (omitted).
The parties attended mediation at (omitted family counselling service), (omitted), on 21 November 2014, and an arrangement between the parties was reached whereby X spent time with the father three nights in one week and one night in the other. The mother suggested such an arrangement was disruptive to X’s sleeping patterns. The parties ceased residing under the same roof in or on about 3 December 2014. Ultimately, the father commenced these proceedings.
On 17 February 2015, orders were made that provided for X to live with the mother and spend time with the father each Wednesday, Friday, and Sunday between the hours of 11 am to 4.30 pm. At that time the Court ordered that the parties attend upon a child inclusive child dispute conference. When the matter came back before the Court on 18 May 2015, orders were made by the Court that saw X continue to live with the mother and spend time with the father each Wednesday, Friday, and Sunday from 8 am until 5 pm until 18 August 2015 and, subsequent to that date, X spend time with the father one overnight period each week and two days each week from 8 am until 5 pm.
On 24 August 2015, the mother filed an application in a case seeking the handover of X be facilitated through (omitted contact centre). Orders were made by consent on 21 September 2015 that provided for the parties to utilise the changeover services of (omitted family counselling service) and with orders made 18 May 2015 being amended whereby X would spend time with the father each Wednesday and Friday from 9 am until 5 pm.
During the father’s evidence and having read his affidavit material, the father made no complaint about the mother with respect to her care of X. In fact, the father suggested the mother was a good mother. The father agreed during cross-examination that the mother is X’s primary attachment figure. The father agreed that he had previously sought orders that X live primarily with the mother, as the mother was X’s primary attachment figure.
The father agreed the mother was not a risk to X and that the mother is capable. The father suggested that the mother reduced the amount of time X was spending with the father in January of 2015. Despite what the father suggested at paragraph 70 of his affidavit to the effect that the mother failed to respond to a request for information about X’s sleep, the Court finds the mother did provide information about X’s sleep, notably, in her email to the father that forms exhibit B in the proceedings.
The father failed to include in his material evidence about the parties’ positive communication. The father said that the passing of information is not adequate to the shared care of X. The father gave evidence at paragraph 88 of his affidavit that he sent the mother 26 emails following changeovers of X between the parents for the period 25 October to 16 November 2015. The father complained that the mother’s response to his emails lacks what he described as the level of detail he desires.
Some eight emails passed between the parties about X being immunised. There was a disagreement where the father sought to attend the immunisation of X.
The court heard the father spoke to the mother about the maternal uncle having been at McDonald’s to undertake a changeover and then threatening the father physically. The father described during cross-examination that he was satisfied the matter had resolved and did not himself seek to agitate orders about changing venue or precluding the maternal uncle attending handovers, as he was satisfied, having spoken to the mother about the issue.
The father agreed during cross-examination that the handovers of X at (omitted family counselling service) were going well. The father gave evidence of having received communication back from the mother. The father suggested that the communication was inadequate or insufficient rather than simply accepting the same on the basis that it would do or was good enough. It was the father who caused complaint during the proceedings in his cross-examination about the parties’ communication.
The father gave evidence that the parties are civil to one another, however, there are difficulties when it comes to communicating about X. The father gave evidence that he did not wish for X to be burdened by having to communicate on behalf of the parents because of their difficulties. During the course of the cross-examination, there was some focus on the father’s discussions with workers at (omitted family counselling service) about the proceedings.
It is apparent that the parents used what is best described as a parent-to-parent communication sheet at (omitted family counselling service). The sheets were used by the parents to pass on information to one another through the contact handover service. When asked about his communication with (omitted family counselling service) staff, given the job they do, the father gave evidence he felt the conversations he had with the workers was not a good idea.
The notes tendered that form exhibit D tend to suggest the father has made comments to the workers at (omitted family counselling service) that are inappropriate and otherwise demonstrate poor communication between the mother and the father. The Court finds the father had had numerous conversations with workers at (omitted family counselling service) about the case, including legal costs. The father appeared to the Court genuine about his view that those discussions were inappropriate.
The father denies that he has ever denigrated the mother at the contact centre. The father gave evidence in cross-examination that there were things the parties spoke about that he could not recall. There appeared to the Court to be an ongoing issue between the parents about getting X’s hair cut. The mother asked the father not to have X’s fringe cut, as she was trying to grow it out. The father had her fringe cut anyway.
A further issue was raised during the proceedings with respect to the father changing X out of her clothes that she came in at handovers. The Court is hopeful, having heard the cross-examination of Ms C, that the father will desist from doing the same. The father accepted that he had made various comments with respect to X’s shoes being too small or where X’s hair has been knotty. It is apparent the father attended upon two sessions with (omitted family counselling service) in preparation of the parties entering into family therapy and also a building connections course. The Court notes the father’s evidence where he suggested he had attended 160 times for handovers at (omitted family counselling service).
The mother relied upon her affidavit filed on 14 January 2016. After X was born, the mother took a year off work to care for X. The mother was asked questions about playing (omitted) on Thursday nights after X’s birth and on some occasions when she went out for a swim. It is apparent the mother omitted from her affidavit that the father had at times looked after X while the mother was either playing (omitted) or swimming.
The mother was asked some questions during cross-examination about X attending upon (omitted health organisation). The mother was asked about whether she had indicated to (omitted health organisation) whether there was family violence. The mother was shown a document created by (omitted health organisation) on 2 September 2014. The document indicated the mother had indicated there was no family violence.
The mother agreed that, following separation, the parties continued to live under the same roof. The mother recalled the father taking X to visit the paternal grandparents in (omitted) in 2014, and the mother agreed that she had allowed the father to take X away for five nights. It was put to the mother that it could have been as many as eight nights. The mother gave evidence that she could not recall.
Following the parties attending mediation in late 2014, X began spending time with the father three nights in one week and one night in the other week. The mother suggested that the arrangement caused disruption to X’s sleep patterns.
It was the mother’s evidence that she pulled the time back to daytime access as a result of those disruptions. On 17 September 2015, the parties attended Court. Orders were made for daytime only contact until 18 August 2015. Time then occurred one night per week and daytime each Wednesday to Friday. Despite X’s change in age and the orders sought by the mother for a progressive incremental increase in time, X only continued to spend one night and two days each week with the father.

Despite no orders being in place, X spent time with the father from 4 pm Christmas Eve until 4 pm Christmas Day in Christmas 2016. X did not spend time with the father on her birthday, as the parties had what the mother described as an alternate birthday arrangement. On 28 December 2016, two days prior to X’s birthday on (omitted) 2016, the father sought Skype access and communication with X.
The mother gave evidence she went away camping to a place with no telephone reception and did not tell the father. When asked questions about how X might have felt, the mother gave evidence that she did not think it was important for X to speak to the father on her birthday. Exhibit H is an email from the father to the mother dated 28 December 2016. The email reads:
Hi [Ms Swain]. X had a good day today; she has been really well with no issues. I will not see X at all for her birthday this year and for the four days surrounding her birthday. I would really appreciate the opportunity to have a talk with her on FaceTime to wish her a happy birthday on Friday, (omitted).2016. Please let me know what time suits you the best? X's FaceTime address is (omitted). Thanks.
The mother accepts she did not respond to the father. The mother, in the view of the Court, lacks insight as to the importance of X’s relationship with the father. The mother’s view about it being unimportant for X to speak with the father on her birthday is disappointing.
The mother gave evidence of the father perpetrating family violence. The mother’s assertions are denied by the father. Counsel for the father asked the mother as series of questions in cross-examination for the purposes of demonstrating the mother was not fearful of the father. The Court accepts that the mother has over a period of time been quite fearful of the father, having regard to her evidence.
The mother was asked a number of questions by (omitted health organisation) about family violence. The answers given by the mother through (omitted health organisation) indicate the mother was frightened, but denied family violence. Given the evidence, the Court is not able to make a finding as to whether there was or was not family violence in the parties’ relationship. By way of example, the maternal grandmother was living with the parties on at least one occasion the father is alleged to have perpetrated family violence.
Similarly, the mother’s brother is alleged to have been present at the parties’ home on an occasion when the father perpetrated family violence upon the mother. The Court notes neither the maternal grandmother or the mother’s brother gave any evidence in these proceedings.
The mother agreed in cross examination that a major factor in a decision to limit the time with X was her unsettled sleeping patterns. The mother went back to (omitted health organisation) in late 2015 after going to her GP.
The mother agreed that she did not consult the father about going to the GP or (omitted health organisation). The mother suggested that in hindsight she should have spoken with the father about it. The mother did tell the father a few weeks prior to commencing (omitted health organisation) and the mother agreed the father was annoyed by the mother’s failure to inform the father sooner. Ultimately on the topic, the parents did go to (omitted health organisation) together. It would appear there was some issue about the father being observed with X for two consecutive nights at (omitted health organisation).
The family consultant suggested in her report at paragraph 64 the benefit of the father being observed for two nights with X at (omitted health organisation). Despite this, the mother caused her lawyer to forward a letter to the father’s solicitor advising that the mother would only allow one overnight session, being 4.30 pm, 23 November 2015 until 10 am 24 November 2015. The mother was unable to offer an adequate explanation for her failure to allow X to be observed for more than one night with the father at (omitted health organisation).
On 25 November 2015, the mother and father were discharged from (omitted health organisation). The father then took X back in the car to do a handover between the parents at (omitted family counselling service). The mother suggested she felt that she had achieved her goals at (omitted health organisation). The mother agreed in cross examination that she did not speak to the father about what she had learnt at (omitted health organisation).
Despite all the issues with respect to X’s sleeping, the situation is now this. The mother gave evidence that X is now sleeping well. The mother had sought assistance from family and friends to facilitate handovers. The mother now works three days per week teaching (omitted) at TAFE and on some occasions as a (omitted). On 20 July 2016, X was alleged to have been dropped off smelling of bleach. The father made complaint about this issue. The mother gave evidence on the topic during cross-examination where the Court formed the view the mother was dismissive of the father’s concerns. The mother commenced counselling with (omitted family counselling service) in an attempt to improve communication. The mother went to two sessions. (omitted family counselling service) suggested that it would have been appropriate for the parties to engage in some joint sessions with the father. The mother and father did not engage in any joint communication sessions.
The mother suggested that incidents between the parties of a difficult nature ceased once the parties began using (omitted family counselling service) as a supervision service for the handovers. It is apparent that direct changeovers are now in place and the parties ceased using (omitted family counselling service) to supervise handovers some time in March 2017. The mother did a parents not partners course with an individual counsellor. The mother gave evidence that she is aware the father did a parents not partners course in a group setting at (omitted family counselling service).
Having heard the mother’s cross-examination, the Court forms the view that the communication between the parties seems to be getting somewhat better. On 6 February 2016, the parties met together at X’s doctor when X became sick while spending time with the father. After visiting the doctor, the mother took X home. This demonstrates, in the view of the Court, a child-focused level of communication where the parties were able to resolve difficulties in relation to X.
The mother gave evidence that she can foresee a time where there will be no longer involvement of (omitted family counselling service) at handovers. The mother seeks an order, the Court notes, that (omitted family counselling service) continue for six months and the parties then move to a handover at (omitted) McDonald’s. The mother agreed during cross-examination that she and the father had been communicating satisfactorily about X’s health, doing so in March 2017 at a time when the parties suspected X may have been suffering an illness.
The mother agreed that the level of conflict between the parties had diminished over time. The mother suggested that her fear of the father has reduced, but that the parties have continued conflict in their communication. The mother suggested that she is actively working with (omitted family counselling service) to resolve the parties’ conflicts so that they could have a courteous relationship. When asked about their current communication, the mother described the current communication as at times being courteous.
The mother indicated that on a few occasions X had expressed to her a desire to spend time with the father. The mother acknowledged that X seemed to like spending time with the father and that the father is a loving, caring father. The mother agreed that she also needs to work on her communication skills with the father. The mother felt the father needs to keep the communication child focused. The mother gave evidence that she sought sole parental responsibility because of what she described as communication issues. The court notes that the mother had initially sought equal shared parental responsibility at the start of the hearing.
The family consultant gave evidence of ongoing conflict between the parties such that equal time would not be appropriate. The family consultant agreed it was her view that, if sleep was no longer an issue, the child should spend more time with the father. The family consultant was clear in the answers she gave and the court formed the view the family consultant’s answers were well considered. Ms C’s report prepared in October 2015 made recommendations at paragraphs 66 to 68 as follows:
It is recommended that the parties have shared parental responsibility for decisions regarding the subject child.
It is recommended that X live with the mother.
In relation to X’s time with the father, it is recommended;
(i) In relation to the final arrangement, for X (to commence when she starts school), if the Court finds the father is emotionally abusive and hostile towards the mother then X should spend time with the father each alternate weekend (Friday until Monday) and two afternoons per week. If the Court finds the father does interact appropriately with the mother and X, then it is recommended that X spend time with her father five nights per fortnight (every Thursday overnight and each alternate weekend Friday until Monday).
(ii) When X commences school she should spend half of the school holidays with each parent and special occasions should be shared.
(iii) If there are issues with X’s sleeping in both households then I am unable to make recommendations as to the graduation of time for X with the father at this point in time. I note that I would still propose that final parenting arrangements be implemented when X commences school. This would mean that in the latter stages of graduation, the increased overnight time would occur at a more rapid pace than otherwise.
(iv) If the Court finds that it is X’s best interest to continue to spend overnight time with the father, with such time increasing, then the following suggestions are made on how this could occur:
a) 2015 (1+ year of age): One overnight per week (as per current).
b) 2016 (2+ years): three nights a fortnight (maximum two consecutive), although two block periods per year of three consecutive nights.
Note: if X is going to be spending three nights a fortnight with the father when she commences school then this arrangement (b) shall continue until 2020. In 2019, however, these arrangements should be moved to the weekend (if this has not occurred previously) to ensure that X is in a familiar and well settled routine when she commences school. Block time should increase each year as per the suggestions below to ensure that she is able to manage extended school holiday time.
If X is to spend five nights a fortnight with her father when she is at school then the following graduation is recommended:
c) 2017 (3+ years): four nights a fortnight (maximum two consecutive, with the exception of block time), four blocks per year of three consecutive nights.
d) 2018 (4+ years): four nights a fortnight (maximum three consecutive), four blocks per year of four consecutive nights.
e) 2019 (5+ years): five nights a fortnight with a focus on building towards a final orders – should mirror school arrangements as much as possible (i.e. Thursdays and alternate weekends), four block per year of five consecutive nights.
f) 2020 (commencing school) – as per previously recommendations – [66(i)].
At paragraph 54 onwards under the heading Evaluation, Ms C suggested:
X is on a positive developmental trajectory and has mutually loving and warm relationships with both parents. This is a credit to both parents.
The parenting style of the parents appears to be quite similar, they are child led and appear to be very gentle in their parenting of X. Whilst it is important to be attuned to a child’s needs and to work collaboratively with the child where possible, the parents need to be aware that they are likely to come across some difficulties if they continue this style of parenting into the future (in my view, this is already a problem in relation to settling to sleep in both households). In essence, they are setting up a dynamic which gives X the power which she is likely to use more as she gets older (making it harder to enforce boundaries) and the constant power struggle which will ensue is likely to be exhausting for the parents. The older X gets, the harder it will be for her (and the parents) to break any established patterns (such as co-sleeping). It is anticipated that the impending visit to (omitted health organisation) will reinforce these issues with the parents and will hopefully provide the parents with strategies they can both use for their care of X.
Given that the mother has clearly been the primary attachment figure and there are no issues of risk for X in her household then it is recommended X live with the mother.
Although the mother has given some concerns about X being subject to emotional harm in the father’s household, I am of the view that X is likely to benefit from having a meaningful relationship with both parents.
Whilst the father is desirous of a shared care arrangement, there is not a foundation of trust, co-operation and communication in place to support that this would be in X’s best interest. Children need predictability and consistency, and this is simply not possible where parents do not effectively communicate and cooperate. A shared care arrangement would mean that X would have to manage and negotiate the parental conflict, inconsistent parenting arrangement/strategies, and a number of physical environments. This is likely to be physically and emotionally draining, particularly where her coping resources are either not well enough developed to manage such an arrangement, or when they are already stretched with meeting normal developmental demands.
In assessing the amount of time that X should spend with her father it will important for the Court to assess the differential contribution of the parents to the current poor communication between them. That is, whether the father is emotionally abusive towards the mother as a form of ‘revenge’ or personality style and/or whether the mother is deliberately engaging in a pattern of behaviour designed to minimise the father’s time with the child. This issue is important as it will provide some indication as to each parent’s capacity to be child focused and to appropriately provide for the emotional needs of X. If the Court is of the view the father is engaging in a child focused manner and the mother is deliberately blocking open communication, then X should spend more time with the father. If the father is emotionally abusive and/or hostile towards the mother then it would not be in X’s interest to spend significant and substantial time with him.
Regardless of the genesis of the conflict, the parents need to be acutely aware that one of the most salient factors which predicts children’s adjustment post parental separation is how well the parents are able to co-operate and communicate with each other.
Specifically, if the parents are not able to address the conflict between them then X will be at heightened risk of developmental consequences commonly seen in children living in high conflict situations which include;
inability to manage conflict and normal periods of difficulties in peer relationship due to the lack of positive role modelling from parents about the management of conflict.
manifestation of significant mental health difficulties including anxiety and depression.
developmental milestones not being achieved as a result of lack of stability in a familiar environment and interjecting conflict.
being forced to choose one parent over the other as a means of escaping the ongoing conflict; or alternatively, premature removal from both households and living with friends.
poor self-esteem as a result of trying to resolve feelings of guilt and disloyalty.
The other significant issues which will ultimately contribute to the nature of the future parenting arrangements are X’s young age and the current associated concerns in relation to her sleeping difficulties. In this regard the information obtained from (omitted health organisation) after the parents and X attend in November 2015 is likely to be extremely relevant. If the information supports that X has no difficulty sleeping in the care of the father then there does not appear to be any impediment to X continuing to have overnight stays with the father and, indeed to her building her overnight time with the father. If the information suggests that there are real ongoing difficulties with sleep in the company of both parents then great caution should be exercised when considering whether additional overnight time should occur. To assist in this assessment of this issue it may be of benefit to ensure the father is as involved as possible in the (omitted health organisation) process (separately from the mother).
It would be preferable if arrangements could be made for the father to be observed on at least two overnights during the process as well as during day times. This would need to be negotiated between the parents and their solicitors prior to attending.
The family consultant raised concerns about the father continuing to change X’s clothes at handovers, as it did not show a child focused parenting approach. Ms C gave evidence if the father was being subtle in his denigration of the mother to X and disparaging of her, then the father should spend less than substantially significant time with X. Ms C was shown an entry made by (omitted family counselling service). The entry suggested that X had told (omitted family counselling service) the mother will be angry if she spends time with the father.
The family consultant gave evidence that she would be cautious to provide an opinion without speaking to X, as it may have been something the father said to X. Ms C was shown a separate document that suggested X had said on another occasion the mother will be angry if X spends time with the father. Ms C expressed the same caution. Ms C felt (omitted family counselling service) handovers were going well and suggested no concerns around the mother engaging other people to facilitate handovers if they were well known to X.
Ms C reiterated at the end of her evidence the need for the parties to participate and engage in child focused parenting. Most notably, Counsel for the mother did not cross-examine Ms C or ask her any questions around her recommendation that the parties have equal shared parental responsibility. In submissions for the father, counsel for the father suggested that the father had been involved in caring for X since birth. The Court accepts that the father was involved more than perhaps suggested by the mother but to a very much lesser extent than that of the mother, who was X’s primary caregiver.
Counsel for the father suggested contact between the parties has been taking place directly since March 2017. Submissions were made by Counsel for the father to the effect that the mother had failed to disclose family violence to (omitted health organisation). As set out previously, there is insufficient evidence to make a finding about whether the father did or did not perpetrate family violence upon the mother in these proceedings. Counsel for the father submitted that the family consultant had suggested the father be observed with X over a two night period at (omitted health organisation), and that, despite this suggestion, the mother chose not to allow the same to occur.
While such submissions add weight to the argument that the father was not the cause of X’s sleep issue, the court need make no finding on the topic in these proceedings, where the mother gave evidence that X’s sleeping patterns are going well, and it is no longer an issue. It would appear the parties have had close on 200 changeovers between them. Counsel for the father submitted that the mother accepted in her evidence she had no fear of the father if other people were around.

Counsel for the father suggested that, while the mother gave evidence of the parties having difficulty in their communications, as to the reason for changing her application to one of sole parental responsibility, it was submitted that the email communication between the parties in 2017 demonstrated a reasonable level of communication, at least around medical issues. The Court gives some weight to that submission.
Counsel for the father pointed out the family consultant had recommended equal shared parental responsibility.
Counsel for the father made submissions referring to section 65DAA subparagraph (5), suggesting the parties live close enough to one another, some 20 minutes away, to make equal time reasonably practicable; the parties have the future capacity to implement an arrangement of equal time, and, while the parties have issues about communication, it is not to such an extent that equal time ought to be excluded. Counsel for the father suggested if the Court was against equal time, then the father would seek substantial and significant time.
Counsel for the father suggested the mother had failed to communicate about preschool start dates, which had meant the father had been prevented from attending X’s first day at pre-school. Counsel suggested some negative aspects of the mother’s parenting, having failed to respond to the father’s email for Skype communication on X’s birthday. Counsel for the father suggested, as noted by the family consultant, X has a warm loving relationship with both parents. It was submitted by counsel for the father that the father had not missed spending any time with X.
Counsel for the father suggested that the father had demonstrated his desire to undertake counselling to assist the parties in undertaking child focused communication. Counsel submitted that the father’s inappropriate discussions with (omitted family counselling service) occurred at a time before the father had undertaken the parents not partners course and further suggested caution giving weight to those documents tendered that contained notes produced from (omitted family counselling service) about the father’s discussion where the authors of such notes were not available for cross-examination.
Counsel for the mother suggested documents created by (omitted health organisation) tendered in the proceedings were not inconsistent with the mother’s evidence of family violence. Counsel for the mother properly suggested a large volume of the material about X’s sleep is historical, where the issue has now gone away. Submissions were put by Counsel for the mother that this is not a case about the father’s capacity to care for X; rather, it is a case about the father’s ability to communicate and X’s ability to negotiate between the parents’ conflict.
Counsel for the mother suggested that the father had some problems around his credit where the father failed to disclose emails sent to him by the mother. Submissions were made that there were communications between the parties where the mother had taken on board some of the father’s suggestions, such that the Court would not find the mother had been obstructive in X’s relationship with the father.
Counsel for the mother suggested the father is misrepresenting the mother’s obstruction of the father’s relationship with X. This submission, of course, requires the Court to ignore the mother’s failure to respond to the father’s email about having FaceTime communication with X on her last birthday, the mother taking X away on her birthday camping, without advising the father, to a location where there was no telephone reception. The mother’s lack of insight around X’s communication with the father on her birthday during cross-examination caused the Court some concern. The mother’s failings in respect of the birthday is of added weight where the parties were before the Court part-heard, and the mother was on notice her actions would likely be brought to the attention of the Court.
Submissions were made on behalf of the mother around the cautioning made by the family consultant where X is trapped in the parties’ conflict. Counsel for the mother suggested the mother’s application to limit time between X and the father is one brought for the purposes of limiting X’s exposure to the father’s conduct. The Court is conscious of the answers given by the mother during cross-examination with respect to her change in respect of sole parental responsibility being in relation to communication. Counsel for the mother suggested the case is one about conflict and the Court should be cautious about any suggestion the parties’ communication has improved.
Having heard the mother’s cross-examination, the Court is, however, comfortable both parties are, taking steps, such as attending the parents not partners course, in order to address their communication deficiencies. The mother gave evidence in cross-examination about being in part responsible for the failures in communication. The father failed to make such an acknowledgment in cross-examination. It is important for the Court to view this in circumstances where the father’s cross-examination occurred at a time before his attendance at the parents not partners course and the mother’s cross-examination followed her completion of the parents not partners course.
Counsel for the mother suggested that the father’s approach towards the mother would mean it would be difficult for the parents to make decisions and that this conflict would lead to the institution of future proceedings such that the court would find against an order for equal shared parental responsibility. This submission lacks some weight where counsel for the mother did not ask a single question of the family consultant, Ms C, on the topic of parental responsibility particularly where Ms C was aware of the conflict between the parties and had made recommendations that parties have equal shared parental responsibility.
Counsel for the father suggested, in response, this is not a high conflict case and that the concerns expressed by counsel for the mother to the effect X will be psychologically damaged by the parties continuing to engage in conflict is speculative. Counsel for the father suggested the father has learned it is to the benefit of X the parties improve their communication.
I turn to those matters set out at part 7 of the Family Law Act 1975, first turning to section 60CC. Section 60CC provides a set of considerations the Court must take into account when making a determination as to what is in the best interests of the child.
Subparagraph (2) provides for two primary considerations, subparagraph (b) having primacy over subparagraph (a). Section 60CC subparagraph (3) provides for a set of additional considerations the Court must take into account when determining what is in the best interests of the child. There are no arguments in these proceedings that there is no benefit in this child having a meaningful relationship with both parents, and, indeed, the Court finds there is a benefit in X having a meaningful relationship with both parents.
The court must consider the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
This is not a no contact matter. This is a case where the court is confronted with two parents arguing for a set of parenting arrangements that while vastly different, both parents seek there by overnight time.
Both parents seek there be block periods of time.
Having heard the parties’ cross-examination about the other parent, the court finds that the child will not be subjected to or exposed to abuse, neglect or family violence causing the child physical or psychological harm in the care of either parent or in their household.
The court must take into account any views expressed by the child and any factors such as the child’s maturity or level of understanding the court thinks are relevant to the way it should give those child’s views.
X is only three and a half years of age. She is in a position where she has no level of understanding about the relationship she finds herself in with both parents.
Indeed, X probably would never remember a time when her parents lived with one another.
She very much does what her parents tell her to do, given her age.
She has no level of understanding or real ability to express any views about what arrangements should be made for her care or time arrangements with the parties.
X lacks maturity to provide views particularly given her age.
The court finds the nature of the relationship between X and her parents is an extremely good one: they have a loving, caring relationship.
The court finds that, to the best it can, the nature of the relationship between X and her grandparents is also a loving, kind relationship.
The parties have participated in making decisions about long-term issues in relation to X.
The parties have spent time with X and they communicate with her.
Despite some of the failings of the parties, they have fulfilled their obligations to maintain X.
The court considers the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person, including a grandparent with who she has been living.
X lives with the mother and X spends time with the father.
The father seeks an arrangement of seven nights on, seven nights off. Such an arrangement would see a significant change in the nature of the relationship X has with the mother.
There would be a significant separation of X from her mother, such that the court considers it would cause her a detriment given her age and given that she is primarily attached to the mother.
The mother seeks an arrangement of less than substantial and significant time.
The court is of the view that if the court made an order, for instance, for an increase in time such that it was substantial and significant time, the change in X’s circumstances as a result of a reduction in time X would spend with the mother would not be so substantial that it would cause a detrimental effect upon X.
That is, if X were to spend something akin to four nights, or perhaps 5 nights with the father over a period of time and then for some block periods, the nature of the relationship between the child and the mother would not be dislodged. It would not cause X a disruption in her attachment. It would not be detrimental to her, and in fact, it is the view of the court, having regards to the nature of the relationship between X and the father the effect would be one of positivity.
There are no practical difficulties or expense impacting upon of X spending with and communicating with either parent such that it would affect her right to maintain personal relationships with the parents.
These parents have the capacity to provide for the needs of X including her intellectual and emotional needs. And again, despite some of the shortcomings of the parties and their communications, and despite some of the decisions that they have made, the parties have the capacity to provide for the needs of X, including her intellectual and emotional needs, and have done so.
There is nothing in the maturity, sex, lifestyle and background of the child or of either the child’s parents the court gives weight.
The court is not aware the child is an Aboriginal or Torres Strait Islander child.
The court considers the attitudes to the child and the responsibilities of parents are demonstrated by each of the child’s parents. The parties have had some failures with respect to communication. The father, on some occasions, has shown a lack of respect towards the mother. The mother has made some decisions with respect to X, including at least one on her birthday of recent times, that the mother should have otherwise thought better of.
Despite the parties’ shortcomings the court does find that the parents have a loving attitude towards their child. They are responsible parents; they are doing the best they can in a sometimes conflicted relationship.
The court considers whether there has been family violence involving the child or a member of the child’s family. Again, noting the state of the evidence where it is really one’s person word against the other, where perhaps some third parties who may have witnessed family violence did not given evidence in these proceedings, the court again says the court is unable to make any finding as to whether there was or was not family violence perpetrated by the father upon the mother.
There is no family violence order that applies or has applied to the child or a member of the child’s family.
The court must consider whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
Counsel for the mother suggests the order that would be least likely to lead to the institution of further proceedings would be one of sole parental responsibility.
The court must consider whether it is preferable to make that order.
The court noted that on some occasions the mother has not provided information to the father, where the father has sought to be included in arrangements for X and the parties changing relationship where the parties in recent times have been able to communicate such that made arrangements around X’s health, they have made compromises and resolved issues that might otherwise cause difficulties. Accordingly the court does not give this consideration significant weight.

Family Law Act considerations

The court turns to section 61DA the presumption of favour of equal shared parental responsibility rebutted by reasons of family violence, abuse of the child or another child in the child’s household or otherwise where it’s not in the best interests of the child that the parties have equal shared parental responsibility.
Having considered those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m), having considered the submissions made by counsel for the mother, to the effect an order for sole parental responsibility would be least likely to lead to the institutions of further proceedings and having considering whether it would be preferable to make such order, where these parties should work together; having considered whether it is X’s best interests that the parties must communicate where they must compromised, where they must sort out arrangements for such things as her education, for her health, for her religion. It is the view of the court that it is in the best interests of X that the parties have equal shared parental responsibility.
The court does not rebut the presumption by reasons of the court having made findings about family violence, nor does it rebut the presumption by reasons of the court having made findings around abuse.
The court is required to consider those mattes set out a section 65DAA having found in favour of the parties equally sharing parental responsibility. This section provides the court to consider the child spending equal time or substantial and significant time with each parent in certain circumstances.
Subparagraph (1) provides that subject to subsection (6) if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility, the court must:
a)Consider whether the child spending equal time with each parent would be in the best interests of the child; and
b)Consider whether the child spending equal time with each parent is reasonably practicable; and
c)If it is, consider making an order to provide or include a provision for the child to spend equal time.
Subparagraph (2) provides that if:
a)a parenting order provides (or is to provide) that a child’s parents have equal shared parental responsibility for the child; and
b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
One understands quite well the meaning of equal time.
Substantial and significant time is a term that is defined in subparagraph (3) of section 65DAA, to include:
for the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
a)the time the child spends with the parent includes both:
i)days that fall on weekends and holidays; and
ii)days that do not fall on weekends or holidays (in other words, week days); and
b)the time the child spends with the parent allows the parent to be involved in:
i)the child’s daily routine; and
ii)occasions and events that are of particular significance to the child; and
c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The court firstly turns to equal time. Having considered those matters set out at section 60CC, most notably the effect of the separation of the child from the mother, the court finds that equal time would not be in the best interests of X. She is simply, in the view of the court, too young to facilitate that time where she’s primarily attached to the mother and an arrangement of seven nights on, seven nights off would cause her detriment by reason of that separation.
The court considers subparagraph (5) of section 65DAA whether it is reasonably practicable for there to be equal time. It is true the parties live close enough to one another for there to be equal time. The parents do have the current and future capacity implement an arrangement for the child spending equal time. The court is concerned about the parties’ communication, such that the court does find that whilst the parties’ communication is getting better, it is not to the extent so good that the parties have the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of equal time. The court must also consider the impact an arrangement of that kind would have on the child. Again noting X’s age, it is the view of the court than an equal time arrangement for a three and a half year old child would be detrimental to her best interests.
Having found that equal time is neither in the best interests of X, nor reasonably practicable, the court turns to whether there should be substantial and significant time.
Having regards to those matters set out in section 60CC(2)(a) and (b), (3)(a) through to (m), having given weight to the effect of the separation of the child from the mother with respect to equal time, having previously considered it with respect of substantial and significant time, the court does not make the finding that it did with respect to equal time. The Court finds substantial and significant time would not cause a detriment to X as a result of being separated from her mother.
The court otherwise has considered those matters with respect to (2)(a) and (b) and otherwise those matters set out at section 60CC(3)(a) through to (m). The court finds that having regard to those matters it would be in the best interests of X to spend substantial and significant time with the father, having regards to its definition found at subparagraph (3) of section 65DAA, such that X should spend time with the father on days that fall on weekends and holidays and days that don’t fall on weekends and holidays and the time that the child spends with the father allows the child to be involved in the child’s daily routine and occasions and events that of particular significance to the child.

It is important, in the view of the court, that X sees some balance in respect of the parenting she receives from both parents.
It is easy for a father to have a different parenting style where the child would spend less than substantial and significant time with him.
The court considering the time X spends with the father allows the father to be involved in the child’s daily routines.
It is important in the father’s household and the mother’s household that she hears the same thing, that there are bedtimes in both parents’ households, that she hear from the father – not just the mother – such things as, “X, get out of bed. Get up, get your clothes on. Get downstairs” – if you live in a two-bedroom home – “Eat your breakfast. We’ve got to get out the door. We’ve got to go to school. X, sit down and do your homework. I’ve told you, put down the iPad” – and I know she probably does not play one yet, but no doubt she will – “Stop whatever else you are doing”. “Concentrate, you need to do your homework”. “No, we cannot eat McDonalds every day this week.” Those are the things a father needs to say. Those are the things a father will not necessarily have to say in the view of the Court if the father is not mentioned in X’s daily routine.
If the Court adopted the orders sought by the mother, there would be two households with potentially significantly different rules. The father could very much do what he wants. If X wanted to do such things as have McDonalds every day, what would it really matter if his time was limited? The father would not have to complain to X to do her homework or do such things as get her to school. X could be left in a situation where she sees the mother as the rule maker; as the harder parent of both, where the father is the easier parent to get along with.
Considering the parent being involved in the child’s daily routine is important, because it provides a balance to the view X has of the parents. Not the hard mother and easy dad. The Court gives significant weight when determining what is in X’s best interest. The Court is, however, required not to just consider what is in the best interests of X, it is also required to consider whether it is reasonably practicable.
The parties do live close enough to one another to facilitate an arrangement of substantial and significant time. The Court is asked to consider the parties’ current and future capacity to implement an arrangement for the child spending substantial and significant time. The parties certainly have that capacity, noting their working hours that they work and the jobs that they work. The Court must consider the parties current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of substantial and significant time.
Substantial and significant time is a lower bar than that of equal time. The Court did find that the parties lack the current and future capacity to communicate sufficiently and overcome issues that arise in implementing an arrangement of equal time. The Court finds that the parties have the current and future capacity to communicate sufficiently to resolve difficulties that might arise implementing the child spending substantial and significant time with the father whereby, essentially, the child will ultimately spend something akin to five nights with the father.
Importantly, the mother should note the child would spend nine nights with her. Close on almost twice as much time as X would spend with the father. An arrangement of nine/five. It is the view of the Court the impact that arrangement would have on X would not be great. In fact, the impact would be one of benefit to X. She would enjoy a meaningful relationship with her father. The relationship would continue to build. She would maintain her ongoing relationship with the primary carer by spending at least, nine nights a fortnight with the mother and five nights a fortnight with the father.
The Court takes into account X’s age, and it does do so in making the orders it does make. It will not make an immediate order for five nights a fortnight because noting the age of the child, and having regard to those matters set out at section 60CC(3) the effect of five nights straightaway, in the view of the Court, would cause X some detriment where she would be significantly separated from the mother. It is the view of the Court that there needs to be a staged progressed arrangement. The Court makes orders for a staged progressed arrangement.
Having considered those matters set out at part VII of the Family Law Act 1975, including section 60CC(2)(a) and (b), 3(a) through to (m), section 61DA, section 65DAA, having found that there should be equal shared parental responsibility, not rebutted by reasons of family violence, abuse of the child or otherwise, that it was in the best interests of X that the parents have equal shared parental responsibility, having found that equal time is neither in the best interests of the child nor reasonably practicable, but having found that substantial and significant time is in the best interests of X and reasonably practicable, the Court makes the following orders:

I certify that the preceding one-hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 20 July 2017

[2017] FCCA 1699

4 July 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction