Smith and Smith

[2013] FMCAfam 9

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH & SMITH [2013] FMCAfam 9

FAMILY LAW – Parents disagree as to equal time or significant and substantial time – six and a half year old child has lived in equal time arrangement for two years – mother seeks to reduce the father’s time and influence in child’s life – both good parents – mother fails to accept the father’s parenting attributes – father provides balance to the mother’s rigid parenting.

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

Mazorski & Albright [2007] FamCA 520
MRR v GR [2010] HCA 4

Applicant: MS SMITH  

Respondent: MR SMITH

File Number: CSC 649 of 2010

Judgment of: Willis FM

Hearing dates: 2 & 5 October 2012

Date of Last Submission: 5 October 2012

Delivered at: Cairns

Delivered on: 15 January 2013

REPRESENTATION

Counsel for the Applicant: Mr Trevino

Solicitors for the Applicant: Lehmann Featherstone Lawyers

Counsel for the Respondent: Self represented

Counsel for the Independent Children’s Lawyer: Ms Wilson

Independent Children’s Lawyer: Mrs Reaston

ORDERS

BY CONSENT IT IS ORDERED:

Parental responsibility

1. That the mother and father have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2006 (“the child”) including but not limited to:

   (a)The child’s education  (both current and future);

   (b)The child’s religious and cultural upbringing;

   (c)The child’s health;

   (d)The child’s name; and

   (e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent. 

2. That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)They shall inform the other parent about the decision to be made;

   (b)They shall consult with each other on terms that they agree;

   (c)They shall make a genuine effort to come to a joint decision; and

   (d)If a joint decision can not be reached, then the parents will engage in mediation offered through Relationships Australia, or another reputable association as agreed to by the parents and the parents accept any recommendation by the said mediator/counsellor. 

3. That notwithstanding Order 1 herein:

   (a)The mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and

   (b)The father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him NOTING that this Order is subject to the restraints referred to elsewhere in these orders and in particular, Order 13 referring to extra curricular activities occurring in the other parent’s time.  

Holidays

1. The child shall spend time with the father and mother at all reasonable times during the school holidays as may be agreed and failing agreement, the child will live with each parent for one half of each gazetted school holiday period with such time to be taken to enable the child to spend the first or second half of each holiday period with each parent alternating from year to year. 

2. For the purpose of Order 4, in the absence of any written agreement between the parents, the following orders apply:

   (a)The first half of all school holidays is deemed to commence at 3:00pm on the last day of school;

   (b)The second half of all school holidays is deemed to conclude at the commencement of school;

   (c)The second half of the December/January school holidays is deemed to commence at 3:00pm on the Thursday, that falls three Thursdays after the last day of the fourth school term of the previous year;

   (d)For all other holidays during the year except the above, the school holidays whichever parent is due to collect the child on the Thursday before the end of school term, shall care for the child for the first half of the holidays; and

   (e)That at the conclusion of each school holiday period, the parent that spends time with the child in the first half of the holidays, shall then have time with the child for the first week of the school term, with the child to return to their care on the Thursday prior to the commencement of school. 

Changeovers

1. All changeovers that occur on school days are to occur to and from the child’s school and any other handovers are to occur at [omitted] Playground [location omitted]. 

2. If either parent is unable to attend the changeover, then they may appoint a member of their family to facilitate the changeover. 

Communication

1. The parents shall communicate about matters concerning the child’s welfare and care arrangements by email (non urgent matters), text messages (urgent matters) and the communication book, which will be exchanged at changeovers and carried in the child’s luggage.  

Telephone communication

1. The parent who does not have the child in their care shall telephone the child on Mondays and Wednesdays between 5:45pm and 6:15pm and the other parent is to facilitate this telephone time.  

2. The parent with whom the child is with, will ensure that the child can speak to the other parent in private and without interruption for up to ten minutes.

3. Should the child express a wish to speak to the other parent, the attending parent shall facilitate a landline telephone call within a reasonable time.

4. During trips and holiday periods, the parent who is travelling with the child shall be responsible for assisting the child to call the other parent on Mondays and Wednesdays between 5:45pm and 6:15pm, or as otherwise agreed. 

Extra-curricular activities

1. Neither parent should enrol the child in any extra curricular activity which requires the child’s attendance during the other parent’s time with the child, without the prior written consent of the other parent. 

Health and medical

1. Each of the parents will do all acts and things to ensure that the child shall attend [omitted] Medical Service for any routine childhood illness save and except when the child needs to attend a doctor and that surgery is not available.

2. The attending parent shall write a note in the communication book advising of the symptoms and the outcome.  If the doctor upon whom the child attended is prepared to provide a copy of the consultation notes stating the symptoms, diagnosis, recommendations and follow up required, then the attending parent can attach the notes in the communication book.

Specialist appointments and recommendations

1. Each party is to notify the other no less than seven days prior to attending any specialist appointment for the child, as referred by the child’s general practitioner.  Each parent is at liberty to attend such appointment and obtain such information from the specialist, subject always to the discretion of the specialist.

2. Each party is to be involved in decision making and consultation with any specialist or health professional regarding any major health issues for the child.  If recommendations are made by the specialist, each parent is to consider the recommendation of that specialist and use their best endeavours to comply with the recommendation. 

IT IS ORDERED THAT:

1. In the event that either of the parties does not accept the recommendation or diagnosis referred to in the previous order, then both parties are to attend on a second specialist together for another opinion and share the cost equally.  In the event that the parents can still not reach a joint decision, then they are to jointly attend upon the original specialist and engage in genuine discussions in order to determine whether or not having seen the second opinion, the original specialist is prepared to modify or alter his or her diagnosis or recommendations.  If the parties remain in disagreement, they are to attend upon a Dispute Resolution Counsellor at the Family Relationships Centre, or other dispute resolution service or qualified mediator, and each are to act genuinely and engage in an attempt to resolve the issue. 

BY CONSENT IT IS ORDERED:

Parent unavailable to care for child

1. In the event that either parent is not able to care for the child pursuant to these orders for a period of longer than 48 hours, they shall use their best endeavours to provide the other parent seven days notice (or as soon as that parent has notice of their intended absence) of their unavailability to spend time with the child and offer them the first opportunity to care for the child, subject to the terms of Order 20 herein.

2. The child is permitted to spend time with either the paternal or maternal grandparents for up to 48 hours.  After this time, if the parent requiring assistance is still absent, that parent is to do all acts and things to ensure that the other parent is given the option to have the child returned to their care pursuant to the terms of Order 19 herein, whilst the absent parent remains unable to care for the child.  The parent who is organising for the child to spend the proposed 48 hours with the child’s grandparent/s is to advise the other parent as soon as possible of these arrangements.  

Travel

1. If the child is removed from the Cairns area for a period of more than four (4) nights, the travelling parent is to provide to the other parent a full itinerary of both travel and accommodation plans and all contact details at least seven days prior to the date of travel. 

Overseas Travel

1. The mother and father be permitted to travel with the child overseas on the following terms and conditions:

   (a)The travelling parent will have regard to any warnings issued by the Department of Foreign Affairs and Trade in relation to the country intended for travel to and factor such warnings into the proposed travel plans;

   (b)The parent proposing to travel shall provide the other parent with as much notice as possible, and no less than one month’s notice in writing of any intended overseas travel and a proposed itinerary showing where the child will be staying and telephone contact numbers whilst away;

   (c)As much time as possible of the proposed holiday shall be taken during the school holiday period;

   (d)Both parents shall provide written authorisation to the Registrar of the Federal Magistrates Court authorising the release of the child’s passport for such travel within 14 days of the travelling parent providing the documentation and information set out in clauses 22 (a), (b) and (c) herein. 

   (e)Upon the child’s return, the travelling parent will do all acts and things to ensure that the child’s passport is deposited with the Registrar of the Federal Magistrates Court of Australia in Cairns for safekeeping within 14 days of the return. 

Passport

1. The mother and father shall forthwith deliver any current passport for the child, to the Registrar of the Federal Magistrates Court of Australia in Cairns and thereafter to be held by the Registrar, pending the joint written direction of the parties or order of this Court as to its release. 

2. At any time the child’s passport is due for renewal, each party will execute a passport application when requested to do so and each will do all acts and things necessary to direct and authorise the Australian Passport Office/Department of Foreign Affairs and Trade to issue a passport to the child within 30 days of receipt of the renewal notice.    

3. In the event that either party fails to do all acts and things necessary to enable a passport to issue for the child, the Australian Passport Office and/or Department of Foreign Affairs and Trade is authorised to issue a passport for the child, notwithstanding that the other party has not given his/her consent to the issue of a passport or failed to sign the relevant documents.

4. That each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of this order and in the event that either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Magistrates Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.

Schooling

1. Unless agreed otherwise the child shall continue to attend [F] School for the purpose of her primary schooling. 

2. Neither parent shall prevent the child attending school for more than two days in any school term for such purposes as taking the child on trips, unless agreed to by both parents.  This order does not apply when the child misses school due to illness. 

3. Both parents may attend the school activities and events that parents are invited to, subject always to the discretion of the school authorities.   

Other issues

1. During the time the child is with either parent, that parent shall:

   (a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

   (b)Speak of the other parent respectfully;

   (c)Not discuss the Court proceedings, Court orders or any aspects of the Court proceedings with the child or in the presence, or hearing of the child; and

   (d)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child. 

2. In the event there are any future disputes about parenting issues, the parents are to jointly attend upon a Dispute Resolution Counsellor at the Family Relationships Centre or other dispute resolution service or mediator, and each are to genuinely engage in an attempt to resolve the issue. 

IT IS ORDERED THAT:

Living arrangements

1. That the child shall live with each parent on an equal time basis for one week at a time, with handover occurring on Thursday after school.  This arrangement is to be suspended during the school holiday periods and the provisions of Order 4 herein apply during the school holiday periods.

Special events

1. For the purpose of the Memorial of Christ’s Death, the mother shall have the child in her care in 2013 and each odd numbered year thereafter, and the father shall have the child is his care for 2014 and each even numbered year thereafter, from 3:00pm to 9:00pm or as may be agreed, NOTING that the commemoration does not occur at the same time each year and falls on Nisan 14, according to the Jewish lunar calendar.  It is at the discretion of each party as to whether the child attends the Memorial in the year the child is to spend time with that parent.   

2. At the time of the annual convention of Jehovah’s Witnesses (“the convention”) the child spend time with the mother (from 8:00 am on the day prior to commencement, until 6:00pm the day after it concludes to allow for travel) in 2013 and each odd numbered year thereafter, and with the father in 2014 and each even numbered year thereafter (from 8:00am on the day prior to commencement, until 6:00pm the day after it concludes to allow for travel).  It is at the discretion of each party as to whether the child attends the convention in the year the child is to spend time with that parent.   

Schooling

1. The child will attend a high school in the Cairns region NOTING THAT each parent is restrained from taking any steps to:

   (a)Making any overt or covert actions to influence the child as to that parent’s preference for high schooling, directly or indirectly with the child;

   (b)Make tentative bookings for the child to enrol in any high school without the prior written consent of the other parent;

   (c)Having preliminary discussions with the child indicating that parent’s choice or making suggestions without the prior written consent of the other parent.

Counselling

1. Each party is to do all acts and things forthwith to make the necessary arrangements to attend counselling jointly in the presence of a qualified counsellor at Relationships Australia or other recognised agency, with a view to resolving their outstanding issues relating to their marriage breakdown. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CAIRNS

CSC649 of 2010

MS SMITH

Applicant

And

MR SMITH

Respondent

And

INDEPENDENT CHILDREN'S LAWYER

REASONS FOR JUDGMENT

1. This matter commenced in December 2010 when each of the parties agreed to orders that they share parental responsibility and that the child of their relationship live on a week about basis with each of the parties.  The mother in this matter, Ms Smith, was assisted by a duty lawyer on that day and the father, Mr Smith, was also represented by a lawyer.  There is one child of this relationship, [X], born [in] 2006, six years and five months old at the time of trial.

2. At the commencement of the trial the mother altered her position to seek an order on a final basis largely in accordance with the orders sought by the father.  However, there still remained several issues about which the parties could not agree.  The mother has shifted her position from seeking an order for sole parental responsibility to agreeing that an order should be made for equal shared parental responsibility.  The mother and father have each provided draft proposals of the orders sought and they have been marked as exhibits.  The Independent Children’s Lawyer in this matter has also provided proposed orders sought in a document handed up during final submissions.

3. The father in this matter seeks to retain the order for week on/week off which has operated for almost two years from December 2010 until October 2012.  The mother seeks orders that the child live with her and spend time with the father five days each fortnight. At the commencement of the trial the parties were also apart in terms of other orders sought that related to who is to care for the child in the event the father is away working, along with the issue of how long the child is to remain living with a non-parent (typically a grandparent) before the child is returned to the other parent whilst the first parent is absent.  At the conclusion of the trial the father had altered his position on those issues and the parents were agreed. 

4. The mother was born and raised as a Jehovah’s Witness whereas the father has practised the Jehovah’s Witnesses faith for 12 years.  One of the issues about which the parties are unable to agree is to do with the observation of the memorial of Christ’s death which is a significant day in the Jehovah’s Witnesses calendar.  The mother seeks an order essentially that the child spend time with her on that day and that, unless the father is taking the child to that religious observation, she be permitted to take the child in the alternate year as well as her own year.

5. Another religious observation occurs at the annual convention of Jehovah’s Witnesses and again, the mother seeks an order that the child spend time with her, in one year, to enable her to attend the convention and spend that time at the convention with the father in the alternate year.  However, if the father is not intending to attend the convention the mother seeks an order that she be permitted to take the child to the convention in the father’s year as well.  That issue remains in dispute. 

6. Initially, the father sought orders restricting the attendance of the mother and the maternal grandmother at the child’s school to do voluntary work in [X]’s classroom during the father’s week.  During the course of the trial the father altered his position and no longer sought such a restraint.

7. At the commencement of the trial the mother sought an order that the child attend a high school in the Cairns region as agreed between the parties and, failing agreement, as chosen by her.  At the conclusion of the trial her position in relation to that had moved somewhat after indications from the Court that the child is only six and high school was many years away, and it would be difficult to predict who should be making a decision about that, particularly given that there is an agreed position as to equal shared parental responsibility.  By the conclusion of the trial the mother agreed that an order should be made simply that the child will attend a high school in the Cairns region.  The mother agreed that it was too early to seek an order about the schooling and did not press for an order that she be the person to decide upon the schooling.  This is an issue about which each parent will have equal input into a joint decision to be made at the relevant time. 

1. The mother sought an order that the child spend time with the father each fortnight from after school Wednesday in the first week to before school Monday, (or Tuesday if it was a public holiday on Monday) a block of five nights a fortnight.  The parties have each been changing the time they sought for telephone orders.  Ultimately, by the conclusion of the trial the parties agreed that the telephone calls should occur at 6.30pm, twice a week.  The parties had disagreement about extra curricular activities at the commencement of the trial.  However, the parents agreed with an order to the effect that neither party is to enrol the child in any extra curricular activity occurring in the other parent’s time without the prior written agreement of the other parent.

2. There is some minor disagreement about the nature of the orders sought by the mother in relation to what is to occur if either parent takes the child to a doctor.  The mother seeks an order that:

   The attending parent shall obtain a copy of the consultation notes stating the symptoms, diagnosis, recommendations and follow-up required and attach them to the next page in the parent’s communication book.

3. The father does not seek such an order and simply asks that it be noted in the communication book that the child has attended at the doctor, stating the symptoms, the doctor’s diagnosis and the doctor’s recommendations. 

4. Each party seeks an Order that they each do all acts and things to sign whatever documents are required for a passport to issue for the child and that a passport issue notwithstanding one or other of the parents have not signed the application.  Each party seeks an order that the passport remain with the Registrar of the Court and I intend to make that Order. 

5. The parties have also agreed to orders in relation to the child’s living arrangements when either the mother or father is away during a period longer than 48 hours when the child would otherwise be in their care.  The father whilst initially opposing such an Order reconsidered the arrangement and agreed that the child should be returned to the other parent after 48 hours. 

6. The mother sought an order that should the child be in the care of a parent during cyclones and other natural disasters that the parent with the child in their care evacuate the Cairns area with the child when evacuation is recommended by the authorities.  The mother’s order continued:

   If the father refuses to evacuate then he shall deliver up the child to the mother at [address omitted] or such other places that the parties may agree to.

   The father is opposed to this order.

7. The mother also seeks an order that the child may travel with a parent within Australia at short notice to be with a close relative during medical emergency (such as a dying great-grandparent) and may remain for up to two weeks to attend a funeral or memorial service with the child.

8. Whilst the father does not quarrel with the child being able to attend on or around the death of a dying close relative the father is opposed to reference to “a dying great-grandparent” on the basis that the child does not know her maternal great-grandparents who live in Western Australia and further he says it is not necessary for the child to be away for two weeks in such circumstances.

9. The mother also seeks an order that the child is permitted to spend time with either set of grandparents for up to 48 hours when the resident parent is not able to care for the child and after 48 hours the child is to be returned to the other parent’s care.  The father agrees with this order.

10. Each of the parties agrees that the other party can travel overseas.  Initially though, the mother sought an order that the mother and father be permitted to travel to Hague Convention countries on set terms as set out in her proposed order 34(a) through to (g).

11. The father wishes to take the child to the Caribbean Islands and ultimately to Cuba. The mother initially disagreed with these proposals.  However, at the conclusion of the trial her position was to be that she was prepared for the child to travel with the father overseas but only to countries that it was safe for the child to do so and that guidance should be taken from the Department of Foreign Affairs and Trade (DFAT) warnings at any given time.

12. It can be seen from the matters referred to that one of the most significant issues about which the parties are in disagreement is the division of the child’s time between the household of the mother and father during school terms.  Holidays are agreed. 

Witnesses

The Mother

1. The mother gave evidence and was cross-examined.  The mother presented herself in a very measured and controlled fashion.  I have no doubt the mother is an extremely conscientious parent.  The mother has recently taken on the full time care of two foster children, one aged three and one aged under 12 months.  She says her own mother, whom she admires, also did this when the mother was growing up. In addition to taking on this full time role of fostering, the mother works at [omitted] on Tuesdays and Wednesdays, from 6.30am to 3.30pm and at times when [X] is with her, her parents stay at her home to take care of [X] when she has to go to work.

2. The mother is also in the process of completing a [omitted] course, which finishes at the end of 2012.  The mother also goes to TAFE once a fortnight and studies at home when she can.  The mother met the husband at age 32 and that was her first and only relationship.

3. The mother is completely au fait with every aspect of [X]’s care and, in my view, micro-manages many of [X]’s arrangements.  The mother has an almost hyper-vigilance about [X]’s arrangements.  This can be seen in the mother’s exhausting emails to the father and her entries in the communication book.[1]  She has produced schedules in relation to medications.  Her expectations for the father’s parenting skills would seem to be almost unachievable.  In saying that, I acknowledge that the father has on occasion shown some lack of understanding of the limitations of young [X].

   [1] Exhibits M1 and ICL2. 

4. Certainly when the matter first started [X] was being taken to work with the father and, according to the mother, wandering into the [workplace omitted] of the father at times, though this is largely contested by the father. His position at the time was that his mother also worked in the business and when he was working [X] was effectively under the supervision of his own mother. The father has in any event changed his work arrangements and has set up an office at home.

5. The mother is, it seems to me, driven and single minded in her own approach to parenting. She is often uncompromising when compromising is called for.  Whilst the mother has a very pleasant demeanour and a quick laugh, I observed a significant change when the father, who is self-represented, commenced asking the mother questions.  The mother’s position hardened and she appeared to show a simmering impatience towards the father.  At times I considered her to be quite dismissive of his efforts at parenting.  The mother has a somewhat controlling personality and whilst she is a most conscientious mother, my impression is that she has failed to appreciate the father’s efforts at parenting and his work commitments.  The mother has a blind spot in regard to all of the ongoing and regular assistance that she receives from her own parents whilst criticising the father for receiving help with [X] from his mother.  The mother described her attitude to her own counsellor as “a black and white person.”[2]  I agree with this assessment. 

   [2] Exhibit ICL1, page 12. 

6. I had the overall impression that the mother told the truth for most of the time.  However, there were times I considered the mother was quite selective about what she told the Court.  Generally I was satisfied that she was not as candid a witness as the father.  She is a very loving, caring and devoted mother.  I am quite satisfied she possesses the skills necessary to foster the young children she has taken into her care and that the children are fortunate indeed to have such a dedicated foster mother.    

7. My impression of observing the mother in the witness box is not that she is meek and mild as she has suggested to her counsellors or that she has an inability to “voice control over situations with ex-partner.” [3] The mother’s response to the father’s questioning showed what I regard as anger towards the father, not fear.  I note the mother’s reference in her foster carer application that she did not grieve the absence of the father in her life, she felt a sense of relief and that she knew the separation was the first step to taking back her power.[4]   

   [3] Exhibit ICL 1, page 9. 

   [4] Exhibit ICL 1, page 64. 

The Father

1. The father gave evidence and was cross‑examined over two separate days, with two or three days in between.  On the first day the father was a very confident man, with a relatively loud voice.  He was an honest witness, extremely articulate and I considered him to be a very intelligent and thoughtful individual.  It seemed to me the father has felt deeply about the separation and his opportunity to remain involved in [X]’s parenting.

2. The father spoke very strongly about his firmly held views that [X] ought to be able to spend a week with him, during which time [X] should not have any interference or exposure to the mother or the mother’s family.  It seemed to me that the father resented the mother’s intrusion into aspects of [X]’s life during his week, finding herself work experience as a [omitted] at [X]’s school and also obtaining accommodation right across the road from [X]’s school.

3. He also resented the mother’s own mother (the maternal grandmother) insinuating her way into [X]’s classroom and finding a reason to be able to volunteer in [X]’s classroom on a regular basis including during his week.  The father seemed entirely frustrated by the constant presence of the mother and her mother at school and struggled to draw a line of demarcation between [X]’s time with the father and [X]’s time with the mother.  The father considered that the mother was constantly undermining his time with [X].

4. On the second day of trial the father appeared a little more mellow in the witness box and said he had had time to reflect and take note of the questions asked and that on reflection he could see the benefit to [X] in having her mother and her grandmother reading in the classroom regularly.  The father conceded to the ICL in cross‑examination that he had been holding things fairly tight.  I had a strong impression that the father has been using every endeavour to try and accommodate what he perceived as the mother’s ongoing interventions and directives issued regarding how parenting was to occur in his time. 

5. The father in my view has shown considerable tolerance and patience in his dealings with the mother’s constant directives and implied or overt criticism of his parenting and he is to be forgiven for the occasional sarcastic comment on what has been the exacting standard set by the mother.  The father at times showed signs of exhaustion of the process involved in dealing with the mother.  The father admitted to the ICL that he had been affected by the separation and the ongoing disputes, that he has been seeing a counsellor and has been depressed.

6. The father had also had time to reflect on his Jehovah’s Witnesses faith and that, whilst not moving away from it, he had softened in his approach.  He made strong representations that he wanted [X] to be able to make choices about her religion.  The mother does not show any flexibility in regard to the practices of her religion at this point while she was so young.  The father has volunteered at school to take [X] through Jehovah’s Witnesses religious education at a time when the students are doing their own religious observation lessons.  The father has followed the Jehovah’s Witnesses faith for 12 years and stated that the mother has been raised in that faith and understandably holds firmly to her views. 

7. The father and mother each deeply love [X].  I sensed in the father a great sadness and almost fear that he was not going to be permitted to have the opportunity to be included in [X]’s life to the extent that he would wish. The father was an impressive witness and made admissions against his own interest when it was appropriate to do so.  He showed significant insight into the past difficulties between him and the mother.  Wherever his testimony was contradicted by the mother’s, in the absence of any independent evidence, I preferred the evidence of the father.  I am satisfied he is a loving and capable parent who has much to offer [X] both now and in the future. 

The Paternal Grandmother

1. The paternal grandmother gave evidence at the trial that she sought to remain out of the conflict and is a significant support to her son, in his efforts to be a single father and continue with his work.  The paternal grandmother is a devoted and caring grandmother who has, in my view, been in a difficult position at times in this dispute.  The father’s decision to try and remove himself from ongoing conflict by having a fairly strict division of time between himself and the mother, resulted in the father telling the mother she was not to correspond or communicate with his own mother.  This has resulted in some difficulties for the mother in this matter at times when the father has gone away on holidays or gone away working and left his own mother in charge.  In my view it was imperative for the paternal grandmother to be able to have a direct dialogue with the mother on certain matters.  The father has acknowledged that this is so. 

The Family Report writer – Dr R 

1. A significant delay occurred in the progress of this litigation due to the unfortunate serious illness of the appointed family report writer.  That involved about 12 months delay all up.  The family report writer, Dr R, prepared a report under cover of an affidavit filed on 16 May 2012.  The interviews were conducted in or around March 2012 and Dr R administered personality inventory tests as part of her assessment. Dr R gave evidence at the trial. 

2. Dr R’s recommendation is that the child continue to live in a week-on/ week-off arrangement.  This is primarily because the parties have been parenting under such an arrangement for two years.  Dr R also stated that [X] had a strong, close relationship with both parents.  Observations were made that each of the parents have different parenting styles and operate differently as adults.

3. The mother is described in the family report as being very focused in an organised and consistent manner and the father was described as more laid-back.  At the time of the interviews the report writer stated that the father had disengaged with the Court processes. 

4. The report writer recommended that each of the parties moderate their own behaviours in order to resolve their conflict and that [X] continue to spend half time with each parent.  That recommendation was subject to a caveat that it would be appropriate for [X] to remain in the mother’s care when the father was away working for extended periods of time.  Dr R was however apprehensive about reducing the amount of time that [X] spent with the father.

5. Dr R noted that it was important for the mother and father to be the primary carers of [X] and that grandparents who assist each of the parties ought not be elevated to primary carers.  Dr R noted that each of the grandparents had significant relationships with [X] and that her dominant relationship should be with the mother or the father.

6. Dr R agreed that at the time the parties implemented the initial week-on/ week-off arrangement when [X] was three years old that it may have been premature to move to a fifty-fifty arrangement and that often in such a circumstance she might recommend that the child spend three or four days with the other parent.  However, Dr R was keen to point out that this depended on the child, the levels of communication and collaborative parenting and the way the child is attached to each of the parents.

7. Whilste Dr R did not include in her report a reference to the child’s views and stated that she did not interview [X], Dr R did make observations of [X] with each of her parents.  Although [X] is only six and a half and would have been about six earlier that year, it is generally of some assistance to the Court to have a child at this age spoken to if only to record their age-appropriate discussion and views in relation to other matters.

8. Mr Trevino, Counsel for the mother, submitted that it is a shortcoming of the Family Report for the report writer not to have interviewed the child.  That may be so, however, I also consider that the child is still of fairly tender years, that her views are certainly not definitive and they would, in any event, receive only limited weight. 

9. Dr R noted that the parties have totally different ways of engaging with life generally.  The mother was noted in the PAI report as being, at times, meek and unassertive and having difficulty standing up for herself but also being passive aggressive and, at times, becoming over-controlling.

10. The parents were noted as being fundamentally incompatible.  The father responds to conflict when confronted by backing away until he gets really angry, almost passive aggressive, up to the point where he digs his heels in.  Generally, I agree with the observations of Dr R in regard to the manner in which the parents conduct themselves.

The Law

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).

2. In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”.  Her Honour stated:

   “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).’ 

3. Section 61DA refers to a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse or family violence.  The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. When I determine the best interests of [X], will consider the additional considerations set out in s.60CC(3). I will consider and evaluate each of the parties proposals for care of [X] including the significance of the primary considerations in s.60CC (2) according to the legislative pathway.  Reference will be made to parental responsibility and s.65DAA(5) and the issue of reasonable practicability s.65DAA (5) and the issues referred to in subsection (a) through to (e) in arriving at the ultimate conclusion.

5. Each party requests an order for equal shared parental responsibility.  If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.

1. Amendments were made to the Family Law Act 1975 incorporating the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. Those provisions which have been amended in regard to Family Violence apply to matters filed on or after the commencement date of 8 June 2012.  This matter was commenced in May 2010 in the Federal Magistrates Court of Australia and therefore the new provisions in Schedule 1 do not apply.

2. I have had regard to the documents relied on behalf of each party, their oral evidence, their respective case outlines, the exhibits and the closing submissions made on behalf of each party.

3. In these reasons, statements of fact constitute findings unless indicated otherwise.

Section 60CC Considerations

1. I now turn to discuss the additional considerations which are relevant to the competing applications sought by each of the parties.  I will also discuss the primary considerations.

S.60CC(3) The additional considerations are:

S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. I do not have any independent evidence of the views of the child, as the report writer chose not to formally interview the child. The mother reports that the child says she does not like living in three houses as set out in her material. The mother whilst being a charming and committed mother who holds strong views about her own parenting and the way parenting ought to be. I am somewhat wary of accepting the mother’s statement that the child does not like living in three houses. This is actually the mother’s own position. I note this is inconsistent with the father’s evidence, which I accept. He says that from time to time, perhaps once a week, the child asks if she could go for a sleepover to her grandmother’s next door, as her cousins are living there and have been for some time. I note also the evidence of the maternal grandmother, which I accept, that the child is very comfortable in either house.

2. The notion of a child saying they do not like living in three houses and echoing her mother’s concerns does have a somewhat adult ring to it.  As I have already indicated, the views of the child in this matter about her ongoing living arrangements would, in any event, be tempered by the fact of her young age. 

S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. I am satisfied that [X] is a much loved child, who has been observed to have good and strong attachments to both parents.  I am also satisfied that the child has good and loving relationships with each of her grandparents, albeit I have not had the opportunity of seeing the maternal grandmother.

2. I have already noted that I consider each of these parties to be fine parents and each of them to have the desire to do all that they can in raising, supporting, nurturing and loving young [X].

3. The father and mother each have strong support from their parents and in my view, it is entirely in [X]’s best interests that she have the benefit of being cared for by her extended family including each of her grandparents. 

S.60CC(3)(c) 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

1. Each parent has demonstrated an ability to facilitate a close and loving relationship with the other parent.  The mother is inclined to look for problems surrounding [X]’s time with the father, which are generally of minor significance.  The father has a broader view of the child’s time with each parent, he has an ability to put minor issues which trouble the mother into perspective.  I am satisfied that the father is willing to encourage a close and continuing relationship between the mother and child, and that he has done so in the face of ongoing criticisms, directions and reprimands from the mother, without passing his frustration onto the child.  The mother seems less willing to freely encourage a relationship between [X] and the father as she seems to focus on what she perceives are his inadequacies, without acknowledging his strengths as a father. 

S.60CC(3)(d) The likely effect of any changes 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 any grandparent or other relative of the child), with whom he or she has been living

1. The child has been living in a week on/ week off arrangement for some two years, and prior to that also, the child had been living in a week on/ week off arrangement post-separation.  I note that the mother says that this was imposed on her by the father, and to some extent this is borne out in the father’s evidence that he proposed a week on/week off arrangement at separation. 

2. There has been some criticism of the father of his somewhat overbearing attitude during the marriage, and I note reference to the bible scriptures and the father saying that effectively, he is the head of the family.  This of course, was entirely in line with each of the parties’ then beliefs.  The father gave evidence that up until the parties were divorced, he was still considered to be the husband and the head of the household.  There was no evidence that satisfied me that the father was a controlling adult. 

3. I consider that the mother and father had an incompatible relationship with conflict.  The mother’s own counsellor made reference to the mother’s struggle with her sense of helplessness and power as seen as in the following observation:

   “I feel that a major component to the sense of helplessness and power of inequality for Ms Smith is the belief system that underpins the Jehova (sic) religion.”[5]

   [5] Exhibit ICL 1, page 10. 

4. Each of the parties have suffered disappointment at the failure of their hopes and aspirations of a life together and have been left trying to co-parent.  I consider that the mother has a tendency to be somewhat dismissive of the father’s role and passively aggressive as suggested in the PAI testing.  This is seen in a variety of ways, including her steadfast determination to have her directions regarding parenting techniques followed strictly and also her tactics in moving to the catchment area of the school she wanted [X] to attend and organising training for her [omitted] work at that school. 

5. Having had an equal shared time order in place since separation, it is a significant change to reduce the child’s time with the father from the regular seven days on/ seven days off to nine days with the mother and five days with the father.  The Family Report writer did not support a reduction in the time between [X] and the father and expressed concern about the possible consequences for the child.  I accept that there was a time of a few months when the father was completing a contract and has been away working, however, this was a one off occurrence and in any event, the father made appropriate arrangements to continue to spend as much time as he could with [X] for the duration of the contract. 

6. It is the mother’s position that the child should be spending more time with her because she says the father is away a lot, because the child does not like living in three homes, and the child should spend more time with her.  The fact of the child spending time with the father’s mother (when the father was away) has been addressed in the orders, which are now agreed to, that if the father goes away for any longer than 48 hours, the child should be returned to the mother, and likewise, if the mother organises for care for the child for any longer than 48 hours, the child is to be returned to the father.  Orders by consent will be made to this effect.

7. I accept the view of the Family Report writer that simply because the father is away or has been, in the past, away from time to time at work is not a basis to reduce the time that he does have with the child. If the Court adopted the mother’s logic then similarly the one or two nights a week during the mother’s time with the child when she is at work and her parents do the caring of [X], the mother ought not to have those times each week with [X]. I do not accept that either of those arguments is valid.

8. I have no evidence that the child is not enjoying spending time with the father.  Even if I accept the mother’s evidence that the child, like the mother, said she did not like living in three different houses, that is not to say that she does not like living with her father.  The Family Report writer’s evidence is that the child has a strong relationship with each of the mother and father.  I consider the father has much to offer young [X] as does the mother. 

9. In terms of the mother’s proposal of a 9/5 arrangement, that would see [X] spending nine days in her mother’s household in a row and reduce her time with her father.  I am concerned about the consequences of this reduction in time with the father.  I also consider that there is some force in the argument of the father that the mother has taken it upon herself to start fostering two other children on a full-time basis for at least two years.  Caring for three children on a full-time basis as compared to looking after one is a significant difference.  The mother is combining that with her own study and work and witnessing commitments.

10. The father is somewhat concerned about the effect on [X] of introducing two or more young children (one a baby) into the mother’s household and in [X] having to share the mother’s time three ways.  I consider that the father’s contemplations are valid.  The mother’s obligations to her two foster children represents a significant change in the household of the mother and [X].  The fostered children are very young.  Cutting back [X]’s time with the father also represents significant changes ahead for [X].  It is difficult to find any basis for [X] having her time with her much loved father reduced.  I have no doubt that [X] who has been the centre of her mother’s focus and parenting will undergo adjustments within the mother’s household with the introduction of two new foster siblings, despite the mother playing down or openly acknowledging such likely significant changes. 

11. The father has taken [X] on exciting holidays intended to broaden her outlook on life.  The father has an interest in other cultures and travel.  He is outgoing and deep thinking.  I have no doubt his influence will enrich [X]’s life. 

S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The parties live close to each other in Cairns and there are no real difficulties experienced in travelling from one parent’s home to the other. 

S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. I am satisfied that the mother has the capacity to appropriately parent [X] on a day to day basis.  I have reservations though in regard to the mother being so committed to her own style of parenting imposing her own standards and directions on the father, along with the firmness of her religious views and the restrictions which follow.  I consider therefore that it is very important that [X] have very regular exposure to a different lifestyle and broader views of the world as can be offered by the father. 

2. Notwithstanding that the mother is a most loving and caring mother, another significant reservation I hold in terms of the mother’s capacity to parent is the mother’s tendency to approach ordinary childhood ailments and illnesses such as ear aches, coughs, colds, head lice and constipation in a controlling fashion. This involves the mother controlling the information regarding the medical response required including the dispensing of medications and other remedies.  Implied in the mother’s conduct seems to be an assumption that she is the superior parent.  One example of the mother’s control in this manner is seen in the communication book in March 2011 wherein the mother has prepared something of a spreadsheet divided into “breaky, lunch and dinner,” types of medication to be administered which include ear drops and cold relief medication, the relevant quantities, a schedule listing out the days of the week and dates, boxes which require signing off on each individual session to confirm that either 3 drops of the ear drops or 4 ml of the cold relief medication has been administered, description of each medication and whether or not the bottle is to be shaken or refrigerated.  Also included are directions about the medication permission form to be at the school office by a certain date and directions that the syrup and ear drops are to be delivered to the school office each morning together with advice and directions as to what medications the school will administer and confirming the doctor has weighed [X] to prescribe the dosage and that dosage is not to be given according to the packaging and the ear drops being for the ear in question, the left ear.  Not unexpectedly, the father has noted that medications were “All complete as per responsible adult.  No form ever required in this book.  Thanks [Mr Smith].”[6]

   [6] Exhibit M1, page 8. 

3. Whilst I appreciate that the mother is extremely thorough I consider the father to be an intelligent man and a committed father who is quite capable of understanding how to administer medications which [X] requires without the necessity for the mother’s stipulations, schedules and requirement for signatures. 

4. The mother also has a tendency to make quite a production of very simple concepts or proposals relating to [X]. The father gave evidence of once wanting to take [X] to the basketball. This resulted in the mother ringing and involving her own mother in the issue and some five hours of discussion and debate on the issue. Other similar scenarios or situations have been canvassed in similar detail, as seen in the mother’s emails in relation to what would be otherwise fairly mundane matters. The father has found this practise of the mother’s exhausting and attempted to curtail what he regards as her unnecessary fuss and drama about normal day to day matters. The mother’s entries in the communication book are evidence of this tendency, her email of 19 April 2010[7] in which the mother’s micro-management of handovers can be seen. This is an aspect of the mother’s parenting that troubles me.

   [7] Exhibit M1, page 44. 

5. The mother does not show sufficient insight into the possibility that the father is as good a parent as she is and the mother shows very little, if any insight into the quality and positive attributes of the father’s parenting and the love and comfort and broad experiences that he brings to [X]’s life. 

6. As to the father’s capacity, in my view the father has been parenting the child generally in a very appropriate fashion.  He is well supported by his own mother, as is the mother well supported by her parents.  The most significant difference between the support the parties each get from their parents seems to be that the mother’s parents move in to her home and stay there while she goes to work, one or two days as is required a week, whereas the father has moved next door to his own mother and the child has been spending time, if necessary at her grandmother’s home.  I do not however see any difficulty with the child going next door and spending time with her grandmother or being cared for by her.  It is in some ways an idyllic existence to have extended family so close, so that [X] can benefit from her loving extended paternal family.

7. I consider the father’s parenting skills and attitudes towards parenting and life enhance [X]’s childhood and complement and balance the mother’s somewhat obsessive attention to detail and her rigidity in parenting matters.  As [X] grows up in the years ahead, I am satisfied that it will be essential for [X]’s overall wellbeing, her development and her opportunity to achieve her full potential in life, for her father play an equal role in her upbringing.  

S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

1. Each of these parents practices the Jehovah’s Witnesses Religion.  The mother has been raised as a child in this faith, whilst the father joined the Jehovah’s Witnesses about 12 years ago.  My impression of each of the mother and father is that the mother is quite staunch in her beliefs.  This is seen also as a concern of the Department as recorded in their comments made in their foster carer application[8].  Whilst the father has not moved away from his faith, he has a more objective approach about [X]’s involvement and he made strong representations that he wished for [X] to be able to make choices about her religion.  In saying this, the father himself is still committed to his religion and there is evidence that he has volunteered at school to assist in giving [X] Jehovah’s Witnesses religious education during the times when other students are doing their own religious observation lessons. 

   [8] Exhibit ICL1, page 56 onwards.

2. One of the issues in this matter that the parents are not able to agree to is that the mother seeks an order that each and every year [X] go to the Jehovah’s Witnesses convention which is conducted over approximately 5 days.  The mother seeks an order that she take [X] in one year and in the following year, if the father is not going to take [X] that she be permitted to do so.  A similar order is sought in relation to another special day (the Memorial of Christ’s Death) in the Jehovah’s Witnesses calendar.    

3. The father seeks an order that in his year, he be permitted to decide whether or not he and [X] will attend either event.  The father wishes to have the choice to decide that [X] will or will not attend as each year unfolds in the future.  In my view the father has a very balanced attitude toward the religious upbringing of [X].  I accept the force of his submission that in each alternate year it should be his decision as to whether or not [X] attends the convention.  Allowing the father to make this decision each alternate year is in my view enabling [X] to be exposed to the thinking and attitudes of each of her parents which will assist her to ultimately make her own decisions about such matters in the fullness of time. 

S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right

1. Not applicable. 

S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I am satisfied that each of these parties has an appropriate attitude to the child and that they are each in their own right very responsible and loving parents. 

2. The mother has been at times quite critical of the father and his attitude toward parenting.  I note the child fell off a stool once whilst at work with the father and that an order was sought that the father not take the child into the [workplace].  I do not consider that the father ought to be judged as a parent based on a single incident of a child falling off a stool anymore than I would judge the mother on her parenting ability by a single incident whilst the child remained in her care.  This incident though, is an accident that the mother has clung to in her continued criticisms of the father’s parenting. 

1. The mother says that [X] continues to report that when she is with the father she is sometimes near the [equipment omitted].  I did not have sufficient evidence before me to be satisfied that the child was, as suggested by the mother, wandering around the [workplace] unsupervised.  I note the father’s evidence that he has removed the office from the [workplace] and set up an office at his home and that has been primarily to ensure that he can work away from the [workplace] for the child’s safety and has the support of his mother from time to time in doing that.

2. The father, during the time that the parties were together, as I understand the position, was the primary income earner.  To that extent he had less experience solo parenting a young child than the mother.  Time has moved on since the parties were together and in the years since separation the child has been living with the father and mother on a week on week off basis.  Notwithstanding that for a period of a few months the father worked away in a [workplace omitted] for 10 or so days at a time, I consider at the time of trial that the father is well in tune with the requirements and obligations of responsible parenting. 

3. I consider each of the parties are doing their best to be single parents and to raise the child in a separated environment.  I am not critical of the support that they have received from either of their parents and I consider that they are fortunate, indeed, to have grandparents who are available to offer their support.

4. I have reservations about the possibility of the mother being somewhat smothering of the child at times and adopting the position of a superior parent.  I am not sure that she realises how close she monitors and keeps every aspect of the child’s care under strict surveillance.

5. The father has a slightly different and more relaxed parenting style than the mother and I consider that this is an advantage for [X], given what I perceive to be the mother’s inflexibility and rigidity.  I am quite satisfied that [X] ought to have the opportunity to be exposed to each of her parent’s lifestyle and parenting and that it is entirely in her best interests to do so.

6. Under cross-examination the mother stated that she wished to reduce the father’s time and that this would benefit the child because, “the father has difficulty taking time away from work and other pursuits and she has spent a lot of time with his mother.”  The mother continued, “I would like him to have time put aside regularly that he can put aside for her.”  The mother also stated, “I will get her to extra curricular activities that he won’t agree to, she will get sleep that she doesn’t get at his house, she gets to school on time and her homework gets done.”  The mother stated that she did not see any adverse effect that would be suffered by [X] if her time with her father was reduced. 

7. I am not satisfied that the assertions of the mother are supported by the facts.  As to the suggestion that the mother would like the father to put aside regular time just for [X], I note that when the father proposed that [X] go on holidays with him to the Kimberleys for what appeared to be a wonderful experience, the mother would not agree for the child to remain an additional two days with the father.  No complaint is made by the mother of the father’s care or that the holiday was not child focused.  The mother’s rhetoric that the father does not make time for the child is simply false. 

8. Criticism that the father has difficulty taking time away from work to spend with [X] is not a valid criticism.  The father had a work contract engagement for a [omitted] company for a period of a few months.  Whilst the mother criticises the father for working away, she also suggests as she did to the report writer that the father is trying to avoid his Child Support obligations.  There is no evidence that the father has attempted to avoid his child support obligations.  If the father’s work necessitates him being away on an occasion, I do not regard that as evidence of him being pre-occupied with work or being a less loving and attentive father. 

9. As to the mother’s assertion that she will get the child to extra curricular activities that the father won’t agree to, I consider that this is more about the mother’s desire to control the day to day arrangements of the child.  The evidence shows that the mother alone has made arrangements for the child in the past to attend extra curricular activities.  The father has simply asked the mother to consider discussing the matter with him first and that sometimes the child could engage in activities closer to where the father lives for a change.  The parties are now agreed that there is to be an order in place that provides for neither parent to enrol the child in an activity which would require the other parent to take the child in that other parent’s time, without the prior written agreement of that other parent.  In the circumstances, I consider this to be a most appropriate order. 

10. As to the mother’s suggestion that the child should spend more time with her because she gets the child to school on time, the facts do not support the mother’s assertions and even if they did, there are far greater matters of importance in [X]’s long term best interests in this matter.  The mother whilst accusing the father of being late delivering [X] to prep, overlooks the fact that there were days when she opted not to even take [X] to prep school at all.  Whilst I was not overly troubled by the number of missed prep days, this is another example of the mother’s blind side when it comes to her own conduct and her criticisms of the father’s parenting.  These days were, contrary to the assertions of the mother in her outline, not all the fault of the father; they were shared almost equally between them.  It was the mother who was not as vigilant with [X] going to school during her pre-school years, not the father.  I accept her evidence that the teacher indicated that at pre-school they were more relaxed about attendance, but that at school it is taken a lot more seriously.

11. I note that historically there are complaints made to the Department of Child Safety about matters which have troubled the mother regarding the father’s parenting, and that none of these complaints have met the threshold required for statutory intervention.  The mother’s assertions regarding the father’s parenting illustrate to me that consciously or unconsciously the mother believes that she is a superior parent.  Whilst I accept that the mother is an excellent parent, I also consider that the father is an excellent parent and the mother’s failure to acknowledge this is a matter of concern for the Court. 

12. The mother has also alleged in her interview with the Family Report Writer that; “the father is manipulative and has set up rifts between her and his family, he influences his family and others, his intelligence is scary” and also that the mother believes that the father is attempting to “control her through [X] and it is detrimental to [X] the way he does that.”[9]  I am not satisfied that the father has been attempting to control or manipulate the mother.  I have the impression however that the mother is trying to control the father through her parenting and treating the father with a lack of respect in regard to his parenting abilities and capacities. 

    [9] Family Report filed 16 May 2012, paragraph 5.8, page 8.

13. The mother’s conduct at times has been quite strategic such as relocating to the catchment area of the [F] school (in fact right across the road from the school) at a time when the mother and the father had different views about which school [X] was to attend and were still deciding the issue, [F] School being the mother’s choice.  

14. Whilst the mother criticises the paternal grandmother assisting the father in the care of [X] which she has been doing since separation, she overlooks or fails to genuinely acknowledge that she too receives significant assistance from her own parents with the care of [X].  The mother told the Department in her foster carer application and in her evidence at trial that her parents assist her with the care of [X] whilst she is at work one or two days at least each week.  Her mother is enrolled as a volunteer worker at [X]’s school.  The mother’s parents often stay in the spare room of the mother’s home to assist her in the care of [X] and now with the care of [X] and two foster children.    

15. I also consider that the mother has downplayed her decision to become a foster parent and take into her home on a full-time basis two very young children.  Whilst I accept that there are benefits for [X] in being what the mother refers to as part of a larger family, the mother has been less than forthcoming about any of the potential challenges for [X] in having two additional young children sharing her home and her mother.  When the father asked the mother about the likely consequences for [X] the mother’s response was dismissive.  The mother stated, “Yes, I am a foster carer.  I cannot speak to you about the children in care.  I can assure you they are not a risk to [X]’s health or wellbeing.  They do enrich her and allow her to experience the benefits of a larger family.”[10]

    [10] Exhibit ICL 2.

16. I consider that each of the parties have the appropriate attitude towards the education of their child.  Each of them has been actively involved in the child’s school life doing volunteer work and ensuring that they keep in touch with the child’s progress from time to time.

S.60CC(3)(j) Any family violence involving the child or a member of the child’s family; and

S.60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person

1. There are incidents of family violence in this matter which are of relatively minor significance and which occurred on both sides.  The incidents of family violence amounted to the parties arguing in bed, with the father pulling the mother off the bed by her feet on one occasion.  On another occasion following a lengthy ongoing argument, the father alleged that the mother punched him repeatedly in the chest and bit him.  The mother denied punching the father repeatedly but said that she pushed him in the chest and bit him and that she was trying to stop him leaving the room and the argument that they were locked into.  There was another occasion during a dispute at handover where there was some pushing of a gate.  The father says he pushed the mother out of the way or laid her down on a couch to get her out of the way on another occasion to attempt to remove himself from the argument.   

2. The incidents that have occurred between the parties are in my view representative of their frustrations of each other and their incompatibility as a couple.  The father stated that he decided on a complete separation earlier in their relationship, however he put off their separation whilst waiting for the appropriate time to do so.  The father said that when [X] was four the mother was still breastfeeding and by that stage he had waited for a long time to separate. 

3. These parties seem to be otherwise fine, upstanding citizens and it is with some regret, I am sure, that each of them look at their time together and what resulted from their unhappiness together as their short lived relationship dissolved.  I note in the counselling records that the mother has attended upon counselling after separation[11] and has been referred to the regional domestic violence service for support and advocacy as the mother at that stage did not feel she would be able to have a voice in the mediation.  The mother’s then social worker noted that the mother’s dialogue appeared to suggest that the father was bordering on the “verbal domestic violence spectrum” because the father had told the mother that she has “a mental problem”.  The mother did not it seems, inform her social worker that she had been violent towards the father, as admitted in this Court under cross examination. 

   [11] Exhibit ICL 1 – Section B, material from Queensland Health.

4. I am satisfied that incidents of domestic violence have occurred on each side.  In terms of the accuracy of their respective versions of events, I prefer the father’s version of events.  I found the mother’s evidence was less than candid.  She chose her words very carefully and tried to say as little as possible and minimised her involvement and actions.  I found the father’s version of events completely plausible.  He was able to give his versions of arguments in a completely unrehearsed, spontaneous manner, and he was prepared to make many admissions against his own interest.

5. There are no family violence orders.  I accept the father’s evidence that he has attempted to change his communication style so as to develop a business like relationship with the mother.  The father said that he was very stressed over the ongoing Court matters and that he has in the past suffered anxiety and stress and has received counselling and medication to deal with this.  The father stated that he had hoped the post orders parenting program would assist the parties to deal in a business like fashion and be more compromising with each other but that it had not happened to the degree that the program hoped and he would like to do some counselling with the mother.  I consider that it is a useful exercise for these parties to have counselling together in the presence of an experienced counsellor to assist each of them to resolve outstanding matters to do with the breakdown of their relationship. 

S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It is clear that each of the parties have not unsurprisingly found the litigation in relation to [X] and their difficulties post separation very stressful.  I do not consider that overall either parties proposal for the division of time between one household than the other is more or less likely to lead to further proceedings. 

2. The mother is seeking an order about either party taking the child away from Cairns for a period of up to two weeks in the event of the death of a close relative.  In the event such a relative is ill, removing the child for a period of two weeks from Cairns and the other parent is also a significant departure from the regular arrangements sought by either party.  If such an occasion arose where a relative was ill, it may be that the parent wishing to travel could do so in their half share or any of the holiday periods.  I consider the order as sought by the mother is too generalised and I note the father’s assertion that if the mother is referring to her grandparents in Western Australia that [X] has at aged 6, not met with those grandparents for at least 5 years and would not therefore know them. 

3. I do not intend to make the Order sought by the mother however I would encourage each of the parties to communicate with the other parent about any such requests and that the request be considered by the other parent in light of all of the facts and circumstances relevant at the time.  I would also suggest that if the child is taken away from Cairns for a week or more for such purpose, that appropriate arrangements be put in place for the other parent to have make-up time forthwith upon the child’s return and regular telephone or electronic communication whilst the child is away. 

S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant

1. I have nothing to add under this heading.

60CC(2) The primary considerations are:

The benefit to the child of having a meaningful relationship with both of the child’s parents; and

1. I am satisfied that [X] is a much loved child and that she has a strong and close relationship with each of her parents.  It is in [X]’s best interests to have a meaningful relationship with each of her parents in the future. 

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

1. I have already referred to the history of family violence in this matter and it is not a significant factor in the determination of the parenting arrangements for [X].  I am satisfied that [X] is not exposed to or subjected to abuse, neglect or family violence whilst living with one or other of her parents. 

Equal shared parental responsibility

1. The Independent Children’s Lawyer in this matter made submissions that the parties had had a degree of conflict post separation, however these were largely trivial issues and this was no reason to rebut the presumption of equal shared parental responsibility on the basis that they had insufficient communication to effectively make long-term decisions together.  I accept this submission. 

2. The mother, as I said, altered her position at the commencement of the trial to reflect that she also sought an order for equal shared parental responsibility. 

3. I consider that it would not be in [X]’s best interests to have an order that provides for only the mother to make long term decisions.  I have reservations about the mother alone making decisions for [X] as she appears to be rather closed and rigid in her approach to parenting.  The father is a man who presented as being interested in many aspects of life, who spoke enthusiastically and intelligently about his plans in the long-term for [X], including offering exciting experiences and interesting travel opportunities.  The father has stated, and I accept, that he can offer [X] experiences to broaden her horizons over and above any such experiences offered by the mother.  The mother holds the child, in my view, on a very tight rein and is intensely involved in ensuring that [X] remains under her primary influence.

4. I consider it is in [X]’s best interests that long-term decision-making in relation to significant issues of religion, health and education be made with each of the parents having input into the decision. 

5. On the issue of religion, in my view, it is particularly important for [X] to have the balance provided by the father, who is more open in his religious beliefs and practices than the mother is. 

6. Even if the presumption is rebutted with the incidents of domestic violence, it occurred on both sides and in looking at the child’s best interests, I am satisfied that it is very important for [X] to have the benefit of both parents being included in the decision-making, in relation to her long-term issues.  I am satisfied that the order that the parties have agreed to is the order in [X]’s best interests.  Each of the parties now seeks an order for equal shared parental responsibility and I intend to make this order.   

Equal time or significant and substantial time

1. Having made an order for equal shared parental responsibility, I am required to consider, pursuant to section 60DAA(1), whether the child spending equal time with each of the parents would be in the child’s best interests and whether an equal time arrangement is reasonably practicable and if each of those matters are answered in the affirmative, only then am I able to make an order for equal time. 

2. I need to make a similar consideration in relation to substantial and significant time as set out in section 65DAA(2).  In determining whether it is reasonably practicable for the child to have either an equal time or substantial and significant time arrangement, I need to consider the matters in section 65DAA(5). 

3. The mother’s proposal would amount to significant and substantial time being five days a fortnight, which include both school and non‑school days and holiday time.  The father’s orders amount to an equal time order.

4. I have had regard to the matters in section 60CC(2), (3) and (4) and the provisions of section 65DAA (5).  I consider that although the parties are not able to live together as a couple and in that sense they are incompatible, I accept the force of the submission of the ICL that matters that have caused friction in the parties co-parenting have been minor day to day matters.  Most of the difficulty has occurred in my view, because the mother lacks insight as to how critical she has been of the father’s parenting coupled with the mother’s apparent desire to control the parenting.  The mother’s propensity to create significant fuss about day to day issues is not in my view an issue which will prevent sufficient communication between the parties to enable them to facilitate an equal time arrangement.  The father has shown an ability to tolerate the mother’s tendencies in what I regard as very trying circumstances.  It is to be hoped that when this litigation ends and final orders are in place which include an order for equal decision making in relation to long term matters and an order that each of the parties makes their own day to day decisions relating to [X]’s care, that the mother will realise there is no strategic advantage in the future for continuing with her attempts to control the father’s method of parenting.

1. The mother is conservative in her outlook and has a tendency to micro-manage aspects of the child’s parenting. Whilst she is a caring and loving mother, I consider it is very important for [X] to be also exposed to the kind of life that her father leads.  The father is supported by his own extended family, including his mother whom I have had the opportunity to observe in the witness box. I found her to be an impressive witness.

2. The communication book demonstrates the mother’s propensity to focus on a myriad of minor details to do with the day to day care of the child and her expectations of the father to parent in precisely the same manner as the mother.  I do not consider that the mother’s tendency to focus on minor matters and be critical of the father as being evidence of poor communication. 

3. The father in my view has shown considerable tolerance and patience in using his best endeavours to appease all of the mother’s ongoing concerns about the child, particularly medical matters about which the mother seems to have a pre-occupation with considering possible allergies or what she believes to be the causes of symptoms.  For example, the mother considers that the child’s living arrangements and spending time with father have some connection with the child having stomach cramps and constipation.  The notes provided from the doctors as seen in the communication book suggests the child’s chronic constipation is more to do with her diet and recommendations are made for the child to drink more water.  I do not consider that the mother’s tendencies to over dramatise or analyse [X]’s medical issues or behaviour ought to be a barrier to the child spending equal time with each party.  I am satisfied that these parties do have the capacity to navigate and facilitate a week-on/ week-off arrangement.  I do not consider that reducing the child’s time with the father as suggested by the mother will improve the mother’s view of the father’s parenting.  I am satisfied that the father is a competent parent with much to offer [X] both now and in the future.  It is to be hoped that the mother will come to appreciate more genuinely the father’s parental attributes and the benefits for [X] to spend time with her father as well as the mother.  The parties both live geographically close enough to facilitate an equal time arrangement. 

4. I consider that as there are school days involved on both proposals, that issues such as musical instruments being left behind or medications being handed over are still going to arise and will occur in a five/nine or a seven/seven arrangement.  As I have said, my overarching concern in this matter is to ensure that the child receives the benefit of being exposed to and spending time with the father on an equal footing with the mother so as to enable [X] to receive the benefit of each of the parties’ best attributes as parents. 

5. Having considered all of the relevant matters referred to in these reasons, I am satisfied that it is in [X]’s best interests to spend equal time with each parent and that such an arrangement is reasonably practicable. I consider as [X] matures, that the mother’s parenting style could be very stifling and I would not be surprised that [X] will ultimately start to react to the vigilant parenting of the mother. I consider that will enable [X] to reach her full potential in life.  It is to be hoped that as this litigation concludes, the parents’ past disappointments in the failure of their marriage and relationship can be resolved and with this in mind I intend to order as requested by the father, that the parties attend counselling with a joint counsellor in an endeavour to resolve their outstanding issues about their failed relationship.  It is the Court’s hope that once the parties engage in this process that each party can enjoy the remainder of their parenting years which lay ahead with their much loved daughter. 

6. Turning to the other issues in contest between the parties, I will deal with each issue in turn. 

Evacuation from Cairns

1. I do not intend to make an order that the father has to comply with an evacuation invitation, as was issued during Cyclone Yasi. 

2. Such matters, in my view, are very much a decision of the parent who has the child in their care at the time.  Some parents would choose to get in their car and drive away, as it seems the mother might have, and other parents may choose not to do so and would prefer to remain in their homes.  There are risks either way and it is for each parent to assess those risks at the time based on the information to hand.  I do not accept that the father refused to evacuate Cairns when ordered to do so as there was no order for the population of Cairns to evacuate during Cyclone Yasi, as suggested by the mother. 

3. I accept that each of the parents are law-abiding citizens and if there was an order to evacuate Cairns I have no doubt that the father and mother would comply with such an order.

Jehovah’s Witnesses Convention and Christ’s Death Day

1. In terms of the special days it is, in my view, important that the child have an opportunity to share days that are of significance or importance to each parent with each parent as is provided for in the Act.  I am satisfied that it is important for this child’s balanced future to have an opportunity to attend the religious special days or conventions with the mother and also in the alternate year, to spend those days with the father however he chooses to spend that time.  I do not accept that every year of this child’s life she is to be ordered to attend the celebrations of Christ’s death and the Jehovah’s Witnesses convention as suggested by the mother.  I am satisfied that an order should be made that it is at the father’s discretion in the alternate year as to whether the child attends these religious activities as it is at the mother’s discretion as to whether or not the child attends in her year. 

2. I accept the force of the father’s submission that he wants to raise the child so she understands that there is an alternate way of practising religion or that she has the choice as she gets older to attend these meetings.  I accept the father’s position that if he and the child choose to attend they will do so but if they choose not to do so, that should be at the discretion of the father each alternate year. 

Schooling

1. In relation to the orders for schooling, the parties have agreed that the child will attend high school in Cairns and the mother has withdrawn her request for an order that she be the one who is to decide which high school [X] will finally attend. 

2. I am satisfied that when the parties were in dispute about which primary school [X] would attend that the mother undermined the joint decision which ought to have been made by both parents by choosing to relocate and live opposite the school that she wanted [X] to attend and involving herself in employment with that school. I am not satisfied that these actions of the mother were just coincidence.  They were in my view quite strategic and intended to achieve the outcome that she desired, which she did.  I intend therefore to issue an order restraining either parent from taking any steps to make tentative bookings for the child in relation to her high schooling or having discussions with the child indicating that parent’s choice or making suggestions to the child or taking any overt action to influence the child about the choice of high school, without first having the written agreement of the other parent to do so.  It is the expectation of this Court that the mother in particular will comply with the spirit and intent of this order. 

Doctor’s Visits

1. The parties have submitted orders which have a slight variation in relation to the procedure should the child be required to attend a specialist.  This was not an issue about which any significant evidence was adduced at the trial.  The mother sought an order that if a professional provided a recommendation that both parents would support the recommendation.  This order fits with the mother’s past practices.  The father sought a more comprehensive order setting out a procedure involving the opportunity to obtain a second opinion with a process involving the parties taking a second opinion back to the original professional to verify that an ailment is in fact acceptable and if so, that the recommendation be supported by both parents. 

2. The ICL has drafted a variation on the theme providing for both parents to attend on a second professional and sharing the cost equally in the event that both parents do not accept the initial recommendation.  It is apparent in the evidence that the mother has been very active in contemplating and exploring possibilities of illnesses or allergies of the child or difficulties such as glasses or requirements such as counselling. I note the mother’s desire to have the child attend counselling following separation, despite the recommendation of the counsellor that the child was too young.  The counselling took place, however it seems from the records that the counsellor advised the mother in November 2010 following three sessions, that the child was being resistant to being involved with the counsellor, that it was better to wait for [X] to ask to see the counsellor as [X] seemed to not want to come to the sessions.   The mother was told that [X] was “ok, that she had good support and was not suffering from any trauma or was acting out.”[12]  The order for equal shared parental responsibility requires that long term health issues are to be agreed upon by the parties.  It is not up to either one of the parties to enrol the child in counselling or take the child to a specialist without the other party having an equal opportunity to be engaged in either the counselling, discussions and/or decisions with that specialist. 

   [12] Exhibit ICL1, page 19. 

3. I am satisfied that in the past the mother has obtained referrals and recommendations such as counselling and the child’s glasses without first notifying the father that this was her intention.  It seems to me that it is necessary to have an order to make it clear between the parties that it is not up to either one of the parties to individually obtain recommendations for specialist or similar treatment and present it to the other party as a fait accompli.  I therefore intend to include orders to ensure that there are notification provisions for any specialist appointments and that both parties be permitted to attend such appointments and obtain information from the specialist, subject always to the discretion of the specialist.  If there is still disagreement as to the proposed course I consider that each of the parents should together attend upon a second professional and share the cost equally as recommended by the ICL.  I consider there is merit in the father’s suggestion that if there is still disagreement the parties return to the original specialist in order to determine if his/her recommendation remains the same or is modified, having been shown the second opinion.  In the event there is still disagreement the parties will have to attend dispute resolution. 

Overseas Travel

1. The father wishes at some time in the future to travel to Jamaica along with other overseas travel with [X].  The father has close friends who have had experiences which he wishes to share with [X] as to how people in a different part of the world live and how different culture, architecture, dancing and art has evolved in that part of the world.

2. Similarly, the father has friends in Cuba who he wishes to take the child to visit.  Whilst there are inherent dangers in the level of crime in Cuba, I was satisfied that the father is a responsible parent with a valid reason to travel to Cuba, including extending his own and [X]’s life experiences.  The mother’s position at the conclusion of trial appeared to be that she sought an order that wherever either party intended to travel that they be mindful of the warning of DFAT.

3. The mother initially sought Orders that each of the parties be permitted to travel overseas with the child to Hague Convention countries subject to certain conditions contained in paragraph 34 of the mother’s draft.  The father agreed to overseas travel but wished to add other countries such as Cuba and the Caribbean Islands. 

4. At the conclusion of the trial the mother appeared to support a position wherein each party be permitted to travel overseas with the child but when doing so they would take into account any safety warnings regarding travel to that country by DFAT. 

5. I intend to make that Order as I am satisfied that each of the parents show sufficient parental responsibility to make an appropriate decision having regard to overseas travel warnings at the relevant time. 

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Willis FM.

Associate: 

Date:  15 January 2013