TABBERT & ACTON

[2020] FCCA 752

FEDERAL CIRCUIT COURT OF AUSTRALIA

TABBERT & ACTON [2020] FCCA 752

Catchwords:
FAMILY LAW – Parenting – live with and spend time arrangements – equal time arrangement in the best interests of the child – time of changeovers.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA.

Cases cited:

Hall & Hall (1979) FLC  ¶90-713

Jones v Dunkel (1959) 101 CLR 298

Applicant: MS TABBERT

Respondent: MR ACTON

File Number: HBC 854 of 2018

Judgment of: Judge Baker

Hearing dates: 28, 29 and 30 January 2020

Date of Last Submission: 30 January 2020

Delivered at: Hobart

Delivered on: 16 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Ayliffe SC

Solicitors for the Applicant: Ogilvie Jennings

Counsel for the Respondent: Mr Foster

Solicitors for the Respondent: Murdoch Clarke

ORDERS

1. Ms Tabbert (“the Mother”) and Mr Acton (“the Father”) will have equal shared parental responsibility for X born in 2016 (“X”).

2. X will live with the Mother and the Father as follows:

   (a)With the Mother:

   (i)In week 1 from Tuesday between 5:15pm and 5:30pm (or the end of X’s school day) until Thursday at 5:00pm (or the end of X’s school day); and

   (ii)In week 2 from Tuesday between 5:15pm and 5:30pm (or the end of X’s school day) until Sunday at 5:30pm.

   (b)With the Father:

   (i)In week 1 from Thursday at 5:00pm (or the end of X’s school day) until Tuesday between 5:15pm and 5:30pm (or the end of X’s school day); and

   (ii)In week 2 from Sunday at 5:30pm until Tuesday at between 5:15pm and 5:30pm (or the end of X’s school day).

3. X will spend such further and additional time as agreed by the parties from time to time.

4. On the following occasions X’s time with the Father is suspended to allow X to spend time with the Mother on the following special occasions:

   (a)For the Mother’s Birthday if X is living with the Father for a period of four (4) hours as agreed between the parties and failing agreement, commencing at 3:00pm.

   (b)For Mother’s Day from 3:00pm on the eve of the day until the return to school on Monday or for years X is not at school and on non-school days 9:00am Monday.

   (c)For X’s Birthday in:

   (i)2020 and each even year thereafter, X will spend time with the Mother from 3:00pm until 3:00pm on her birthday; and

   (ii)2021 and each odd year thereafter, X will spend time with the Mother from 3:00pm on her birthday until 3:00pm.

5. On the following occasions X’s time with the Mother is suspended to allow X to spend time with the Father on the following special occasions:

   (a)For the Father’s Birthday if X is living with the Mother for a period of four (4) hours as agreed between the parties and failing agreement, commencing at 3:00pm.

   (b)For Father’s Day from 3:00pm on the eve of the day until the return to school on Monday or for years X is not at school and on non-school days 9:00am Monday.

   (c)For X’s Birthday in:

   (i)2020 and each even year thereafter, X will spend time with the Father from 3:00pm on her birthday until 3:00pm.

   (ii)2021 and each odd year thereafter, X will spend time with the Father from 3:00pm until 3:00pm on her birthday.

6. Irrespective of whether X is in full time school or not (noting she commences full time school in 2022) X will spend half of each school holiday period with each party, as follows:

   (a)The holidays will be divided equally between the parties on an alternating basis of 7 nights (term holidays) and between 7 and 14 nights (summer school holidays) as agreed between the parties.

   (b)In the event the parties cannot agree arrangements in accordance with the previous Order, X will spend time with the Father in even numbered years from the final day of public school term until 4:00pm one week later and each alternate week and in odd numbered years from the second week of all school holidays (commencing on the eighth day of each holiday period at 4:00pm) and each alternate week.

   (c)If Easter occurs in a separate period to the term 1 school holidays:

   (i)In even numbered years X will spend time with the Mother from the conclusion of school on Easter Thursday until 5:00pm on Easter Saturday, and with the Father from 5:00pm on Easter Saturday until the commencement of school on Easter Tuesday (or 9:00am if not a school day); and

   (ii)In odd numbered years X will spend time with the Father from the conclusion of school on Easter Thursday until 5:00pm on Easter Saturday, and with the Mother from 5:00pm on Easter Saturday until the commencement of school on Easter Tuesday (or 9:00am if not a school day).

7. For Christmas the following arrangements will apply (thereby suspending Order 6):

   (a)In 2020 and each even year thereafter X will spend time with the Father from 3:00pm on Christmas Eve until 3:00pm Christmas Day and with the Mother from 3:00pm Christmas Day until 3:00pm Boxing Day; and

   (b)In 2021 and each odd year thereafter X will spend time with the Mother from 3:00pm on Christmas Eve until 3:00pm Christmas Day and with the Father from 3:00pm Christmas Day until 3:00pm Boxing Day.

8. For handover:

   (a)It will occur at each of the parties’ houses on non-school days and at X’s school on school days.

   (b)The Mother or a member of her family will collect X from the Father or her school at the commencement of X’s time with the Mother.

   (c)The Father or a member of his family will collect X from the Mother or her school at the end of X’s time with the Mother.

   (d)The parties will observe the following and will instruct their agent attending handover to do the following:

   (i)Each party shall ensure that changeover is not prolonged and that the party encourages X to go with the other party. If X requires comforting that shall be undertaken by the party into whose care she is going.

   (ii)Each party will ensure that any words spoken by that party at changeover are polite and child focused whilst making eye contact.

Travel

1. If either party wishes to travel with X outside the State of Tasmania:

   (a)They may do so:

   (i)During any time that X is living with them; and

   (ii)Once annually for a two (2) week period (or such other time as agreed between the parties in writing) on the condition that X will spend make up time with the non-travelling parties for the same number of nights with such make up time to occur at the election of the non-travelling party; and

   (b)The travelling party must provide the non-travelling party with at least 30 days (for domestic travel) and 90 days (for international travel) prior notice of the proposed travel, such notice to include but not exclusively, the following details:

   (i)The proposed date(s) of departure and return;

   (ii)A copy of any proposed itinerary, or any other documentation evidencing the proposed destination(s);

   (iii)A copy or copies of the e-ticket and/or air ticket(s); and

   (iv)All addresses; telephone number(s) or other contact details where the non-travelling party can contact X during the travel period.

2. Within 7 days of either party making a request to the other party, the parties must do all acts and things, including but not limited to signing all documents necessary to obtain a passport for X.

3. Unless otherwise agreed between the parties in writing, X’s passport will be held by the Mother in even numbered years and the Father in odd numbered years.

4. If the travelling party complies with the previous Order in relation to proposed international travel, the party in possession of X’s passport must release it to the travelling party.

Communication

1. Communication between the parties concerning X, these Orders and matters of relating to major long term issues will be performed via the parenting communication app ‘Divito’ (or similar). For this Order, the party receiving the message must endeavour to acknowledge or respond to the message within 12 hours.

2. In the case of an emergency or where last minute communication is required, communication can occur by phone.

Education

1. Unless otherwise agreed in writing between the parties, X will attend A School for Kinder (commencing 2021) to year 2.

2. The parties must each be named on any school or extra-curricular enrolment relating to X.

3. Each party is permitted to liaise with any school that X attends to obtain information about X’s progress and to obtain from the school copies of X’s reports, newsletters, photograph order forms and all other documents ordinarily provided to parties and these Orders act as an authority for same.

Medical

1. The parties each inform the other immediately of any:

   (a)Change to medical care;

   (b)X’s prescriptions and/or treatment and/or medications generally; and

   (c)Hospitalisation, significant injury or health problem suffered by X and details of any treatment received by X whilst under the respective care of either party. For this the party caring for X must telephone the other immediately.

Other Matters

1. The parties are each restrained by injunction from:

   (a)Denigrating the other party or members of the other parties family to, or in the presence of X; and

   (b)Using any form of physical/corporal punishment when disciplining X.

2. To the extent not already provided for in these Orders, each party do all acts and things including but not limited to signing all documents necessary to give effect to these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 854 of 2018

MS TABBERT

Applicant

And

MR ACTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Tabbert (“the mother”) for parenting orders for X, born in 2016 (“X”). She has sought a change to X’s current living arrangements. Mr Acton (“the father”) opposed the application.

Background

1. The parties commenced cohabitation in 2015, and separated on 1 June 2018.

2. The mother lives in Suburb A. She is employed part-time by the Employer B as a customer service representative. She has a flexible work arrangement. The Employer B has agreed to facilitate changes to her work hours in accordance with X’s routine. She will work on Mondays, Tuesdays and Fridays from 9:00am until 5:00pm. For 2021, the Employer B has agreed to provide additional flexibility, so that three shifts can be worked over five days.

3. The mother’s partner, Mr C, lives in his own home in Suburb D.  They have been a relationship for approximately three years. They spend around three nights per week together.

4. The father lives in Suburb E lives in a unit not far from the home of the paternal grandmother. He is a part-time student at University and is currently unemployed.  

5. After separation, the parties implemented a shared care parenting arrangement for X. They participated in family dispute resolution with F Counselling. On 17 September 2018, they commenced a 5/2/2/5 equal care arrangement. On 8 October 2018, the father terminated that arrangement.

6. On 15 October 2018, the mother commenced these proceedings. Interim orders were made on 14 November 2018. The consent orders provided for equal shared parental responsibility; a restraint on the mother leaving X alone in the care or company of her partner, Mr C; and that handover occur at each parent’s home. The court ordered that X live with the mother on a fortnightly regime (six nights per fortnight) as follows: in week 1, from Wednesday between 5:15pm and 5:30pm until Friday at 9:00am; and in week 2, from Wednesday between 5:15pm and 5:30pm until Sunday at 5:00pm, and such other times as agreed; and X live with the father at all other times.

7. These arrangements have continued to date. On Fridays in weeks 1 and 2, the maternal grandmother assists the mother to care for X and with handovers. This arrangement is in place because the father was opposed to X attending formal child-care. His position was that X should be in his care if the mother is at work.

8. In 2021, X will commence school on three days per week.  

Proposals

1. Both parties sought orders for equal shared parental responsibility.

2. The mother proposed that X live primarily with her on an 8/6 arrangement.  In her case outline, she proposed that in the alternative, there be a shared care arrangement, whereby X would live with her in week one, from Tuesday between 5:15pm and 5:30pm (or the end of X’s school day) until Thursday at 5:00pm (or the end of X’s school day; and in week two, from Tuesday between 5:15pm and 5:30pm (or the end of X’s school day) until Sunday at 5:30pm.  At the hearing, the mother did not pursue her alternative proposal.  It was her case that she should have the primary care of X because she has a better attitude to parenting than the father. In respect of schooling, she proposed that X attend A School.

3. Until the day prior to the commencement of this hearing, the father sought a reduction in X’s time with the mother from six nights, as ordered in November 2018, to three nights per fortnight. He proposed that an order be made restraining the mother from leaving X alone in the care or company of Mr C. He proposed that the parents enrol X at a school in the Suburb E area.

4. On the day prior to the commencement of the hearing, the father amended his proposal so that the current 8/6 arrangement, as ordered, should remain in place.[1] On the final day of hearing, the father agreed to all orders proposed by the mother set out in Exhibit M1, except for the 8/6 arrangement in her favour, and the time of changeovers. He sought that the changeover occur at 5:00pm for X’s birthday and for Christmas. He indicated that the mother could decide the days on which X lives with her, so that she can manage her time in accordance with her work commitments. He no longer sought an order restraining the mother from leaving X alone with Mr C.

   [1] Exhibit F1.

Credit of the parties

1. The mother was an impressive witness. She was calm and thoughtful, and made appropriate concessions. She was a witness of truth.

2. The father was an unimpressive witness. He was argumentative and unresponsive at times. He found it difficult to make concessions. His first answer to a question about whether X loves the mother was that any child loves his or her parent. He then admitted that X loves her mother. He was unable to accept that she properly cares for X, because he is not present to witness her parenting.

3. His evidence about smacking X was not credible. He had told Ms G in the interview for the Family Report that he has smacked X once on her bottom on two separate occasions.  He said that the last occasion occurred after X was punished with timeout for slapping her grandmother. After time out concluded, she again slapped her grandmother.  He said he smacked X on her bottom and sent her to her room. However, during cross-examination, he said that he misrepresented what he meant when he said “smacked” X. He said that he meant “tapped,” and he “tapped” X with the tips of three of his fingers. I do not accept this evidence.

4. The mother gave evidence that X had made comments in January 2019 that Mr C, her partner, was dangerous. She also gave evidence about X making comments to her such as, “only love daddy, no love mummy, and Mr C bad.” The father denied that he and his mother have denigrated them in X’s presence. His evidence about X’s comments was:

   If X has picked up that certain things are bad and she repeats them, I consider that very good of her to be able to verbalise her concerns. If she thinks Mr C’s house is bad, I hope she keeps saying it, but she will never hear it from me…X can articulate very well. She knows what she likes and what she doesn’t like. If she finds something inappropriate or thinks it bad, she would say it.

5. The paternal grandmother did not give evidence, notwithstanding her involvement in X’s care. She sat in the courtroom on the first day of the hearing. She did not give evidence to explain or contradict the mother’s allegations. There was no explanation given for her not giving evidence. I infer that her evidence would not have assisted the father’s case if she had been called as a witness, in respect of his denials of denigration of the mother and Mr C in X’s presence.[2]

   [2] Jones v Dunkel (1959) 101 CLR 298.

6. I do not accept the father’s denials of denigration of the mother and Mr C in X’s presence. I accept the submission of counsel for the mother that it is likely that he and the paternal grandmother have denigrated them in her presence.

7. The maternal grandmother, who was a credible witness, gave evidence about the father’s lack of eye contact and him ignoring her when she has attempted friendly conversation on Friday morning changeovers. The father denied this and said that “a generalised hello is said…I am there to pick up X.”  He explained that a generalised hello is a “hi” to encompass anyone who might be there. The maternal grandmother denied that he says hello to her. I prefer her evidence to the father’s evidence and accept her evidence.

Family Consultant Ms G

1. Family Consultant Ms G prepared a Child Dispute Conference Memorandum dated 1 November 2018, and a Family Report dated 7 June 2019.

2. At the time of the Family Report interviews, the mother proposed that X’s time with her increase to commence on Tuesday each week after she finishes work at about 5:00pm. She proposed that X be in her care on Wednesday, in child care each Thursday and be cared for her until 9:00am on one Friday, and all day on the following Friday.

3. The father proposed that X’s time with the mother reduce, so that she spends time with her each Wednesday from 5:00pm until Thursday at 5:00pm and each alternate weekend from Friday at 5:00pm until Sunday at 5:00pm.

4. Ms G recommended that there be no changes to the arrangement whereby X lives with the mother from each Wednesday until Friday, extending to Sunday afternoon every second week; that Mr C’s unsupervised time with X be limited to one hour on any particular day until X turns three years old; and that if necessary, the parties attend a community based organisation to consider which school X will attend.

5. At the commencement of Ms G’s cross-examination, Exhibit M1 was tendered. Ms G was made aware that the parties had agreed to all issues, except for the living arrangements. She was told that the parties were each seeking an 8/6 arrangement in his or her favour.

6. At the time of the Family Report, Ms G concluded that the father had been and was viewed by X as her primary carer. She was asked about the relevance of that to the court’s decision. She said that historically there was not a “great deal of difference… in the time arrangement”. She noted that the father had unilaterally withheld X, which would have impacted X’s view of him as her primary carer. She also agreed that the agreement, that the father would be a stay-at-home parent and the mother would work, would have impacted X’s view at the time. She clarified that the importance of the father being viewed as the primary carer has become less of a consideration due to the passage of time, as there have been other arrangements in place, and also as X gets older she becomes “more independent in various ways anyway”. During cross-examination, Ms G explained that one of the factors that she took into account when suggesting the status quo remain at the time were practical considerations, “as opposed to a social science consideration”.

7. Counsel for the mother put to Ms G the various allegations made by the mother against the father, and asked her if those would influence her view as to who should be the primary parent. The allegations included that the father is controlling; he is intolerant of child-care; he is intolerant of X’s ongoing relationship with the maternal grandmother; he is not prepared to work co-operatively with the mother’s work schedule; he has engaged in denigration of Mr C and the mother’s relationship with him; and he is dismissive and not child-focused. Ms G said that there would need to be significant evidence of those allegations, and a lack of weight placed on other positive characteristics of the father, to influence her view about changing the current living arrangements. She agreed, however, that these are relevant issues as to who should be the primary carer.

1. Ms G was of the view that the difference in the time proposed by the mother “would be minimal to offset any concerns of that kind, particularly depending on how the 8/6 is divided.” It was put to her that the 8/6 arrangement in favour of the mother should be preferred because the father has demonstrated values, which are not in X’s best long-term interests.  She answered that it is a matter of degree, and the relative strengths and weaknesses of each of the parties would need to be considered.

2. Ms G’s evidence was helpful and I place weight on it. However,   the ultimate conclusions that I reach will be based on all the evidence.[3]

   [3] Hall & Hall (1979) FLC ¶90-713.

Relevant Law

1. Section 60B of the Family Law Act 1975 (“the Act”) provides:

   (1)    The objects of this Part are to ensure 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; and

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

   (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.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)…

2. Section 60CA of the Act provides that when a court is determining whether to make a particular parenting order in respect of a child, the child’s best interests is the paramount consideration.

3. In determining orders which are in a child’s best interests, the court is required to consider the relevant factors in s.60CC of the Act.

4. Section 61DA provides that a court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that child abuse or family violence has occurred. The presumption may be rebutted if not in the best interests of the child.

5. If the presumption applies, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable. If the court does not make an order for equal time, it is then required to consider whether it is in the child’s best interests, and whether it is reasonably practicable for the child to spend substantial and significant time with each of the parties.

6. I turn to consider the relevant s.60CC considerations.

Primary Considerations

Section 60CC(2)(a)

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

1. X has a loving and meaningful relationship with both parents. Ms G reported that X would benefit if she maintains a loving relationship with each parent.[4]

   [4] Family Report dated 7 June 2019, [87].

2. I consider that there is a benefit to X to continue to having a meaningful relationship with both parents.  Both parties proposals will enable this to occur.

Section 60CC(2)(b)

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

1. The father did not pursue a restraint order in respect of Mr C.  He had asserted that there was a risk of harm to X being left alone in his care or company, due to disturbing posts he made on social media from mid-2016 until October 2017 about his dislike of children. 

2. Mr C gave sworn and oral evidence at the hearing. He was regretful and embarrassed about his posts. He had removed them after discussions with his employer, the Employer B.  He was not cross-examined by counsel for the father.  The maternal grandmother gave evidence that Mr C has not behaved inappropriately towards X in her presence.  She has observed that X appears at ease with him, greeting him animatedly and engaging him in shared play or paired activities.  She has seen him actively deferring appropriate behaviour management to her daughter.

3. Ms G wrote that Mr C presented as being cooperative and forthright in providing his information relevant to the issues canvassed with him.  He reported that he and X get along well.  She wrote that X’s play with him was similar to her behaviour with her mother.  X was observed to spontaneously hug her mother and then Mr C, and they each returned her affection.  “Overall the observed interaction was familiar, warm and contained.”[5]

   [5] Family Report dated 7 June 2019, [72].

4. Ms G discussed Mr C’s posts as raising a concern that he has a poor attitude towards children. However, she said that his attitude towards X is likely to be different than his attitude to the unspecified lower class children and their families, to whom he seemed to refer.  She suggested a condition be made, that up until X turns three, she not be left in his sole care for more than one hour.  The mother agreed to a restraint order when the interim orders were made on 14 November 2018.  X turned three years of age on 18 November 2019.

5. Ms G said that it was positive that Mr C was open about his history of behaviour, and she gained the impression that he had some insight into his behaviour. She considered he was not a high concern.

6. Mr C has obtained a “Working with Vulnerable People” card.  He has completed the Parenting Orders Program in July 2019.

7. As indicated above, the father did not press for the restraint to be made in respect of Mr C and his counsel did not cross-examine him.

8. After hearing Mr C’s evidence and the other evidence, I am of the view that X is not at an unacceptable risk of harm by being alone in the care or company of Mr C.

Section 60CC(2A)

In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. This consideration does not arise in this matter.

Additional Considerations

Section 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. X is three years of age. She is too young for her views to be given any weight.

Section 60CC(3)(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);

1. X has a close and loving relationship with each parent.

2. X has close relationships with both the maternal grandmother and paternal grandmother. After separation, X lived with the father in the home of the paternal grandmother until August 2019.

3. X has a good relationship with the mother’s partner, Mr C.  

Section 60CC(3)(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;

1. Both parents were involved in X’s care during the relationship. After separation, X was in the mother’s care on six nights per fortnight. She was keen to move to an equal care arrangement. In August 2018, the parents attended mediation to discuss this. On 2 September 2018, the father told the mother by text message that he agreed.

2. The father unilaterally changed the care arrangements in early October 2018. His solicitors wrote to the mother on 8 October 2018, and told her that the shared care agreement reached by the parents was not suitable for X’s age and proposed alternate weekends in the mother’s care, with other conditions. Until the mother confirmed this was agreed and she would comply with the demands of the father, X was to remain in his care.

3. The mother engaged solicitors. On 9 October 2018, they replied to the letter, and requested that the arrangements agreed between the parents be reinstated. This did not occur and the mother commenced her application. She did not spend time with X for around four weeks. On 14 November 2018, the court ordered the 8/6 care arrangement.

Section 60CC(3)(ca)

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

1. The mother has been assessed to pay child support to the father and currently pays $98.58 per fortnight. She is currently ahead in payments.

Section 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:

(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;

1. There will be an increase of two nights for X with the mother on her proposal. The father sought that the current arrangement continue, so there would be no change.

2. Ms G’s evidence was that a change of two nights for X would be minimal to offset any of the mother’s concerns about the father’s attitude to parenting. She agreed that the relative strengths and weaknesses of each parent would need to be considered. The mother’s concerns would need to be given weight, and the positive characteristics of the father given little weight, to change the primary living arrangements for X.

3. In the Child Dispute Conference Memorandum to Court dated 1 November 2018, she wrote that if an equal time arrangement is to occur, the 5/5/2/2 time arrangement is likely to be the most suitable.

Section 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. This sub-paragraph is not relevant.

Section 60CC(3)(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;

1. Both parents have the capacity to provide for X’s physical and intellectual needs. Both parents have been involved in X’s care. The mother was her primary carer for seven months after her birth. The father then cared for X, and the mother returned to full-time work to support the family. I accept the mother’s evidence that when she was not at work, she primarily cared for X.

2. Ms G assessed the father to be a competent and caring parent. After observing X with him, Ms G wrote “the overall ease and quality of Mr Acton’s engagement with X and her delight in this was notable.” He has taken X to playgroup and kinder gym, which “will help promote her social, physical and educational development.”[6]

   [6] Family Report dated 7 June 2019, [85].

3. Ms G commented that “…the information provide by each parent suggests that they each have a mostly similar age appropriate routine to meet X’s needs.” She was of the view that they have a workable parenting relationship and to have some level of acceptance that X’s experiences will be different in the home of the other parent. They each understand that X will benefit if she maintains a loving relationship with each parent.

4. The mother will have continued flexibility with her working week in accordance with X’s routine. X spends time with the maternal grandmother once per fortnight while she is at work. The mother considers that child-care is beneficial for X and can provide her with social skills and developmental benefits. The mother is capable of making appropriate care arrangements for X when she is at work, whether that is with her mother or at child-care.

5. The mother has the capacity to provide for X’s emotional needs and encourage the relationship between X and the father.

6. I consider that the father has demonstrated a lack of insight into providing for X’s emotional needs. He has not promoted X’s relationship with the mother. He has denigrated her in X’s presence. He ceased her time with X, until she agreed to his conditions, by imposing how she should care for X, by not using child-care or the maternal grandmother. His attitude when he withheld X was to say to the mother that it might have been “a shitty four weeks …” for her. He said that it had no impact or effect on X saying, “Ms Tabbert, at that age [X] didn’t even notice.”

7. I accept the mother’s evidence that on handover, the father has not made it a positive experience for X on occasions, causing distress to her. He has prolonged the handover and made disparaging comments towards the mother. He does not reciprocate the mother’s positive communication at handover. He does not speak with the maternal grandmother on handover.

Section 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. This sub-paragraph is not relevant.

Section 60CC(3)(h)

if the child is an Aboriginal child or a Torres Strait Islander child:

(i) 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

(ii) the likely impact any proposed parenting order under this Part will have on that right;

1. This sub-paragraph is not relevant.

Section 60CC(3)(i)

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. The mother has demonstrated a responsible attitude to parenting. She provides for X by earning an income. She changed her work hours to fit in with her parenting obligations. She has confirmed with her employer that she will have continued flexibility.

2. I am of the view that the father has at time demonstrated an irresponsible attitude to parenting. He has not promoted X’s relationship with the mother. I accept the mother’s evidence that he has made unilateral decisions about X, such as moving her into a single bed and her first haircut. He did not inform the mother when he had taken X to a GP on two occasions. She found out when she was provided with a bottle of antibiotics on changeover.

3. The father has also been controlling in respect of the mother’s parenting of X. He tried to impose his views of child-care on her. He tried to dictate to her who could care for X. He is against the maternal grandmother caring for X on a long-term basis. He said that the time X spends with the maternal grandmother is up to the mother to facilitate on her available days, and he would only re-consider X being in the mother’s care on the Friday in week 2, “if it became apparent that she [the mother] was not working on the Friday”. He believes that X should “be with either parent… if they are available, rather than a third-party figure… for the long-term.” He does not have a problem with maternal grandmother spending time with X, but he does not believe it is appropriate for a “non-parental figure” to spend time with X when he is available.

Sections 60CC (3)(j) and (k)

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

(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

1. Family violence is not an issue in this matter. There have been no family violence orders made.

Section 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. The orders which I intend to make are least likely to lead to the institution of further proceedings, unless the father’s attitude to parenting does not change.

Section 60CC(3)(m)

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

1. There is no other fact or circumstance that the court thinks is relevant.

Parental Responsibility

1. The presumption of equal shared parental responsibility applies. Both parties sought an order for equal shared parental responsibility. I consider that it is in X’s best interests to make this order. The parents have workable parenting relationship, and are able to communicate, notwithstanding the conflict around this litigation.

2. I consider that it is in X’s best interests that she spend equal time with each of her parents. Such time is reasonably practicable.

3. I consider that it is not in X’s best interests for the father to have her primary care.  Although he has positive attributes to his parenting, such as being competent and caring, there are concerns about his ability to promote X’s relationship with the mother and about his attitude to parenting. I am also not persuaded that the mother should have primary care of X. I agree with Ms G that such a change to her primary care would be minimal to offset her concerns about the father.

4. Both parents have strengths to offer X. The orders that the parties have agreed are detailed.  There is a mutual non-denigration order. There are provisions for changeover not to be prolonged, for the parties to encourage X to go with the other parent and to ensure that communication is polite and child focused.  A change to equal time will ensure that both parents will have an equal involvement in X’s care and development, which I consider is in X’s best interests.   

5. I am of the view that the time proposed by the mother as an alternative position in her case outline, which she retracted, is in X’s best interests. This is a 5/5/2/2 arrangement. I consider that this is preferable to a 7/7 arrangement. It means that X will not be apart from one parent for long periods. The mother can fit her parenting obligations around her work arrangements.

6. I respect of the time of changeover at Christmas and on X’s birthday, there was no evidence about the respective proposals. There is a two hour difference in the proposals. On Christmas Day and Boxing Day, it seems appropriate to have the changeover at 5:00pm to enable X to spend most of each day with either parent. In respect of X’s birthday, she could be at school on the day and the following day in future, so I consider that 3:00 pm is appropriate, so she can be collected and dropped at school.

7. The orders that I will make are in X’s best interests and will enable her to have a meaningful relationship with both her parents.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Baker

Associate:

Date: 16 April 2020