SPERGER and HARRIS

[2018] FCWA 169

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: SPERGER and HARRIS [2018] FCWA 169

CORAM: THACKRAY CJ

HEARD: 16 & 17 APRIL 2018

DELIVERED : 31 AUGUST 2018

FILE NO/S: PTW 2108 of 2016

BETWEEN: MS SPERGER

Applicant

AND

MR HARRIS

Respondent

Catchwords:

CHILDREN - With whom a child spends time - Where the father seeks to gradually increase the time he spends with the child, resulting in equal time when the child turns six -Where the mother proposes a slight increase in the father’s time - Order for equal shared parental responsibility - Held in the child’s best interests for the father to spend increasing time with the child, with equal time commencing at the start of 2021.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Rigby
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Haydn Rigby
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1I am required to resolve issues between the mother and father relating to their son, [John], who was born [in] 2014 and who is therefore now four years of age.

2The parties agree there should be an order for equal shared parental responsibility and they also agree the father should spend regular time with John. The major point of difference is that the mother proposes that she continue to be John’s primary caregiver, whereas the father seeks an increase in his time with John such that John will commence spending equal time with both parents when he turns six in July 2020.

Background

3The mother is aged 36 years. She currently cares for John full‑time, but before he was born she worked in the Perth CBD as [an administrator] for a major corporation. She is also pursuing studies online, having deferred her university degree.

4The father is aged 35 years. He is a qualified [accountant], presently working fulltime in the Perth CBD as a [manager].

5The mother and father commenced cohabiting in 2008 and separated in December 2015 when the mother left the family home. John is the only child of their relationship.

6John was primarily cared for by the mother, both during the relationship and after the separation; however the father was always very actively involved in John’s care, especially during a period of about five months when he was between jobs.

7The parties were living in [Suburb A] at the time they separated. The mother then moved to [Suburb B], but since June 2016 has been living in [Suburb C]. The father originally remained in Suburb A, but in January 2018 moved to a rental home in [Suburb D] in order to be closer to where the mother and John live.

8At the time of trial, the father was spending time with John each weekend from 8 am on Saturday until 1 pm on Sunday and for three hours each Wednesday afternoon. These arrangements had been in place since the parties signed a Minute of Proposed Orders in June 2016. The father thought the mother’s solicitor had arranged for the Minute to be filed in the Family Court but this had not happened. The father also felt under some pressure to sign the Minute because of a statement in a letter from the mother’s then solicitors that if he did not respond to some recent correspondence, “the existing arrangement for you to spend time with [John] may cease” and that the father would then “need to commence Family Court proceedings in order to recommence contact”.

9On 28 April 2017, after making unsuccessful efforts to negotiate changes to the agreed arrangements, the mother commenced proceedings seeking more than five pages of orders. During the negotiations that thereafter continued, the father complained that the mother’s proposals were becoming “even more onerous and complicated”.

10On 7 June 2017, the father filed his response, seeking an arrangement where he would have John on three nights each week for three weeks and one night in the fourth week, with there to be a review when John turns six. In August 2017, the father advised he intended to seek equal time, having previously made it known this was his preferred regime.

11The matter proceeded to trial in April 2018. The father was self‑represented and the mother was represented by her solicitor.

Orders sought by the mother

12The mother proposes that John live with her and spend time with the father every alternate week from 2.30 pm Friday until 8.00 am Monday and in the intervening week from 2.30 pm to 7.00 pm on Wednesday (i.e. three nights a fortnight).

13The mother seeks that handover primarily be conducted by the parties themselves. She also seeks that before a third party permanently moves in or out of a residence where John spends time the parent in that residence must seek the others consent and if they have concerns for John’s safety, he will not be permitted to stay overnight at that residence. Additionally, she proposes the parties wait at least “4-6 months before including a significant other to the child’s life” and that John should at no stage “be exposed to either parent’s paramours”. She also seeks that John attend a primary school within 5 kilometres of her home and attend on a named doctor at a medical surgery near her home. The mother otherwise proposes a long suite of orders which need not be detailed here.

Orders sought by the father

14The father proposes John live with the mother up until he turns six and then spend equal time with both parties, with the orders to be reviewed when John turns seven. Prior to the commencement of the equal time regime, the father proposes his time with John be increased as follows (noting that the trial occurred before John turned four):

•Until John turns four from 6 pm Thursday to 6 pm Sunday every alternate week and from 4.30 pm to 7.30 pm on Thursday in the intervening week;

•Until John turns five, the time spent in the alternate week be extended to conclude at 8 am on Monday, while retaining the time in the intervening week; and

•Until John turns six, moving the time spent to one block period from Thursday 6 pm to Tuesday 8 am.

15The father proposes that the handover be at 6 pm on Thursday when the equal time arrangement commences. He also seeks that handovers can be conducted by anyone known to both parties and John.

16Unlike the more prescriptive orders proposed by the mother, the father seeks only that the parties notify each other if a third party moves into a residence at which John is spending time. He does not seek an order that the parties should wait before including their partners in John’s life. Otherwise, the father also seeks a suite of orders which are not necessary to describe here, save to note that he proposes John attend [Suburb D] Primary School, commencing with kindergarten in February 2019.

Impressions of the parties

17I formed a good impression of both parties as they seemed to be committed parents who wanted to do the best for John. The father presented in Court and in written communications as balanced, considerate and child focused. He very readily acknowledged the mother’s virtues and only politely pointed out the various discrepancies in her evidence. The mother did not present quite as well and was inclined to overstate her case in order to paint the father in a more negative light than I felt was deserved. I am sure that the mother will benefit from the Mums and Dads Forever program which she agreed to attend.

Applicable law

18These proceedings fall to be dealt with under the Family Court Act 1997 (WA) (“the Act”), which makes John’s best interests the paramount consideration.

19In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

20In determining the orders most likely to be in a child’s best interests, the legislation mandates an approach to be followed if there is an order for equal shared parental responsibility. In coming to my decision, I am required to apply a presumption that it is in John’s best interests for his parents to share parental responsibility equally. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence (as defined in the Act). Furthermore, this presumption may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.

21The allocation of parental responsibility does not govern the time John will spend with each parent. However, if I make an order for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time or, failing that, “substantial and significant time” with each parent would be in John’s best interests. If either alternative is in his best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”.

22In determining what orders would be in John’s best interests, I must consider a long list of factors laid down in the Act. These are divided into “primary considerations” and “additional considerations”. This dichotomy has been considered in many judgments of the Full Court of the Family Court of Australia, which have also analysed the significance of Parliament having described just two factors as being “primary” considerations. Those judgments adopt the analysis of former Justice Richard Chisholm, who has written:

It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolutes. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration … Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.

23It is within this legal framework that I must determine this case.

Primary considerations

24I will address the primary considerations first.

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

25It would be of great benefit to John to maintain a meaningful relationship with both parents. They are loving, committed and competent parents, and he needs both of them in his life.

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

26There is no suggestion that John has been or will be exposed to any physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

27Although the mother sought to make an issue at one stage about dangers posed by the paternal grandmother’s dogs, I am satisfied that the father has taken appropriate steps to keep John safe from potential danger.

Additional considerations

(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

28John loves both his parents and greatly enjoys spending time with each of them. Otherwise, as he is just four years old, John’s views have no bearing on the outcome.

(b)the nature of the relationship of the child with –

(i)each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

29The mother has been the parent primarily involved in caring for John but the father played a significant role in his care while the parents were together and has continued to play what role he can since the separation. I am satisfied that John has a close and loving relationship with both parents.

30John also has a close and loving relationship with his maternal grandparents, with his paternal grandmother and with [Max], the former husband of the paternal grandmother. John also enjoys a good relationship with [Eve], the partner of the father’s step-father, and with [Valerie], the father’s sister. Apart from her parents, the mother’s family appears to live in [Austria] and she does not have any relationship with them.

31I consider it unfortunate that the mother has discouraged John from calling Max “granddad” given that the father regards Max as his own father. The father was not adopted by Max, but assumed his surname by deed poll. I also consider it unfortunate that the mother has allowed John to become aware of her dislike of other members of the father’s family.

(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity –

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child

32Pursuant to the 2016 Minute of Consent Orders, both parties were meant to have an equal say in important decision-making. However, the mother has largely excluded the father from decisions relating to John, leading him to consider that she places very little value on his role in John’s life. The mother acknowledged that the father wanted to be involved in significant decisions and complained that “if anything, he is too involved, trying to take over major decisions”. That does not appear to be the case. The father simply wanted to be involved, and the only time I can see that he took a significant matter into his own hands was in response to the mother’s decision to have John see a new doctor.

33Both parents have endeavoured to spend as much time with John and communicate with him as much as is reasonable, given his age. Importantly I accept that the father goes out of his way to facilitate communication between John and the mother during their fairly limited periods of time together.

(da)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

34Both parents have fulfilled their obligations to maintain John. When the father’s child-support was initially assessed at $497 per month, he agreed that this was insufficient and agreed to more than double the payment to $1002 per month.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from –

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

35The likely impact in making the change sought by the father is that he will have greater interaction with John. I consider this will be to his benefit. The converse is that the mother will spend less time with John, but I am satisfied that he will be able to cope with that arrangement. I do not accept the mother’s assertion that “[John] would feel lost without me if he were not living with me all the time”. I nevertheless consider the father has acted appropriately in not pushing for an equal time arrangement too early, since John might have had difficulty in coping if the change had been made too soon.

(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

36Suburb C is one of the more [easterly] suburbs of Perth. The father’s home in Suburb D is partway between the mother’s home in Suburb C and the father’s place of work in the CBD. It takes the father up to an hour to get from home to his office (by train) and it takes about 15 minutes to drive from his home to the mother’s home.

37The close proximity of the homes is conducive to any time sharing and schooling arrangements, but the journey from both homes (and nearby schools) to the CBD is an important factor, especially as the mother may end up working in the city.

38The father deserves credit for his decision to move closer to where the mother and John are now living. This has been a considerable inconvenience to him, as he would prefer to live much closer to work. While I assume that the mother’s accommodation options were quite limited, I can understand why the father felt that he should not move quite as far east as she has, given his need to travel to work each day.

(f)the capacity of –

(i)each of the child’s parents; and

(ii)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

39The mother has a proven capacity to provide for all of John’s needs, and the father speaks very highly of her ability as a parent.

40I am satisfied that the father can also provide for all of John’s needs. He takes exceptionally good care of John during the time he has with him. The father generally works from 8.00 am to 4.30 pm each week day, but I am satisfied he would make good childcare arrangements and would be able to provide for emergencies as a result of the flexibility that he has in his work and as a result of having four adults on whom he can call for help if needed.

41I have not overlooked the mother’s complaints about what she considers to be the father’s inadequacies as a parent. However, I consider she is more inclined to find fault than is warranted. The evidence supports the assessment of the job done by both parents with John which appeared in the father’s affidavit of October 2017:

[John] is a happy child. He is resilient, well behaved, pleasant to be around and in many ways, excels beyond his peers. I think despite our differences and the challenges of separation we have done a fantastic job raising [John].

42I consider the parents have the combination of skills and personal qualities that John will need as he matures and makes his own way in the world.

(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

43Apart from keeping firmly in mind that John is still very young, the only other matter of relevance here is that the mother is of Austrian origin and will expose John to Austrian culture, language and food. I am satisfied that the father would support this. John was given his mother’s family name, which would seem to be of Austrian origin. I am not persuaded that the father has ever attempted to have John use the father’s own surname.

(h)if the child is an Aboriginal child or a Torres Strait Islander child …

44This factor is not relevant.

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

45Absent risk factors, I consider one of the elements of being a good parent is to encourage a child to have a good relationship with the other parent. This is especially important when parents separate.

46The father appears to have a good appreciation of the importance of this aspect of parenthood. He readily acknowledges the mother’s virtues as a parent, as appears from this extract from his October 2017 affidavit:

[She] is a good Mother and I believe it is essential [John] is able to maintain a meaningful relationship with [her]. His life would not be as enriched and fulfilled without her.

47In his closing address, the father referred to that part of his affidavit and said:

And despite the concerning things [she] has done and said, I stand by that statement. The mother and son relationship is a special one. It’s a relationship that I wouldn’t want to take from [John]. I love my mum and I needed her when I was growing up and I still do need her and I think every little boy needs his mum.

48The father keeps photos of John and the mother around his home and spends time with John selecting and making presents and cards for her on special occasions. I accept his evidence that he speaks positively about the mother and her parents to John, and ensures that his friends and family do the same. I also accept that there is a “complete ban” in his home on any negative discussion of the mother while John is present.

49I am not persuaded that the mother has always reciprocated and the evidence does not make clear why she seems not to appreciate the father’s many fine qualities as a parent. I was also concerned by the somewhat imperious tone the mother adopted in some of her communications with the father, given that his were generally a model of civility and respect. I nevertheless accept that there were many examples of appropriate communications between the parents for which they should both be commended.

(j)any family violence involving the child or a member of the child’s family; and

(k) if a family violence order applies, or has applied …

50The mother told a psychologist she engaged for John that the father had been violent toward her, but she declined to make allegations to similar effect in these proceedings, saying “I do not think either of the parties … has any particular concern about this as regards the other party”. I am not satisfied that the father engaged in any behaviour that would constitute family violence.

(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

51At the commencement of the hearing, I was inclined to make orders that would only last for the next couple of years on the basis that the major argument was what was to occur when John turns six. Had this been acceptable to the parties, the matter might have been dealt with on the papers and certainly without a full trial. The father was content with this course, but the mother was not, as she said she wanted to have certainty for the future.

52Having heard all the evidence, I am now satisfied that I should make long-term orders as the mother originally considered was appropriate, albeit not the orders that she seeks. If I do not make such orders now, there would almost inevitably be further proceedings as the father is keen to ensure John’s time is shared equally.

53I do not accept the mother’s proposition that the father would be unable to cope with an order for equal time which would then necessitate further proceedings. On the other hand, I accept the father’s assessment that the extent and nature of the minor orders sought by the mother may result in further conflict and potentially lead to future proceedings. In my view, the less orders that are made the better. The parents should be trusted to make appropriate arrangements for their child without having a booklet of orders about how to do it.

(m)any other fact or circumstance that the court thinks is relevant.

54The mother asserts that the father’s “behaviour is erratic” and believes “he has personality issues and an undiagnosed mental condition”, which she identified as being Asperger’s Syndrome. There is no foundation for this in any of the evidence or from my own observations, albeit the father accepted he does possess the characteristics of an accountant which he suggested the mother had mistaken for Asperger’s Syndrome!

Parental responsibility

55Both parents seek an order for equal shared parental responsibility and I consider that such an order should be made. Whilst there have been difficulties in communication between the parents, I consider that this has mainly been the result of the mother seeking to exclude the father from decision-making. As there will now be an order for equal shared parental responsibility, I expect the order will be obeyed. I expect that the parents will now always consult and make important decisions jointly relating to John. This will be easier once I have dealt with two of the main issues about which they have quarrelled, namely where John should go to school and the medical practice he should attend.

56The father has attended the Mums and Dads Forever Program and derived real benefit from it. The mother declined to attend the program when invited by the father to do so. At the end of the trial, she indicated preparedness to attend and I made an order requiring her to do so. I hope that once she has attended the program she will develop a different style of communication which will facilitate the order for equal shared parental responsibility.

Equal time and substantial and significant time

57Having decided to order equal shared parental responsibility, I must first consider whether an order for equal time is in John’s best interests and reasonably practicable.

58The father considers that John would be ready now for equal time because of the quality of the relationship that exists between them. However, having taken legal advice he decided he did not have a good prospect of obtaining such an order at present and therefore elected to seek equal time when John turns six.

59I accept it is probably not yet in John’s best interests for there to be equal shared care, but I am persuaded it is appropriate to move in stages toward such an arrangement. I consider however that the commencement should be delayed a little to the start of 2021, just before John starts Year 2 (he will begin kindergarten in 2019).

60I have arrived at this conclusion because:

(a)I consider both parents have a great deal to offer John and that spending equal time with each of them will maximise his opportunity to benefit from what each parent has to offer;

(b)The father impressed me as a competent and child focused parent who makes decisions based on his son’s welfare. I am satisfied that greater exposure to him would be in John’s best interest;

(c)The mother did not seem quite as child focused, primarily because she does not have an adequate appreciation of the benefits that would flow to John from spending more time with the father. I share the father’s concern that she might not only not promote John’s relationship with him but might subtly undermine it. The more time the father has with John, the less opportunity there will be for this to occur; and

(d)Spending more time with the father will also result in John having greater opportunities to spend time with his extended family on the father’s side. I consider this would be to his benefit, especially as the mother does not have extended family here.

61I am satisfied that an order for equal time is reasonably practicable given that the parents live in relatively close proximity and the father has the capacity to make arrangements for John’s care when he is at work. The father’s usual hours of work are from 8 am to 4.30 pm, but I accept that he will work less in the week he has John. He will then be able to drop him at day care/before school care at around 7.30 am and collect him around 5 pm. There will also be days when the father can work from home. I also accept that the father is rarely required to travel in the course of his work, and any travel he may have to do will likely be arranged for the weeks he does not have John.

62While the father will be reliant to some extent on day care, and on before and after school care, I do not consider this will be detrimental for John. In fact, it will give an only child greater opportunity to mix with other children. The father’s extended family members are also willing and able to assist the father when required. I recognise they do not live in close proximity to the father’s home, but they are close enough to be of real practical help, and the mother herself would presumably help out if she could in the case of an emergency.

63The mother will likely be similarly placed in needing assistance in caring for John if she has to return to full-time or significant part‑time work, which I consider is likely, especially after John turns eight when her benefits will be reduced. The mother also hopes to undertake further studies which will potentially reduce her availability to care for John.

64I accept that the parties’ original plan was for John to be enrolled in day care after the mother finished maternity leave. Furthermore, on [in] May 2016, the mother’s former solicitor wrote to the father saying, “my client is likely to recommence work in the near future. Should [John] be placed into day care, my client has no issue with you collecting him from the day care centre at a time convenient for you”. Regardless of whether the mother is working full-time, part‑time, or not at all, I consider it is in John’s best interest and reasonably practicable to spend equal time with the father from the start of 2021.

65The father’s home is well located and equipped for all of John’s needs. John has his own room, clothing, toys and all other requirements. The only items he currently brings with him when moving between the homes are the clothes he wears and his teddy. I accept that when he is at school, more items will need to move back and forward between the homes, but the parents are competent and well-organised and I do not anticipate this will cause them or John great difficulty.

66The mother claims that a week-about arrangement would be disruptive for John’s school routine. While I accept there is potential for disruption, this is outweighed in my view by the importance of the father having more significant time with John than he has to date. In making this finding, I have not overlooked the father’s evidence that the current arrangement has generally worked well. He recognises properly that the existing regime suffers from the fact that the mother never gets a weekend with John and he agrees this requires changes to the existing arrangement. The ultimate equal shared care arrangement will ensure weekends are also shared equally.

67Pending the commencement of the equal shared care arrangement, I consider that orders generally along the lines of those proposed by the father are in John’s best interests and will be reasonably practicable. The staging I propose is a little different but I consider that too is in John’s best interests.

Choice of school

68The father wishes John to attend Suburb D Primary School which is in the catchment area for his home, whereas the mother proposes [Suburb E] Primary School which is the closest school to her home. Interestingly though, her orders do not specify Suburb E Primary School but rather a school within five kilometres of her residence.

69While there are arguments in support of both options, I intend to order that John attend Suburb D Primary School for the following reasons:

•Suburb D is closer to the CBD where the father works and where the evidence suggests that the mother is more likely to work than elsewhere when she returns to employment.

•While, for the mother, travelling 15 minutes from her home to the school will be not as convenient as a shorter journey, this is outweighed by the convenience for the father by reducing the journey from work to John’s school and maximising the time John spends with him.

•The father has already made a considerable sacrifice in moving much further east than he would have preferred. It is not unreasonable for the mother to make some sacrifice as well.

•While the mother says that John has friends who attend Suburb E Primary School, he is likely also to make friends in the area of the father’s home, who are more likely to attend Suburb D Primary School.

•Suburb D Primary School is walking distance to the father’s home.

•I had at least an impression from the way she answered a question on the topic that the mother is not quite as committed to remaining in her present home as the father is committed to remaining in Suburb D.

•The father had a clearly articulated plan for John to attend Suburb D High School, whereas the mother’s plans for his secondary education were less clearly articulated. Apart from her hope he might be able to attend a private school, it seemed that the closest high school to her home is in [Suburb F], but the father was not challenged on his claim that her home is not in the catchment area. Things may well change of course by the time John is in high school, and therefore this is not a major factor in my consideration.

Choice of doctor

70When the mother and father were living together, John commenced attending [Medical Centre O] near their then home in Suburb A. The mother later claimed that John had been attending on Dr [M] at [Medical Centre G] since he was a “newborn”, but in fact he was first taken there in September 2015, a few months before the parties’ separation.

71In early 2017, the father wanted to take John to a doctor for advice about his teeth grinding. It suited his convenience to go to a doctor further south than [Suburb G], but the mother was strongly opposed to John being seen by another doctor. She (mistakenly) thought that the “parenting plan” provided for John to attend at Medical Centre G and expressed concern about the lack of continuity in medical records (although she had not arranged for the records to be transferred from Medical Centre O to Medical Centre G).

72There was a considerable chain of correspondence between the parties on this issue with the father offering, in January 2018, to “compromise on a GP convenient to both of us”. This was not acceptable to the mother, but the father took John to see a doctor in Suburb D anyway. The mother then directed the Medical Centre not to transfer John’s records to the doctor in Suburb D.

73In her evidence at trial the mother accepted it was not necessary that John be seen by Dr M, but continued to seek that he be seen by someone at Medical Centre G. The father has no objection to Medical Centre G but does not consider that he should be restricted from taking John to another doctor given the inconvenience of getting him to Suburb G. He suggested in his affidavit that if “[John] can only see one GP, then we should agree on this together”.

74Again, there is merit in both propositions. I consider the mother’s proposal that John be seen where practicable by the same doctor or at least at the same centre would be ideal, but on the other hand I understand the difficulty for the father in travelling as far as Suburb G for medical appointments. While it would have been better for the parents to have agreed on the choice of the new doctor, it was understandable that the mother would consider her views more important given she was looking after John for most of the time.

75As the mother will continue to have John with her for the majority of the time until 2021, I consider John should mainly continue to attend where practicable at Medical Centre G. However, I propose that the parties keep an eye out for a new doctor between now and 2021 and that by the time the equal time arrangement commences, John should be attending on a doctor who practises in a location between their two homes.

Orders

76I consider the orders below will best promote John’s interests. The orders have deliberately been made as “minimalist” as possible as I am not persuaded they need to be as involved as the versions presented to me at trial. I foreshadowed to the parties that I might adopt this view. If they find the orders insufficient for their co‑parenting purposes, they can attend at a Family Relationships Centre and work out a parenting plan dealing with details.

77I have accepted that the handovers can be undertaken by people known to the parties and to John as both parents will make good choices about who undertakes this task if they are unable to do so. Each parent can be relied upon to introduce new partners into John’s life cautiously. Each can be relied upon to ensure he stays at only places that are appropriate.

Parental responsibility

1.The mother, [MS SPERGER], and the father, [MR HARRIS], have equal shared parental responsibility for the child [JOHN] born [in] 2014 (“[John]”).

Time [John] spends with each parent

2.Until 1 January 2021, [John] shall live with the mother and spend time with the father as follows:

a.From the making of these orders until 1 January 2019 in a fortnightly cycle as follows:

i.Week 1:

1.From 6 pm on Thursday until 6 pm on Sunday with the father to collect [John] from the mother’s residence at the start of the visit and the mother to collect [John] at the end of the visit.

ii.Week 2:

1.From 4.30 pm until 7.30 pm on Thursday with the mother to deliver [John] to the father’s residence and the father to return [John] to the mother’s residence.

b.From 1 January 2019 until 1 January 2020:

i.Week 1:

1.From 6 pm on Thursday until the start of kindergarten on Monday or 8 am on Monday if not a kindergarten day with the father to collect [John] from the mother’s residence on the Thursday and if Monday is not a kindergarten day the mother to collect [John] from the father’s residence.

ii.Week 2:

1.From 4.30 pm until 7.30 pm on Thursday with the mother to deliver [John] to the father’s residence and the father to return [John] to the mother’s residence.

c.From 1 January 2020 until 1 January 2021:

i.Week 1:

1.From 6 pm on Thursday until Tuesday at the start of school or 8 am if not a school day with the mother to deliver [John] to the father’s residence and if Tuesday is not a school day the father to return [John] to the mother’s residence.

ii.Week 2:

1.The father has no time with [John] in week 2.

3.From 1 January 2021, [John] shall spend equal time with both parents on a week-about basis with handovers to occur at 6 pm on Thursday, with the parent who has [John] in their care delivering him to the other parent.

Handover

4.Handover can be conducted by anyone known to the father, the mother and [John].

Holidays/ Special Occasions

5.Until further order, each parent be at liberty to take [John] on a holiday once each year for a period of seven days at times to be agreed.

6.On special occasions, [John] spend time with the parties as follows:

a.With the father, to the extent that he is not otherwise spending time with [John] in accordance with these orders, on every Father’s Day commencing at 10 am and concluding at 6 pm;

b.With the mother, to the extent that she is not otherwise spending time with [John] in accordance with these orders, on every Mother’s Day commencing at 10 am and concluding at 6 pm;

c.With the mother, to the extent that she is not otherwise spending time with [John] in accordance with these orders, every Christmas Eve 24 December commencing 9 am and concluding at 9 am Christmas Day 25 December; and

d.With the father, to the extent that he is not otherwise spending time with [John] in accordance with these orders, every Christmas Day 25 December commencing at 9 am and concluding at 9 am Boxing Day 26 December.

Communication

7.The mother and father shall allow [John] to communicate with the other parent by phone, email, video call, Skype or other electronic means at any time he wishes.

School

8.[John] attend [Suburb D] Primary School commencing with kindergarten in February 2019. Both parents shall be at liberty to attend all school events.

Medical

9.Where practicable, and unless otherwise agreed, both parties take [John] to a doctor at [Medical Centre G] until 2021. From 1 January 2021, the parties take [John] to a medical practice to be agreed, located if practicable partway between their respective homes.

Review/ Departure

10.The parties review these orders when [John] turns seven.

11.In the event the parties have disagreements relating to any issues concerning [John], they shall both attend at a Family Relationship Centre to attempt to resolve the issue.

Liberty to apply

12.There be liberty to both parties to apply for further definition of these orders and for further orders about matters that cannot be agreed after attending a Family Relationship Centre.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
ASSOCIATE

31 AUGUST 2018