Sharp and Chester

[2013] FCCA 781

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARP & CHESTER [2013] FCCA 781

Catchwords:
FAMILY LAW – Whether mother has better ability to promote the emotional and psychological development of the child – whether father promotes the child’s relationship with the mother.

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

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

Starr & Duggan [2009] FMAC 115

Applicant: MR SHARP

Respondent: MS CHESTER

File Number: DGC 1249 of 2010

Judgment of: Judge Phipps

Hearing date: 8 May 2013

Date of Last Submission: 8 May 2013

Delivered at: Dandenong

Delivered on: 18 July 2013

REPRESENTATION

The Applicant: Appearing in person

The Respondent: Appearing in person

Solicitor for the Independent Children’s Lawyer: Ms Nicholls

Solicitors for the Independent Children’s Lawyer: Robin Harrison & Associates

ORDERS

1. All previous orders are discharged.

2. That the parties have equal shared parental responsibility for the child X born (omitted) 2009.

3. That the child live with the mother commencing 12 noon Wednesday 24 July 2013.

4. The child spend time and communicate with the father:

   (a)Until the child commences school each alternate week from Thursday at 12 noon to Tuesday at 12 noon commencing Thursday 1 August 2013;

   (b)Upon the child commencing school:

   (i)if the parties are both living within a half hour travel time from the child’s school each alternate week from after school Thursday or 3.30pm until before school Tuesday or 9.00am;

   (ii)if the parties are not both living within a half hour travel time from the child’s school each alternate weekend from after school Friday or 3.30pm if the father is able to collect the child at that time otherwise at a time agreed until 5.00pm Sunday;

   (iii)10 days of each school term holidays and three and a half weeks of summer holidays as agreed and if not agreed the first three and a half weeks.

   (c)Otherwise as agreed;

   (d)On the child's birthday and Father's Day at times agreed.

5. That the child shall spend Christmas with each party as follows:

   (a)If the parties are not living within a half hour travel of each other:

   (i)with the mother from 12.00 noon 24 December 2013 until 12.00 noon 26 December 2013 and each alternate year thereafter;

   (ii)with the father from 12.00 noon 24 December 2014 until 12.00 noon 26 December 2014 and each alternate year thereafter.

   (b)If the parties are living within a half hour travel of each other:

   (i)with the mother from 4.00pm 24 December 2013 until 2.00pm 25 December 2013 and each alternate year thereafter and from 2.00pm 25 December 2014 until 4.00pm 26 December 2014 and each alternate year thereafter;

   (ii)with the father from 2.00pm 25 December 2013 until 4.00pm 26 December 2013 and each alternate year thereafter and from 4.00pm 24 December 2014 until 2.00pm 25 December 2013 and each alternate year thereafter.

6. If Mother's Day is a day on which the child is with the father the child's time with the father shall be suspended or substituted as agreed.

7. For the purpose of the child's time with each parent, changeover when not at school will occur at the (omitted) Railway Station with only the parents attending in the immediate vicinity.

8. Each parent notify the other immediately in case of any illness or injury suffered by the child.

9. That the mother is restrained by injunction from bringing the child into contact with Mr W or allowing the child to have any such contact.

10. Each parent is restrained by injunction from consuming alcohol to excess or consuming any drugs other than those prescribed by a treating medical practitioner.

11. Each parent must advise of their current landline and mobile telephone numbers and address and advise the other of any change within 48 hours of the change occurring.

12. Each party is restrained by injunction from denigrating the other parent in the presence of or in the hearing of the child or permitting any other person to do so.

13. That the parties communicate by e-mail containing information about the child's needs and experiences.

14. That the father continue to attend as advised upon his psychologist.

15. That the mother to continue to engage with Child First and the Maternal Health and Child Welfare nurse.

16. The father is permitted to give the two Family Reports dated 14 September 2012 and 11 March 2013 to his mother for her to read.

17. That the order appointing the Independent Children's Lawyer is discharged.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

DGC 1249 of 2010

MR SHARP

Applicant

And

MS CHESTER

Respondent

REASONS FOR JUDGMENT

Proposals

1. The parties’ child X born (omitted) 2009 lives with Mr Sharp, his father, nine days a fortnight and with Ms Chester, his mother, five days a fortnight.  The mother proposes the times be reversed so that he lives with her nine days a fortnight and with the father five days a fortnight.  The father proposes the existing arrangement remain.

2. The parties live in different parts of the State of Victoria and if that is the case when the child commences school the only practical arrangement will be for the child to live with one parent and spend alternate weekends Friday night to Sunday evening and half or more of the school holidays with the other parent.  Each parent proposes that the child live with him or her and spend the weekends and part of school holidays with the other parent.

3. The Independent Children's Lawyer supports the mother's proposal.

Children’s provisions and issues

1. Significant issues are:

   a)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   b)Which parent is able to better provide for the child's psychological and development needs.

2. Both of these are best interest considerations in s.60CC of the Family Law Act 1975 (Cth). They are not the only issues and must be placed in the context of all the provisions contained in Part VII of the Act.

3. The objects of Part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.

4. Section 60CA provides that the child’s best interest is the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC.

5. Section 61DA requires the court to apply a presumption that it is in the best interests of the children for parents to have equal shared parental responsibility. The presumption is rebutted if there are reasonable grounds to believe there has been abuse of the child or another child, a member of the family, family violence, or if it is not in the best interests of the child.

6. If the court makes or intends to make an order for equal shared parental responsibility, s.65DAA provides that the court must consider whether equal time with each parent would be in the child's best interests and reasonably practicable, and if equal time is not appropriate, the court must consider whether substantial and significant time would be in the child's best interests and reasonably practical. Considerations for determining what is reasonably practical are in s.65DAA(5).

7. By s.65DAA(3):

   “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;

   (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.”

8. The Full Court of the Family Court said in Starr & Duggan [2009] FMAC 115 at [38] and [39]:

   “38.…a logical approach is to: first make findings concerning the relevant s.60CC factors; then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.

   39.  Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.”

Parental responsibility

1. In her case outline the mother proposes that the parties have equal shared parental responsibility for the child.  In his originating application the father proposes that he have sole responsibility.  The application was filed on 27 April 2012 and included a proposal by the father that the mother should have supervised time only with the child.  The circumstances which gave rise to that proposal no longer apply.  Consent interim orders on 16 October 2012 included an order that the mother and father have equal shared parental responsibility for the child.  The father's case outline did not specify one way or the other and it was not raised by the father.  I conclude that both parties are proposing an order for equal shared parental responsibility.

2. Any circumstances which might have made such an order inappropriate are now in the past.  The parties’ affidavits give details about many incidents at changeover and events which have arisen regarding the child's time with each parent, but the current regime of nine days with one parent and five days with the other is now well established.  The parties have shown that they have sufficient ability to communicate and cooperate and that they will be able to meet the obligations of an order for equal shared parental responsibility.  That is shared decision making for major long term matters, which in this case is likely to be confined to schooling and major medical matters.

3. Section 65DAA requires consideration of the equal time or if not equal time substantial and significant time. Neither party proposes equal time, nor does the Independent Children’s Lawyer or the family report writer. The case was conducted on the basis that there should be one parent with the major responsibility for the care of the child. Apart from best interest considerations, the parties live a considerable distance apart and do not have a relationship which would permit the cooperation and communication that equal time would require. While the authorities suggest that generally best interest considerations should be looked at before the question of reasonable practicability is considered, this is a case where the opposite can be done. Because of the distance the parties live apart and their difficulty in communicating and cooperating it is not reasonably practicable for the child to spend equal time with each parent. When the child commences school, if the parties still live a considerable distance apart, equal time will not be reasonably practicable for this reason alone.

4. The competing proposals of nine days and five days, whichever is adopted, meet the requirements of substantial and significant time, and while the child is not attending school are reasonably practicable.

Background

1. The father was born on (omitted) 1988, is aged 24 and resides in (omitted) near (omitted) in Victoria in a rented two bedroom house  The father’s mother and her partner, his grandmother, his great grandmother, an aunt and an uncle live in the same area. 

2. The mother was born on (omitted) 1990, is aged 23 and resides at (omitted), part of the (omitted) area in Victoria, in a three bedroom house with her partner Mr M.  He works full time with a second job in a (omitted) on Friday night and Saturday.

3. The parties commenced living together in early 2007 and separated on 4 September 2009.  The mother moved to (omitted) for about seven months, during which time the father did not see the child.

4. On 1 March 2010 the Department of Human Services removed the child from the mother's care and issued a Protection Application in the Children’s Court of Victoria.  The Children’s Court of Victoria made an interim accommodation order placing the child in foster care.  The order provided that the mother have access with the child for a minimum of three times per week and that the mother must not allow Mr W to have any contact with the child.  The mother at that time was living with Mr W.  The Department of Human Services’ report showed a number of bruises observed on the child during several visits, two healing rib fractures, apparent rough handling of the child by Mr W and attendance by police at the premises because of arguments between the mother and Mr W.  When protection workers and police arrived on 1 March 2010 the mother informed them that she was leaving Mr W, but it appears that this did not happen at least immediately.

5. As part of its investigations the Department of Human Services had a forensic examination conducted by a paediatrician.  This showed a number of bruises and the broken ribs.  The report says that rib fractures are highly specific for child abuse in the absence of an obvious traumatic cause.  The report says that the combination of the reported unexplained facial bruising and the rib fractures found on bone scan would be indicative of an inflicted injury on the five-month-old boy.

6. The Department of Human Services assessed the father as a suitable carer and on 22 March 2010 the Children’s Court of Victoria made a further interim accommodation order placing the child in the care of the father.  The order had 10 conditions.  One was that the mother have access to the child twice per week for a minimum of six hours at times and places as agreed between all parties.  The Department of Human Services’ officers were to supervise access unless the Department of Human Services assessed the supervision as not necessary.  Another condition was that the mother must not allow Mr W to have any contact with the child.

7. Since 22 March 2010 the child has lived with the father.

8. The father commenced an application in the Federal Magistrates Court of Australia on 16 April 2010.  It concluded with final orders on 1 August 2011 that the child live with the father and spend at least 48 hours each fortnight with the mother supervised by the maternal grandmother.  The orders made included that the mother be restrained from bringing the child into contact with Mr W.

9. Between then and April 2012 the child spent time with the mother but arrangements between the parents were not without difficulty and each accuses the other of occasions of poor care.

10. The father commenced this application on 27 April 2012.  He applied for orders that he have sole parental responsibility and for interim orders that the child spend time with the mother at a supervised contact centre.  On 12 June 2012 I made interim orders that the child spend time with the mother each alternate weekend from 5.00pm Friday to 5.00pm Sunday commencing 15 June 2012 and that time be supervised by the maternal grandmother.  I made an order for the appointment of an Independent Children's Lawyer and for the preparation of a family report and adjourned the application for mention on 16 October 2012.

11. Two family reports were prepared by Ms E.  The first is dated 14 September 2012.  Her recommendation is subject to a caveat that the court is satisfied that the mother can act protectively towards the child.  She also said that it should be dependent upon the mother providing appropriate accommodation, that she cooperate with the appropriate community support services, that the child be enrolled in an appropriate early care program and that she not bring the child into contact with Mr W.  She recommended that the child resume living with the mother and spend time with the father each alternate weekend from Friday afternoon until Sunday at 4.00pm and each alternate week until school commences from Wednesday to Friday.

12. On the 16 October 2012 I fixed the matter for hearing on 8 May 2013 and ordered an updated family report.  The parties agreed on further interim orders.  They provide:

    a)The parties have equal shared parental responsibility for the child;

    b)The child live with the mother commencing 18 October 2012 from 12.00 noon to 22 October 2012 and each alternate week thereafter until 26 December 2012.  Commencing 26 December 2012 from 12.00 noon to 31 December 2012 to 12.00 noon and each alternate week thereafter.;

    c)At all other times the child live with the father;

    d)Changeover is to occur at the (omitted) railway station with only the parties attending in the immediate vicinity;

    e)The father ensure the child attend a pre-kindergarten program on every Tuesday if possible;

    f)The mother is restrained from bringing the child into contact with Mr W.

13. The second family report is dated 11 March 2013, again prepared by Ms E.  In this report she recommends that the child live with the mother nine days per fortnight with the father five days per fortnight with the routine being that the current arrangements are reversed.  She recommends:

    a)Both parents place the child in a minimum of one kindergarten session weekly;

    b)Neither parent, nor the parties engaged in the care of the child denigrate the other party;

    c)The parties use either e-mail or a communication book to communicate information about the child’s needs and experiences only;

    d)The parents share a copy of the child's routine;

    e)The child not be removed from the state of Victoria without the written permission of the other parent and with all travel details itinerary and contacts applied;

    f)The mother continue to engage with Child First and Maternal and Child care;

    g)The father to obtain a mental health plan and to continue to attend regular counselling sessions with appropriate qualified professionals;

    h)The father undergo a Men’s Behaviour Change program and provide a certificate of completion to the court;

    i)Both parents undertake a Parenting Effectiveness Training Course.

14. For a time the father resided with Ms N and they have a child, Y, born in (omitted) 2012.  The father no longer resides with Ms N.  Y lives with his mother and spends minimum time with the father.  He told Ms E that it is one hour per fortnight.

Best interests considerations

1. The application was filed prior to the commencement of the amendments to s.60CC made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.  The best interest considerations which apply to this case are those contained in the section prior to the amendments.

2. The father has had the major part of the care of the child since March 2012.  He has worked hard at making his care successful.  Annexed to his affidavit of 6 May 2013 are letters from a variety of groups and programs which show that he has attended a supported playgroup with the child and taken him to swimming lessons. He has accepted support from a Family Services Case Manager with the (omitted) Regional Health Service, he has attended upon a psychologist and he has sought out and accepted the assistance of the Maternal and Child Health Nurse Service.  The father has enrolled the child at (omitted) Kindergarten.  The kindergarten’s report is very positive.  The father obtained a referral to Dr C, a Consultant Paediatrician.  The Paediatrician reports that the child appears to be following a normal developmental trajectory.

1. Other documents show that the father has a house which is suitably furnished and safe and comfortable as a home for a young child.

2. This material and his own evidence shows that he has worked hard at caring for the child.  He has had considerable assistance from his mother and extended family.

3. The mother now has stable accommodation in (omitted) and cares well for the child during the five nights each fortnight he spends with her.  She has engaged with Family First and the Maternal Health Nursing Service.  She appears to have a stable relationship with Mr M, someone she has known for some time.  To the Family Consultant she described the relationship as normal.  She is studying (omitted) which she expects to complete by the end of 2013.  She said that Mr M has a very positive relationship with the child.  She has ceased the relationship with Mr W although she visited Mr W in prison more than once in 2012.  She has not seen Mr W since he was released from prison.

4. The family reports are long and detailed.  The recommendation of Ms E that the child live predominately with the mother rather than the father in both reports is based largely on two things, the mother being better able than the father to promote the emotional and psychological development of the child and the father’s attitude to the mother which does not promote the child's relationship with the mother.

5. Ms E reviewed the Department of Human Service’s files.  They identified a child protection history for both parents.  Ms E reports that the file show that the mother was sexually abused as a child and the father was kicked by one of his mother's partners and another threatened to kill him.

6. Ms E reports that there is an extensive history of child protection services being involved with the mother, the father and the child.  This includes an alleged history of family violence to the mother by the father, and a reported history of both parents being known as drug uses.

7. The mother obtained a Family Violence Intervention Order and Ms E reports that the Department of Human Services’ file shows this outraged the father's mother and was followed by multiple and various complaints by her to the Department of Human Services about the mother.  The father’s mother demanded she withdraw the intervention order against the father.  There are multiple reports against the mother and allegations of drug use and alcohol use by the father's mother.

8. Ms E’s conclusion in the first report that the father has significant personal issues that at times overwhelm him leaving him with little capacity for effective and child focused care.  She refers to behaviours, described in detail in the report: muscle flexing in interview; his emphasis on his sexual success with women and repeated assertions about his extensive range of female friendships including misconstruing "relationships" with those women whom he met in a professional capacity. Ms E considered that the father lacked clear insight about boundaries and how to conduct himself in a professional capacity.  She said that the father had not developed behaviours that would enable him to engage in constructive adult interpersonal and/or professional relationships.  She said he appears to be dependent on his mother to direct and manage his behavior and his responses.

9. Ms E says in the first report that while the father has always desired to be a good father he remains focused on the image of himself as the hero rescuing his son from the demon mother and he appears to have no capacity to evaluate his actions according to the child's needs.

10. Ms E said that the father had not demonstrated that he was able to support a meaningful relationship between the mother and child.  She says there are consistent self-reported difficulties with changeovers and that he changed spend time arrangements to the detriment of the mother's capacity to spend time with the child. Ms E says that the Department of Human Services’ files are replete with the father and his mother making repeated contacts making assertions about the mother’s behaviour.  Ms E describes as so egregious that their primary focus can only be assumed to be in order to prevent the mother spending time with the child.  The Department of Human Services identified the reports as "malicious".

11. In her second report Ms E says that both parents have made some effort to address issues raised in previous reports.  The mother had established consistent and persistent predictable domestic circumstances and the father within his capacity to do so had cooperated with court orders and consequently the mother spent regular time with the child.  She says that both parents have some limits to their parenting skills but both are making an effort to focus on the child's needs within the capacity to do so.

12. Ms E describes the father as having a need to be seen as "the good parent" appeared to be confabulating events so that he could be represented in a positive light whilst the mother is painted in a negative light.  Ms E says that the father does not appear to comprehend that he is both derogatory towards and denigrating of the mother as a parent and either is unaware of the impact of all of these actions or he is deliberately provocative as these exchanges frequently occur with the child as a witness.  Ms E says that the father's capacity to support the mother/child relationship remains highly questionable.

13. Ms E says that the child has some development delay, for instance with a marginal ability to identify colours.  From the observation of the child, particularly with the father, she concluded that the child has a weak knowledge of appropriate boundaries leading to his behavior.  He became less contained and further disorganised when with his father.  She says the child is minimally responsive to direction, does as he pleases and protests with tantrum screaming more appropriate to a two-year-old.

14. Ms E says that parenting a child like the child in this case requires a parent to be an active participant, to think proactively and to be engaged one to one with the child.  She says that the mother, almost intuitively, offers this in contrast to the passive working alongside non intrusive approach of the father.

15. Ms E says that a consequence of this passivity is that the child has a weak knowledge of appropriate boundaries leading to his behaviour becoming less contained and further disorganized when with his father.  She describes the child as highly responsive to firm, clear directions and she said that he is apparently inherently seeking direction.  An example of this is when the child was wandering around the child care room eating a bread roll.  He picked up a pencil, initially wanted to draw on the wall then started to use the pencil as a weapon jabbing in the direction of another child.  His behaviour was not refocused by his father and he ignored instructions from his father "not to be silly" he continued to jab the pencil and then started jabbing into his bread roll with considerable force.  Ms E says she intervened providing clear directions instructing the child to stop and for the child to place the pencil in the pencil box.  He appeared to be taken by surprise and with an air of defiance placed the pencil in the wrong box.  His father commented "good boy", but the child did not leave the area and his hand kept circling over the incorrectly boxed pencil.  With further instruction he eventually replaced the pencil in the correct location.

16. Ms E describes what occurred when the father wanted him and the mother to be observed together in the childcare room with the child. Ms E said that since the child had arrived with his father and was leaving with his mother this provided an opportunity to observe a changeover sequence.

17. Ms E says that when the father walked into the childcare room and approached the child he looked at his mother smiled and looked at his father and squealed and ran to his father.  His father wrapped his arms around the child. Ms E says this response by the child was unusual and in contrast to his other behaviors when meeting his mother and had the appearance of a game between father and son in which the father did not seek to modify the child's responses.

18. Ms E, after describing what occurred when the child's belongings were packed and sorted, says that the father was clearly resistant to the child leaving him and she says it appears that this difficulty may to some extent be unconscious behaviour from the father, who was down on his knees holding the child tightly to his chest and his face looked sad and distressed.  The father offered no assistance to the mother at changeover and his every action was provocative, Ms E says.  She says he refused to release the child on request nor did he modify the child in appropriate behavior to his mother. Ms E says the situation became tense, the child's behavior was deteriorating and she intervened directing the father to say goodbye to his son and exit the room.  After allowing time for the father's departure the child was more settled and he and his mother left happily together.

19. The two primary best interests considerations in s.60CC are the benefit to the child of a meaningful relationship with each parent and the need to protect the child from harm. The evidence shows that the child does have a meaningful relationship with each parent. Since the mother has ceased her relationship with Mr W and has stable living arrangements there are no issues of potential risk to the child.

20. The child is too young to express any views but otherwise relevant among the other best interests considerations of these matters.

21. As to relationships, the child has a good relationship with each parent but the report of Ms E shows that while the father has had the primary responsibility for the child since March 2010 the mother’s relationship is the more appropriate one for a child of this age.  The father’s emotional dependence on the child as demonstrated at changeover shows that the mother's relationship is better able to promote the child's development and welfare.  The mother gives evidence, which I accept, of prolonged changeovers and the father’s difficulty in leaving the child.  The observation Ms E made corroborates the mother’s evidence.

22. The child has spent considerable time with the paternal grandmother and the father's extended family.  Consequently, the child has a strong relationship with the grandmother and the extended family.

23. The evidence and reports of Ms E makes the consideration of each parent’s willingness to promote the relationship with the other parent important in this case.  The father does not promote the child's relationship with the mother.  The father and the grandmother have made many complaints to the child protection authorities which they have concluded are malicious.  I accept the mother’s evidence that the father is rigid about court orders unless it suits him to change.  I accept that he criticizes the mother and that changeovers are difficult.  Again, the observations made by Ms E corroborate this evidence.  Nothing suggests that the mother attempts to undermine the child's relationship with the father.

24. The father acknowledges that he has said "silly Mummy" to the child although the second report shows a greater understanding by him of the need to be more positive about the mother.  The inference from the reporting by Ms E of her discussions with the father is that he is critical of the mother in the child's presence.

25. The consideration of the effect on the child of the change in living arrangements and separation from the father is relevant in this case. Ms E did not consider the change in living arrangements would impact on the child.  He will continue to see his father and Ms E said that the change will be beneficial because the mother will initiate activities and manage his behaviour.  I find that the change to less time with his father will not adversely affect the child.  It will be beneficial for the reasons Ms E gives.

26. Both parents have shown the ability to care for the child's physical needs.  The father has enrolled the child in kindergarten and takes him to a variety of activities.  Physically the child is well cared for with each parent.  The mother has suitable and stable accommodation.

27. The conclusion I draw from the report evidence of Ms E is that the mother is better able to provide for the child's emotional and psychological development.  Ms E is very clear about this.

28. The child's sex, age and circumstances are obvious considerations and are dealt with in the evidence I have already described.

29. There is evidence of family violence while the parties were together.  Its relevance is as background to the relationship between the parties and their relationship now and in particular the father’s attitude to the mother.

30. The Family Consultant’s recommendation is strong and soundly based.  I accept that the mother is better able to provide for the child's intellectual and emotional needs and there are shortcomings in the father’s capacity to do this.  I accept that the father, while he has improved, has not been promoting the relationship between the child and his mother and that while the father is taking steps to deal with his issues by attending a psychologist his attitude to the mother is likely to continue and so affect the child's relationship with his mother.  I accept that the mother will ensure that the child spends time with the father and, while she does have some shortcomings as pointed out by the Family Consultant, she will promote the father/son relationship.

31. The child's best interests are served by living predominantly with the mother and have time with the father as recommended by the Family Consultant.  That time is five nights each fortnight until the child commences school when, if the parties remain living near (omitted) and (omitted), will have to be reduced to 2 nights per fortnight and holidays.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  18 July 2013