Tatham and Fenmore - [2012] FMCAfam 966

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TATHAM & FENMORE

[2012] FMCAfam 966

FAMILY LAW – Parenting – child aged 11 years – application by the father for change of residence following the mother’s relocation to regional Victoria with the child – the child previously lived with the mother in the Melbourne metropolitan area and spent substantial time with the father – the parties were only in a brief relationship prior to the child’s birth – the child has severe behavioural and learning difficulties – the parties are highly conflicted – the father has re-partnered and he and his new partner are expecting a child in September 2012 – orders made for the child to remain living with the mother and spend time with the father.

Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA

AMS v AIF (1999) 1999 CLR 160
U v U (2002) 211 CLR 238
MRR v GR [2010] HCA 4

Applicant:

MR TATHAM

Respondent:

MS FENMORE

File Number:

MLC 376 of 2011

Judgment of:

Bender FM

Hearing dates:

23 and 24 July 2012

Date of Last Submission:

24 July 2012

Delivered at:

Melbourne

Delivered on:

11 September 2012

REPRESENTATION

Counsel for the Applicant:

Ms Jenkins

Solicitors for the Applicant:

Pearce Webster Dugdales

Counsel for the Respondent:

Ms Weiner

Solicitors for the Respondent:

Cathleen Corridon & Associates

ORDERS

The father and the mother have equal shared parental responsibility for the child X born (omitted) 2001 (“X”).
X live with the mother.
X spend time and communicate with the father as follows:

(a)
for the first two weekends of each three weekends from

after school Friday to 5.00pm Sunday (or 6.00pm Monday if Monday is a public holiday);
(b)for half of each school term holiday period as agreed between the parties and failing agreement, as nominated by the father in writing 21 days prior to the commencement of the school term holidays;
(c)
from 12.00 noon on 25 December 2012 to 5.00pm on

15 January 2013 and each alternate year thereafter and from 5.00pm on 25 December 2013 to 5.00pm on 15 January 2014 and each alternate year thereafter;
(d)from 6.00pm on the Saturday before Father’s Day to 6.00pm on Father’s Day should Father’s Day fall on a weekend when X is not spending time with his father;
(e)on X’s birthday in each year at times to be agreed between the parties and for a minimum of four hours; and
(f)as otherwise agreed between the parties.

X’s time with the father shall be suspended as follows:
(a)pursuant to order 3(a) herein, during the school term holidays and long summer vacation and recommence on the first weekend of each school term;
(b)should Mother’s Day fall on a weekend when X is spending time with his father, that time be suspended from 6.00pm on the Saturday prior to Mother’s Day; and
(c)should X’s birthday fall on a day when X is spending time with the father, X shall spend time with the mother as agreed between the parties for a minimum period of four hours.
The father shall be responsible for collecting X from his school or his mother’s residence if not a school day at the commencement of X’s time with him and the mother shall collect X from the father’s residence at the conclusion of that time.
The mother and the father keep the other informed of any medical, psychological or dental treatment recommended for X by a qualified health provider as soon as practicable after such recommendation and advise the other of any appointments made for X to attend upon the providers of such services including the date of any appointment and the name and contact details of the service provider. .
Each party shall advise the other of any serious illness or injury suffered by X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party keep the other informed at all times of their current residential address, email address and contact telephone number.
The mother do all such acts and things necessary to cause (omitted) Primary School or such other primary or secondary school as X shall attend, to provide to the father at his expense copies of all reports, newsletters, flyers, schedules, written communications including any communication book between the school and the mother, and notices including but not limited to parent/teacher interviews, school concerts, speech nights and sporting activities simultaneously with same being issued to the mother.
The parties be permitted to attend all school events and extracurricular activities relating to X normally attended by parents.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 376 of 2011

MR TATHAM

Applicant

And

MS FENMORE

Respondent

REASONS FOR JUDGMENT

Introduction

This matter relates to the parenting arrangements for the parties’ son X born (omitted) 2001 (“X”).
The father seeks orders that X live with him, his partner and their family in Melbourne and that he spend alternate weekends, half of school holidays and special occasions with the mother in (omitted).
The mother is seeking that X’s living arrangements continue whereby he lives with her and spends two weekends in each three and school holiday time with the father.

Background

The parties were only briefly in a relationship during 2000 and separated prior to X’s birth.
The father was born on (omitted) 1976 and is aged 36 years of age. He is a (occupation omitted) working for (omitted). The father has been in a long term relationship with Ms W since 2003. Ms W has an 11-year old son, Y, who lives with her and the father. The father and Ms W are expecting their first child in September 2012.
The mother was born on (omitted) 1980 and is 32 years of age. She is an (occupation omitted).
The mother entered into a relationship with Mr C in 2007 and their son Z was born on (omitted) 2009. The mother and Mr C’s relationship was volatile with instances of domestic violence requiring police intervention. These incidences were, in part, fuelled by excessive alcohol consumption by Mr C. The mother and Mr C separated on 18 May 2010.
After X’s birth, he lived in the primary care of the mother and spent regular time with the father. The parties were able to agree to X’s living arrangements without the need for court orders.
From 2006, X spent time with the father from after school Friday to after dinner Tuesday each alternate week as well as two weeks in the long summer vacation, five nights at Easter and on special occasions.
In December 2010, the mother advised the father that she was relocating with X to (omitted) in regional Victoria where the maternal grandmother resides as she could no longer afford to live in the Melbourne metropolitan area.
On 14 December 2010, the father’s solicitor wrote to the mother advising her that the father opposed the mother’s proposed move to (omitted) with X and put her on notice that if she persisted with her proposal, the father would seek to have X returned to Melbourne.
On 7 January 2011, the mother relocated to (omitted) with X.
On 18 January 2011, the father commenced these proceedings seeking inter alia urgent interim orders that the mother forthwith return to the Melbourne metropolitan area with X and a resumption of the previous living arrangements for X.
On 7 February 2011, after an interim hearing, I made orders that X live with the mother and she be permitted to remain living in the (omitted) area. I made further orders that X spend two out of three weekends with the father from after school Friday to 5.00pm Sunday (or 6.00pm Monday if Monday is a public holiday) and for half of the term holidays if the father was able to take leave.
At the interim hearing on 7 February 2011, the matter was listed for final hearing on 19 October 2011. Orders were also made for the preparation of a Family Report.
A Family Report was prepared by Mr O dated 22 September 2011. Under the heading ‘Recommendations’ on page 29 of his Report, Mr O stated:
1.X’s arrangements remain as they are until there is a further assessment by a suitably qualified Child Psychiatrist.
On 10 October 2011, orders were made by consent in Chambers adjourning the final hearing of this matter to 23 July 2012 and providing for X to attend upon Dr A for the purposes of a psychiatric assessment.
The orders of 10 October 2011 otherwise continued X’s living arrangements in accordance with the 7 February 2011 orders as well as making provision for X to spend time with the father in the 2012 long summer vacation.
It is common ground between the parties that prior to the mother and X relocating to (omitted), X had been experiencing difficulties in his reading and had been exhibiting inappropriate behaviour at his school. He also suffered from chronic bed wetting.
After X and the mother moved to (omitted), X’s behaviour at his new school, (omitted) Primary School, deteriorated significantly.
The parties provided the Court with a copy of a letter prepared at their request by Ms R, the principal of (omitted) Primary School, dated 24 May 2012 describing X’s behaviour. In paragraphs 3 to 6 of her letter, Ms R states as follows:
X commenced at our school early in 2011. He presents as a very anxious young man, often very angry and has difficulty with impulse control. He is below average in academic achievement, and has a diagnosis of dyslexia.
X is often assisted by an integration aide who was based in his classroom in 2011 and again in 2012. This aide is not assigned to X, but another child in the classroom.
During 2011 X displayed very violent and abusive behaviour towards both other students and adults, both inside and outside. This behaviour occurred almost daily. He was not compliant in the classroom, and teachers found it difficult to develop any sort of working relationship with him. X would not remain in the classroom for sustained periods of time, staff would need to spend hours over a week supervising when he was outside without permission. He was often agitated at these times, and as he had previously threatened to hang himself with a skipping rope, staff had justified concerns for his safety. We informed his mother about this threat, as we took it very seriously.
We often needed to ring Ms Fenmore for support, and usually either Ms Fenmore or her mother (Mrs Fenmore) were able to remove X from school in a timely manner.
Further at paragraphs 9 to 15 of her letter, Ms R states:
In an effort to support X it was decided that he change from mainstream to our “community class”, feeling that a more relaxed environment might help with X’s issues. Mrs Fenmore came on occasion to support X in this class and assisted with provision of an Art activity.
The shifting of classrooms appeared to make very little difference in his behaviour. He would not engage in his school work, and his pattern of non-compliance and aggression continued. In outside classes e.g. Gardening as part of the (omitted) program, he was often destructive (stepping on plants, fighting with others using garden tools). He was excluded from some special activities due to this violent behaviour eg. He was only permitted to attend the Grade 3 and 4 Camp during the day, and if his father was present.
In 2011, a Behaviour Plan was drawn up, with clear and consistent consequences for X’s behaviour. This did little to improve things.
In 2012 X returned to a Mainstream class (the Community Class stream was disbanded) and is currently in Grade 5. His violent behaviour has diminished, we rarely see physical violence now, however he is often verbally abusive to staff, especially his current classroom teacher. A communication book has been

re-established, and the school is providing clear and detailed advice to his parents on a daily basis.
X is still usually non-compliant and disruptive in classroom activities, (in all settings), he continues to distract others and says he “hates this school”. His class teacher is following the advice provided by Ms L and the focus is still on X remaining in his seat and not distracting others. He has a clear behaviour contract with consistent consequences for poor behaviour (attached).
He enjoys using the computer, and is often aggressive when asked to turn it off, or leave it. He still removes himself from the classroom, but will now usually come to myself rather than going outside.
We still need to ring either Ms Fenmore, or Mrs Fenmore, for support and to remove X from school when his behaviour is unacceptable and impacting on others. He is given a number of chances and warnings before this happens.
Due to X’s behaviour at school, the school recommended that X attend upon Ms L, psychologist. X has been seeing Ms L regularly for 12 months. Ms L works closely with X’s school and with the mother to develop strategies and interventions to assist X at school.
It is agreed between the parties that since Ms R prepared her letter, there has been a measurable improvement in X’s behaviour at school.
X has been involved in diving since early 2012. He was recently chosen to represent Victoria in the (omitted) in Sydney between 28 July 2012 and 3 August 2012. X has been nominated to be an ambassador for Victorian Schools due to his diving achievements.

The Evidence

The father’s evidence

In support of his Application, the father relies on his affidavits filed

18 January 2011, 26 September 2011 and 25 June 2012. The father also relies on the following affidavits:
(a)affidavits of Ms W filed 18 November 2011 and 25 June 2012;
(b)affdavit of Ms Sfiled 10 October 2011; and
(c)affidavit of Ms G filed 21 June 2012.
None of the father’s witnesses were required to give viva voce evidence at the final hearing.
The father also relies upon the Family Report and the addendum Report prepared by Mr O in this matter and the assessment and report of Dr A annexed to his affidavit filed 10 May 2012.

The father

The father filed a second Amended Application on 25 June 2012.

He seeks orders that X live with him and spend alternate weekends, half school holidays and special occasions with the mother. In the alternative, the father seeks orders that would continue the current living arrangements for X.
It is the father’s evidence that given X’s behavioural difficulties, his stated dislike of (omitted) Primary School and his desire to spend more time with the father, it is in X’s best interests that he live with the father.
It is the father’s evidence that he believes that he and his partner

Ms W are best able to manage X’s behaviours. The father is of the view that he and his family are able to set the appropriate boundaries and to provide the structure and routines that will ensure X is able to manage himself so that he can fully participate in his schooling and maximise his potential.
It is the father’s evidence that he believes the mother has failed, and continues to fail, to provide the necessary structures and discipline that X requires to ensure that his behaviours and learning difficulties are addressed.
It is the father’s evidence that the mother minimises the extent of X’s behavioural and learning difficulties and therefore does not put in place the necessary interventions and strategies that will better manage X’s behaviours and assist him with his learning.
The father concedes that X’s behaviour can at times be difficult but that generally X’s behaviour when spending time with he and his partner is well managed. It is the father’s evidence that X understands and accepts the boundaries and behaviours which he is required to abide by when he is living in the father’s home.
It is the father’s evidence that prior to the mother’s unilateral decision to move to (omitted), X had been attending (omitted) Primary School in (omitted). Whilst there had been some incidences of inappropriate behaviour from X at (omitted), including the parents being called to the school as X had been throwing furniture and threatening to harm children, generally he had been happy and his behaviour at that school had been acceptable.
It is the father’s evidence that since X moved to (omitted) and has been attending (omitted) Primary School, there has been a marked deterioration in X’s behaviours. These are eloquently described by Ms R in her correspondence to both the parents.
It is the father’s belief that the deterioration in X’s behaviour is directly related to his move to (omitted) as X hates (omitted) Primary School and wants to return to (omitted) Primary School where he was settled and had a firm friendship group.
It is the father’s evidence that in 2011, because of X’s ongoing difficulties in reading and writing, he arranged for X to attend upon Ms S the proprietor of Dyslexia Assessment and Support Services for the purposes of a dyslexia assessment of X.
It is the father’s evidence that Ms S diagnosed X as having the specific learning difficulty of dyslexia. Ms S produced a lengthy report that outlined a number of strategies to be implemented to assist X with reading and writing in light of this diagnosis.
It is the father’s evidence that he provided the report to the mother and to X’s school. It is the father’s evidence that the mother rejected the diagnosis of dyslexia. It is the father’s evidence that the mother has failed to implement the various strategies suggested by Ms S to assist X overcome his difficulties in relation to reading and writing.
X is a chronic bed wetter. The father is concerned about the manner in which the mother manages this condition. It is the father’s evidence that the mother continues to place X in night nappies rather than addressing the problem directly. It is the father’s evidence that when X is with him, he wakes X up and takes him to the toilet during the night and that in so doing there are no issues with X wetting the bed when in his care.
In the mother’s affidavit material filed in this matter she deposes to taking X to an incontinence specialist in 2009 and that she put in place the strategies suggested by that specialist at that time. It is the father’s evidence that the mother did not advise him that X had attended upon the incontinence specialist or of the various strategies suggested by that specialist to assist X with the issue.
It is the father’s evidence that the mother’s failure to advise him of the involvement of the incontinence specialist is indicative of the mother’s failure to consult with him in relation to the major decisions concerning X. It is his evidence that she did not consult him in relation to the choice of schools that X has attended, did not tell him of X’s initial involvement with Ms L, nor does she consult him in relation to X’s extracurricular activities.
In the father’s trial affidavit filed 25 June 2012, the father takes issue with the mother’s decision to involve X in diving, indicating that his preference is for X to be involved in team based sports. He is of the belief that team sports will better assist X in forming friendships and with his social skills generally. However, at the final hearing of the matter, the father expressed real pride in X’s achievements in his diving and indicated that he is now fully supportive of X’s efforts to date in that sport and indicated that he will encourage X to continue with his diving.
It is the father’s evidence that X has a close and positive relationship with Ms W and with his step-brother Y.
Whilst acknowledging X’s expressed wish to attend (omitted) College in the event he were to live with him, it is the father’s evidence that if X were to live with him, X would return to (omitted) Primary School and that when it is time for X to commence high school, he will attend (omitted) Secondary College, which is where Y is currently enrolled. It is the father’s evidence that he could not afford to send X to (omitted) College.

The father and Ms W are expecting their first child in September this year. It is the father’s evidence that whilst the arrival of the new family member will require some adjustment in the household, he does not believe that X will have any difficulty in adjusting to this new addition to the family.
The father was specifically cross-examined in relation to his opinion of the mother’s parenting of X. Whilst the father believes the mother loves X, he was otherwise unable to say anything positive about the mother’s parenting of X. It is his unequivocal evidence that he thinks that the mother is doing a “lousy job” as a parent.

The mother’s evidence

In support of her case, the mother relies upon her affidavits filed

2 February 2011, 6 October 2011 and 6 July 2012. The mother also relies upon the following affidavits:
(a)affidavit of Mrs Fenmore sworn 9 July 2012; and
(b)affidavit of Mr T filed 19 July 2012.
None of the mother’s witnesses were required to give viva voce evidence at the final hearing.

The mother

It is the mother’s proposal that the existing living arrangements for X continue.
It is the mother’s evidence that she has been X’s primary carer since birth and that it cannot be in his best interests to be moved away from her care or from his brother Z with whom he has a close and loving relationship.
It is the mother’s evidence that X has struggled since moving to (omitted) and to (omitted) Primary School and that his behaviours at school, particularly in 2011, have been extremely challenging.
It is the mother’s evidence however that those behaviours have been improving in 2012 and, in particular, over the last two to three months.
It is the mother’s evidence that X is now very happy at his school, that he is making friends and that the success he is achieving in diving has done a great deal to boost his confidence and self-esteem.
It is the mother’s evidence that she believes X’s adjustment and difficulties subsequent to the move to (omitted) are a direct result of the father’s failure to support the move, the stress caused by the father commencing this litigation and also the stress caused by the very serious motor vehicle accident that her father was involved in shortly after their arrival in (omitted).
The paternal grandfather was in a serious motor vehicle accident in early 2011, which left him very seriously injured and hospitalised for over four months. It is the mother’s evidence that X is close to his grandfather and that this accident was very upsetting for him.
The mother denies that she minimises X’s difficulties. It is her evidence that she has worked with, and continues to work very closely with, X’s school to implement strategies to assist X. It is her evidence that she speaks regularly to X’s class teacher and with the principal. It is her evidence that she has, at the school’s request, attended regularly to take X from the school when his behaviour has become unacceptable.
It is the mother’s evidence that upon the recommendation of the school, she made all necessary arrangements for X to attend upon Ms L, psychologist. It is her evidence that she works closely with Ms L and follows her recommendations and advice in relation to the strategies to assist X with his behaviours.
It is the mother’s evidence that she has borne the cost of these interventions with no assistance from the father.
It is the mother’s evidence that X does have a routine in her home. It is her evidence that if X misbehaves he is required to go to his room and to think about his behaviours. If X continues to misbehave, he has privileges taken away as punishment for those bad behaviours.
In relation to X’s difficulties with reading and writing, it is the mother’s evidence that when with her, X is able to read. He has recently finished reading ‘The Wizard of Oz’. She concedes however that he will not read at school and that his class teacher has been unable to assess his level of reading.
In relation to Ms S’s assessment that X is dyslexic, it is the mother’s evidence that she does not like the label of dyslexia as she believes it is prejudicial, upsetting to X and gives him a reason not to work harder at his reading.
It is the mother’s evidence that three years ago X was prescribed glasses to assist him with his reading. This was not because X has poor eyesight but to assist X to focus and concentrate. The mother concedes that X only uses his glasses when he chooses to do so and under quite intense cross-examination was unable to say where his glasses were. She concedes that X rarely wears his glasses.
The mother was also cross-examined in relation to whether she had implemented the strategies suggested by Ms S to assist with X’s reading, including the use of a green slide. Again, the mother concedes that she does not know the whereabouts of the green slide and that it is rarely used when X does his reading in her home.
In relation to X’s bed wetting, it is the mother’s evidence that she took X to see an incontinence specialist approximately three years ago. It is her evidence that the specialist suggested using a number of strategies including a pad with a bell at night but that after six to twelve months, that strategy was not effective. It is the mother’s evidence that the incontinence specialist recommended that X be given a break from overt interventions for a period of time before further attempts be made to try and assist X with that issue. It is the mother’s evidence that X is not placed in nappies but rather a form of pull-up that is provided by the (omitted) Hospital for older children with incontinence problems. It is her evidence that X uses the pull-ups at his own discretion, usually when tired or unwell and that he has no issue with using them.
It is the mother’s evidence that the advice on the (omitted) Hospital website in relation to children with bed wetting issues is that they should not be woken up and taken to the toilet during the night as this does not teach them self-regulation.
It is the mother’s evidence that earlier this year she received a referral from X’s treating general practitioner for X to see a further incontinence specialist. She concedes that she has not as yet made an appointment for X to attend upon the incontinence specialist as she lost the referral and has not obtained a further referral from X’s doctor.
It is the mother’s evidence that she now has an amicable relationship with Mr C, Z’s father, and that they have been able to put in place arrangements by agreement for Z to spend regular time with his father. It is the mother’s evidence that theirs was a volatile relationship with instances of domestic violence arising from Mr C’s binge drinking. It is the mother’s evidence that Mr C has undergone drug and alcohol counselling and that he has now addressed this issue.
It is the mother’s evidence that she has obtained employment at the (omitted) Childcare Centre and has purchased her own home in (omitted). It is her evidence that she intends to continue to live in (omitted).
It is the mother’s evidence that she finds it extremely difficult to communicate with the father. It is her evidence that he is continually critical of her as a mother and challenges any decisions that she makes in relation to X’s care.
It is the mother’s evidence however that X loves his father and that theirs is a close and loving relationship.

Ms R

Ms R is the principal of (omitted) Primary School. Ms R gave viva voce evidence at the final hearing of this matter.
It is Ms R’s evidence that she has been the principal of (omitted) Primary School since the commencement of term two in 2011.
It is Ms R’s evidence that in 2011 X was exhibiting violent behaviour on an almost daily basis and sometimes more than once a day. It is Ms R’s evidence that there has been a measurable decrease in X’s bad behaviour in 2012, particularly in the last two to three months.
It is Ms R’s evidence that last year X would leave the classroom on an almost daily basis and that she or another staff member would have to be outside supervising him for up to an hour. This behaviour has also decreased.
It is Ms R’s evidence that in 2012 arrangements were made so that X’s classroom is situated directly opposite her office. When X feels the need to leave the classroom because he is feeling frustrated, he now generally goes and talks to her rather than wandering around the school requiring independent supervision.
Ms R confirms that it was at her recommendation that the mother took X to Ms L. Ms R worked closely with Ms L at her previous school where she assisted students with difficult behavioural issues.
It is Ms R’s evidence that the school is working closely with Ms L and has put in place many of her recommendations to assist X’s behaviour. It is her evidence that Ms L has attended the school to observe X in the school environment and has not only worked with her but also with X’s class teacher to assist in better managing X and his behaviours.
It is Ms R’s evidence that X does not qualify for funding for an integration aide and that the school has been unable to provide a designated aide for him. It is her evidence however that the school is able to provide support from another integration aide who works in X’s classroom with another student. It is her evidence that X receives considerable one-on-one support from the integration aide, particularly with his reading and writing, and that they have been able to develop a very positive rapport that has been of real assistance for X.
Ms R also speaks very positively of X’s 2012 classroom teacher, Mr W. It is her evidence that Mr W has been a very positive influence on X as he is firm but calm in his dealings with X. It is her evidence that if Mr W continues at (omitted) Primary School next year, she will do all she can to ensure that he remains as X’s teacher.
As noted, it is Ms R’s evidence that there has been a quite marked improvement in X’s behaviour in the last two to three months. It is her evidence as follows:
X is presenting now as a child who is calmer and chattier. He comes in and sees to me in the morning just for a chat to tell me what he has been up to, particularly his diving and what he might have done at the weekend in a diving competition.
Ms R expands on her evidence as follows:
He still presents as a child with learning and behavioural issues. There is, you know, still work to be done and still improvements to be made. He is now playing soccer every lunch and playtime with children of his own age, and there are very few issues coming from the soccer field. Last year X at lunchtime did not play with anyone. He was on his own often or upsetting other children. I asked X earlier this year what had changed for him and why at lunchtime he felt he was now able to join in a game, and he said and, you know, this is best recall of his words were, “I’ve given up bullying the other kids and I’ve decided to be nice so I can have some friends.”
Ms R then explains as follows:
… when they started to play soccer in around probably March when it got a little bit cooler, we, as teachers, monitored that area very closely. We were concerned that the behaviour that we had seen last year might come back and it might end up to be not a pleasant experience for the children on the soccer field. We now don’t take any notice when X is playing soccer. He’s just playing soccer with the other kids.
Ms R also gives evidence as follows:
There are still times when he leaves the classroom, but he – instead last year he would leave in a very angry frame of mind. He would run away when I went out to supervise him. He would swear and be quite abusive. Now, he will say things like, “I just need a bit of time” or “I’m just going to sit here for a minute” and he sits in the chairs just outside the office area in the foyer.
Ms R then gives evidence as follows:
He appears to be having friends. The other – last time – last week when I was on duty after school he was a bit late moving off to walk to mum’s work and I – I remember I said to him, “X, why are you still here? Is someone picking you up” No, I’m walking to mum’s work. “Well, you better get going”. I’m just hanging out with my friend”, who is a boy in another class.
Ms R was asked by me to describe what kind of boy X is. It is Ms R’s evidence as follows:
I’m very fond of X. I find him to be, when he is not in an angry state, a very polite – and that sounds like a contradiction – a very polite, personable young boy. … he puts on an armour to protect himself from whatever the perceived problems might be going to be. He has been in tears with me on a number of occasions. He has found this whole past, you know, 18 months or so very stressful.
Ms R was asked why she thought X had found the past 18 months so stressful and in particular did she believe it was because he was at a new school or that there had been such a significant change in lifestyle. It is her evidence as follows:
Look, sometimes that happens. Sometimes he says to me, you know, “I want to live with my Dad.” Sometimes he says, “I want to live with my Mum.” Sometimes he talks about Z and how much he, you know, loves his little brother.
Ms R was asked which X she was seeing more often these days; the delightful X or the X exhibiting inappropriate behaviours? It is Ms R’s evidence as follows:
More often these days, I’m seeing the delightful X. … Last year he was not very often present. … I think X is now, you know, trusting us. I’m sure there will be days where he says he hates this school – all children say things like that – but he walks in the morning with a smile on his face. He walks out in the day happy, and – this sounds like we’ve set it up, but we haven’t – he, last Thursday, for the first time ever, was sent to me for exemplary work, and he got two Principal’s Award stickers. … his teacher, Mr G, has been trying to find the week to make X student of the week, and he said if it hadn’t been Court next week, he would have made X student of the week in his classroom for this week, but he didn’t want to do it because it would look like it was, you know, pre-planned. … So I’m seeing a happier, calmer boy. I see a boy who loves both his mother and his father, and he hops off for the weekend happily with whoever he’s going away for the weekend with or whoever he’s going home to. So we’re seeing a happier, calmer X more often than not these days.
Ms R was asked about her involvement with both the mother and the father.
It is her evidence that the school has seen a lot of the mother due to X’s behaviour and that the mother is punctual and comes to the school when needed.
When questioned as to whether she felt the mother is ignoring or downplaying X’s problems, it is Ms R’s evidence that the mother is very aware of X’s problems and that she is not ignoring them at all.
In relation to the father, it is Ms R’s evidence that whilst she has not had as much interaction with the father, she has spoken to him on the telephone on a number of occasions and that his involvement is always appropriate. She makes the observations that there are a lot of children at the school who have parents that do not live in (omitted) and that they have no contact with the school whatsoever. However she finds the father to be a concerned and caring parent.
It is Ms R’s evidence that if the Court makes an order that X live with his father, in her experience, it is preferable that any change of school take place at the end of the school year rather than during the school year as this is least disruptive for the child.

Dr A

Dr A is a child psychologist who prepared a psychiatric assessment of X which is annexed to his affidavit sworn 8 May 2012. Dr A also gave viva voce evidence at the final hearing of this matter.
In his assessment dated 1 May 2012, under the heading ‘Conclusion’ at page 21, Dr A states as follows:
During my interviews with X he presented as an intelligent, articulate boy who initially seemed quite wary of seeing me, as indicated by his hiding behind the sofa. … The clearest indication of X’s feelings about his situation are shown by his family drawing in which he is the dominant figure, separated by walls from the faceless figures of his mother’s and father’s families. When he was first asked to nominate three wishes, X’s first wish was for his parents to stop fighting and his second wish was to see his parents reunited, even though he recognizes this is most unlikely to happen.
Dr A saw X on three different occasions. X told Dr A that he wants to spend more time with his father. He also told Dr A that if he lived with his father, he wanted to go to (omitted) College in Melbourne and that if he stayed living with his mother, he wanted to attend (omitted) Grammar in (omitted). X told Dr A that if he lived with his father he would not miss his mother, Z or his grandmother but also indicated that he really did not want to have to choose between his parents.
On page 22 of his assessment, in summary Dr A states as follows:
In summary, X is an almost 11 year old boy who has had some developmental difficulties as indicated by his primary enuresis and reading difficulty. As stated above, I believe that X would benefit from a psychological assessment by an experienced paediatric neuropsychologist to identify any underlying reason for his difficulty reading and to guide his parents and teacher in remedying this. X’s longstanding behavioural problems are at least in part, due to the ongoing conflict between his parents and the somewhat omnipotent position he has been allowed to assume, particularly in his mother’s household. X also shows some evidence of anxiety and oppositional behaviour if he does not get his own way. Any decision about X’s living arrangements should include discussion of realistic schooling options.
Under the heading ‘Recommendations’ on page 22 of his assessment, Dr A states as follows:
1. Neuropsychological assessment as suggested above.
2. Consideration of altered living arrangements, for X to live primarily with the father and spend time with the mother, preferably as agreed by them. Prior to any relocation it is essentially that his parents inform X what are realistic educational options and that they will have the final say about his schooling.
3. Reduction in parental conflict. There is considerable evidence that parental conflict between separated parents is a major source of emotional stress for children. Any steps that Mr Tatham and Ms Fenmore can take to agree on parenting arrangements and ways of parenting co-operatively are likely to benefit X considerably.
4. Referral to Child & Adolescent Mental Health Service or a child psychiatrist for ongoing assessment and management, preferably once parenting arrangements have been finalized. It is unlikely that X’s difficulties will be completely resolved by a reduction in the parental conflict and a change of living arrangements, therefore X may benefit from ongoing help by specialist child mental health professionals.
5. Subject to the parents agreeing, I am happy for a copy of this report to be released to any mental health professional involved in X’s ongoing care.
In his viva voce evidence, Dr A was asked to expand on the recommendations in his report. Dr A confirmed that his recommendation that the Court should consider a change of residence for X is based substantially on X saying he wanted more time with his father and on X’s somewhat unrealistic view that he would be able to attend (omitted) College in that circumstance.
Dr A made very specific reference to the picture drawn by X of his family which shows him as being very much isolated and in the middle of the conflict between his mother’s family and his father’s family. It is Dr A’s evidence that he has rarely seen a picture that so clearly shows how divided or how isolated a child feels. It is Dr A’s evidence that in addition to X’s stated wish to see more of his father, this picture also caused him to recommend that the Court consider a change of residence for X.

It is Dr A’s evidence however that he has deliberately worded his recommendation that the Court should ‘consider’ a change of residence rather than making an outright recommendation that there be a change of residence.
It is Dr A’s evidence that if the Court were to form the view that the mother minimised X’s learning difficulties and behavioural issues to the extent that they were not being properly addressed, then that would be a real matter of concern in relation to X’s best interests.
It is Dr A’s evidence that he is of the view that the mother tends to downplay X’s behavioural issues. Dr A states that he is not in a position to say whether the father is more realistic in relation to X’s behavioural difficulties or whether he is somewhat exaggerating those issues. Dr A is quite clear however that the parents have very different views as to the extent of the issues affecting X.
Dr A was asked at the final hearing why he thinks X’s behaviour deteriorated after the move to (omitted) and to his new school. It is Dr A’s evidence as follows:
I’m not sure I can answer that. I think that there was increasing conflict between the parents after X moved from Melbourne, and that Mr Tatham, I think, resented the fact that he was having less time with X than he had previously had. There may have been some particular characteristics of the (omitted) school which I’m not able to answer. … Because of his behavioural problems, and so to what extent, in an already vulnerable boy with, as you said, learning difficulties, some prior behavioural problems, with parents in a conflicted relationship, that whatever the issues at (omitted) were the final precipitant for an escalation of his behaviour.
It is Dr A’s evidence that he believes it is vitally important that X have a psychological assessment by an experienced paediatric neuropsychologist to try and ascertain the underlying causes of X’s difficulties. This would enable X’s parents, and those teaching him, to be provided with guidance about the way to assist him, as the inability to read in modern society has such a huge impact on self-esteem. As Dr A says:
If you can’t stand up in front of a class and read like your mates can, then you feel dumb even if you’re not dumb and that doesn’t do any child much good.
The Court notes that X is undergoing such an assessment in August 2012 at (omitted) Medical Centre, (omitted).

Mr O

Mr O is a Regulation 7 Family Consultant with the Federal Magistrates Court. Mr O prepared a Family Report dated 22 September 2011 and a brief addendum dated 27 June 2012. The latter followed receipt by Mr O of Dr A’s psychiatric assessment. Mr O did not reinterview the parties or X for the purposes of his addendum.
Given that Mr O has not interviewed X or the parties since August 2011 and the subsequent assessment of Dr A, neither party sought to cross-examine Mr O in relation to his Family Report.

The law

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Presumption of equal shared parental responsibility

Both parties propose that they have equal shared parental responsibility for X.
Both parties agree that they have real difficulty in communicating with each other in relation to arrangements for X.
It is the mother’s evidence that she finds it extremely difficult to communicate with the father and ideally would prefer not to. It is her evidence that he denigrates any decisions made by her in relation to X and that he disagrees with her opinions or views as to the best way forward for their son.
It is the father’s evidence that the mother fails to consult him in relation to the medical and educational decisions that she makes in relation to X and that this makes it very difficult for him to be an active participant in relation to the decisions that need to be made in respect of X, especially in relation to his behavioural and educational difficulties.
Despite these difficulties, until the mother’s decision to relocate to (omitted), the parents had been able to make arrangements between themselves in relation to X and were able to adjust those arrangements when necessary to suit their particular circumstances. They had in place a sensible arrangement for X’s living circumstances. Both parties were also involved with X’s schooling.
The picture that X drew for Dr A of his family is chilling.
When discussing X’s picture, Dr A noted:
I’ve seen a lot of children’s drawings in the years I’ve done these assessments and I have rarely seen one as graphic as that.
There is no doubt that the conflicted relationship of X’s parents is impacting on and exacerbating the difficulties that X experiences.
Further, there is no doubt that given those difficulties, X desperately needs both of his parents to work together in order to assist him in surmounting his problems.
That it is in his best interests that his parents jointly make the decisions for X’s long term care, welfare and development is unquestionable.
It is my intention to make orders that the parties have equal shared parental responsibility in relation to X and for both of them to accept the responsibilities that such an order brings to them in as cooperative and unified manner as they possibly can.

Consideration of equal time or substantial and significant time

Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent. Section 65DAA(1) provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65DAA(2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the Court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)         the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the Court considers relevant.
When determining whether an order should be made for equal time or significant and substantial time, the Court must consider whether it is in the child’s best interests that such an order be made and whether such an order is reasonably practicable.[1]
[1] MRR v GR [2010] HCA 4.
In this matter, neither party seeks orders be made that X spend equal time with both of them. Such an order is not practical given the geographical distance between the parties.
Both parties however propose that X live with them and spend significant and substantial time with the other.

Best interests of the child

When determining what is in the child’s best interests, the Court must consider the matters set out in sections 60CC(2) and (3) of the Act. Each of the matters contained in these subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties’ proposals, or such other arrangement as the Court determines, given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160,

U v U
(2002) 211 CLR 238), is in the child’s best interests.
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:

Section 60CC2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

X loves and is loved by both of his parents.
X was born after his parents separated and has accordingly never lived with his parents as a single family unit.
X has always lived in the mother’s primary care and, to the parties’ credit, has spent regular, consistent and ongoing time with his father since birth.
Whilst the parties dispute with whom X should live, neither is proposing that he not spend significant and substantial time with the other.

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

I am satisfied that X is not at risk of psychological or physical harm when in the care of either of his parents.
Whilst the father is highly critical of the mother’s parenting of X, particularly in relation to her management of his behavioural and educational difficulties. I am of the view that the father’s concerns do not equate to X being exposed to or subject to abuse, neglect or family violence when in his mother’s care.
What is of concern is the level of potential psychological harm being afforded to X because of his exposure to the mother and father’s conflicted relationship.
Reference has already been made in this judgment to the drawing of his family that X drew for Dr A and how graphically this indicates the division and isolation X feels as a result of his parents’ conflict.
Ms R, the principal of X’s school, told the Court of X’s comments to her on how conflicted he feels about which parent he should live with.
X is a young boy who has exhibited behavioural difficulties for some time and whose behaviour in the last 18 months has significantly deteriorated. This coincides with considerable tumult and change in his life and a marked increase in the conflict between his parents, particularly centred on this litigation.
It is vitally important for X and his future well-being that the mother and father accept responsibility for their conflict and take positive steps to find ways to work more closely together in relation to X’s parenting so that they limit his exposure to their conflict.

Section 60CC(3)

Section 60CC(3) of the Act sets out the additional considerations that the Court must look at when determining what is in the child’s best interest. Each of the matters set out under that section will be considered in turn where applicable in this matter.

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

Whilst X expresses no overt wish as to which of his parents he live with, he told Dr A that he wishes to spend more time with his father.
Prior to the mother’s relocation to (omitted), X was spending time with his father from after school Friday to after dinner Tuesday in each alternate week; a full four days in each fortnight with his father.
Since the move to (omitted), X has been spending two weekends out of three with his father.
It is clear from X’s statements to Dr A that he misses having an extended period of time with his father in each fortnight. At one stage X commented to Dr A that he wished his parents lived two minutes apart so that he could live two weeks in turn with each of his parents.
Dr A is quite clear that while X expresses a wish to be able to spend more time with his father, he does not express a wish to live with his father.
Whilst the mother has sound practical and economic reasons for her move to (omitted), the outcome for X of this move is that he is not able to spend the time with both of his parents that he wishes to.

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)

As previously noted in this judgment, X has a close and loving relationship with both his mother and his father.
His mother has had his primary care since birth and he has spent consistent and regular time with his father.
X is also very close to his maternal grandmother and it was she that X told Dr A he would most miss if he were to move to live with his father in Melbourne.
The maternal grandmother lives in (omitted) and actively supports the mother in her care of X. She assists with school delivery and collection when the mother is working as well as taking X to his extracurricular activities.
X is also close to his little brother Z who is now aged three. Ms R reports X telling her how much he loves his little brother.
X also has an appropriate relationship with his maternal grandfather and his maternal step-grandfather.
X also has a close and loving relationship with the father’s long-term partner Ms W.
X also has an appropriate sibling relationship with his step-brother Y, Ms W’s 12-year old son.
X also has a close relationship with his paternal step-grandmother as well as the extended paternal family.

Section 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

In considering this factor, the Court must also take into account sub-sections 60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the Court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     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; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the Court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Despite their dysfunctional relationship, the parties have ensured that X has always been able to have a relationship with the other parent since birth.
The father expresses concern that the mother has failed to consult him in relation to decisions for X’s school and medical interventions with some justification.
The mother took X to see an incontinence specialist in 2008 without prior consultation with the father.
Similarly in 2011, the mother arranged for X to attend upon Ms L, psychologist, again without prior consultation with the father.
It is the mother’s evidence that she finds communicating with the father extraordinarily difficult as he rejects or denigrates any decision she makes in relation to X’s care.
When parents fail to consult in relation to their child’s health and educational issues, the person most impacted is that child.
In this case, X has some very serious issues that are impacting on his well-being and future development.
His enduring enuresis must cause him embarrassment and impinges on his ability to have sleepovers at friends’ places or go on school camps. For it to be effectively addressed, both his parents should be consulting the appropriate specialists for advice and then jointly implementing that advice so that there is a consistency in treatment for X.
Similarly in relation to his ongoing behavioural and learning difficulties, those who are assisting X will need the input of both his parents in order to complete a full and proper assessment and to make the necessary recommendations. When those recommendations are to hand, again, for them to be fully effective both parents need to embrace them and follow them consistently.

It is therefore going to be vitally important for X that whatever their differences are, the parties to these proceedings find a way to better communicate and to ensure that they both commit to being guided by and to following the recommendations of those working to assist X.

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

This judgment has already set out the impact on X arising from his relocation with his mother to (omitted) on his ability to spend time with his father and the extended paternal family.
In the event the father is successful in his application, X will move to live in Melbourne. His mother and maternal grandmother will remain in (omitted).
The practical difficulties that have arisen in relation to X being able to spend extended block periods of time with his father during the school term would be applicable to his mother, grandmother and brother Z if there were to be a change of residence.
Whilst X told Dr A that he would not miss his mother or brother, I am satisfied that X is not emotionally mature enough to understand the impact on him if he was to move from his mother’s home.

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

The impact on X arising from his move to (omitted) has already been commented on at length in this judgment.
Whilst X is able to spend regular time with his father, he is not able to do so during the school week and it is clear that X misses that level of involvement with his father and his father’s family.
The same practical difficulties are applicable in the event of a change of residence for X from his mother to his father as the distance between (omitted) and (omitted) is such that X would only be able to spend weekend time with his mother, brother and maternal grandmother during school terms.

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

This subsection goes to the heart of this matter.
It is the father’s evidence that the mother has failed to meet X’s emotional and intellectual needs.
It is the father’s evidence that the mother downplays the extent of X’s behavioural and learning difficulties such that she fails to consistently put in place the structures and interventions that will assist X to overcome his difficulties and maximise his potential.
It is the father’s evidence that he is better able to manage X’s behaviour and put in place the requisite structures and consistency to allow X to overcome his current difficulties and maximise his potential.
It is the father’s evidence that the mother does not properly attend to X’s medical needs. He raises concerns about her management of X’s ongoing enuresis and particularly worries that X wears night nappies whilst in the mother’s care.
The father also expresses concern about the mother’s refusal to implement strategies to assist X, particularly where such advice is as a result of experts consulted by the father or where she is not in agreement with the advice given.
The father makes particular reference to the diagnosis that X is dyslexic prepared by Ms S.
In the assessment of Ms S, she makes certain recommendations to assist X to overcome his difficulty with reading. It is the father’s evidence that the mother rejects the diagnosis of dyslexia and further has only sporadically followed the recommendations of Ms S including the use of the green slide.
The father is also concerned about the mother’s failure to consult him in relation to interventions for X so that X has attended specialists and counselling without his knowledge and input.
It is the mother’s evidence that she is fully aware of X’s behavioural and learning difficulties, that she does not down play them and that she has and is appropriately addressing these difficulties.
It is the mother’s evidence that she is working closely with X’s schools, past and present, to address those difficulties.
It is the mother’s evidence that on the recommendation of Ms R, principal of (omitted) Primary School, she arranged for X to attend upon Ms L, psychologist. She is ensuring X’s regular attendance upon Ms L. Further, it is the mother’s evidence that she is following the recommendations of Ms L and accepts her advice in relation to X’s management.
It is the mother’s evidence in relation to X’s enuresis that it was she who organised X to attend upon an incontinence specialist and that she has followed that specialist’s recommendations.
It is the mother’s evidence that she has at all times been responsible for the financial burden of X’s attendance upon these various specialists and that any request from her to the father for assistance in the costs of these interventions has been met by a blanket refusal by the father to contribute.
It is the mother’s evidence that X has the appropriate routines and structures in her home and that she has in place the appropriate boundaries and structure in relation to his behaviours in the home environment.
It is the mother evidence that on the one occasion that she sought the father’s assistance with X following inappropriate behaviour at his former school (omitted) Primary School, the father was dismissive of her request and has raised her request for help in subsequent court proceedings as proof that she is unable to manage X’s behaviour.
It is the mother’s evidence that in recent months, X’s behaviour at school has started to settle and improve and that whilst X still continues to exhibit concerning behaviour within the school environment, there has been a marked improvement.
It is the mother’s evidence that X’s involvement in diving this year, which has seen him progress from the ranks of beginner to achieving state representation, has contributed greatly to X’s sense of self-esteem. The mother provided to the Court a letter from X’s diving coach which records a significant improvement in X’s behaviour within the diving group such that X has progressed from being oppositional and difficult to being able to represent his state in synchronised diving which requires him to work closely with a fellow competitor.
Ms R confirms the improvement in X’s behaviours, particularly in the last three months.
It is the evidence of Ms R that the mother is working closely and cooperatively with the school and with Ms L to implement all strategies to assist X in addressing his behavioural difficulties. It is Ms R’s evidence that she does not find the mother to be downplaying or failing to acknowledge the seriousness of the issues faced by X.
It is apparent from the mother’s evidence to the Court that she did at times downplay the extent of X’s difficulties, particularly where she did not agree with the diagnosis or suggestions made for X’s assistance.
It was quite clear from her evidence that the mother does not accept the diagnosis that X is dyslexic and that she has not considered the various suggestions made by Ms S to necessarily be of any real assistance to X. She has accordingly only paid a modicum of lip service to those suggestions.
It is of concern to the Court that X’s ongoing issues with enuresis have not been addressed in any real way by the mother for quite some time. It is the mother’s evidence that there was a referral to an incontinence specialist by X’s general practitioner given earlier this year but that she lost that referral and has not done anything to obtain a further referral or to make an appointment for X to see that specialist.
Whilst it is the mother’s evidence that in her household she chooses not to make a big deal of his enuresis, as X approaches the latter part of primary school this difficulty will become even more embarrassing for X and it is not appropriate that it continue to be ignored.
It is apparent from the father’s evidence that he has very little regard or respect for the mother in her capacity as X’s primary carer. He quite openly states that he thinks the mother is doing a “lousy job as a Mum”. Whilst the father is able to acknowledge that X can be a difficult child, he does not acknowledge that the lion’s share of the burden of parenting a child with behavioural problems has fallen on the mother’s shoulders as X’s primary carer since his birth.
It is the mother’s evidence that she has great difficulty in communicating with the father in relation to X’s care as he is dismissive of her suggestions and quite denigrating of her efforts for X. Given the tenor of the father’s evidence in relation to his beliefs as to the mother’s capabilities as a parent, the mother’s complaints in this regard must be seen to have real merit.

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

X’s behavioural and educational difficulties are well documented in this judgment.
It is Dr A’s strong recommendation that X would benefit from a psychological assessment by an experienced paediatric neuropsychologist in order to identify any underlying reasons for his difficulty with reading and his oppositional behaviour generally.
Fortunately, appointments have now been made for X to undergo such an assessment at (omitted) Medical Centre.
It is to be hoped that such an assessment will shed some light on the factors that are contributing X’s current difficulties and just as importantly, both his parents accept the assessment and follow diligently any recommendations contained therein to assist X into the future.

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;

This section 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

I am satisfied that both parties in this matter are loving, responsible and caring parents to X.
Up until late 2010, despite their interpersonal difficulties, X’s parents were able to cooperatively put in place living arrangements for X that allowed him to develop and maintain a meaningful relationship with both his parents.
The mother’s decision to relocate to (omitted) with X in the face of the father’s stringent opposition to such a move has placed the parties in overt conflict.
Since that time, X’s pre-existing learning and behavioural difficulties have been exacerbated and his behaviours at his new school, (omitted) Primary School, particularly in 2011, were extremely serious with incidences of threats of self harm, regular violence towards other students, refusal to take direction, refusal to stay in the classroom, daily abuse and inappropriate language towards teachers and other students.
Each of X’s parents place the blame for this deterioration squarely at the feet of the other. Rather than considering what they could do to adjust their own behaviours so as to assist X or, more importantly, working cooperatively to help X to address these issues, they have continued to expose X to their ongoing bitter conflict. This has been, and continues to be, to X’s serious detriment.
The father accuses the mother of doing a “lousy job” as a parent and is of the strong view that she is not able to acknowledge X’s difficulties and therefore put in place the necessary structures and interventions to help X move forward.
The mother places the responsibility for X’s difficulties on the father. The mother submits that the father’s failure to support the move to (omitted) and to assist X through the transition, but instead involve him in litigation, is at the root of X’s inability to settle in his new school and new environment.
In his viva voce evidence given to the Court at the final hearing, it is Dr A’s view that X’s behaviours in the last 18 months is in all probability a combination of all these factors; that is the move to a new school and environment, the father’s failure to support that move, this litigation and X’s exposure to the continued conflict between the parties.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

This section is not relevant.

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

This section is not relevant

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

As is noted in this judgment, until the mother’s move to (omitted) in January 2011, the parties had been able to agree on X’s living agreements between themselves without recourse to the Court.
X is a young boy who currently has behaviour, educational and health issues with which he needs assistance.
X will not receive that assistance through ongoing litigation between his parents. Rather that assistance will be achieved by his parents adopting a much more cooperative and unified approach to his parenting and not exposing X to their conflict and dislike of each other.
Accordingly, in this particular matter it will not be the orders this Court makes that will assist X but rather these parties placing the best interests of their son ahead of their intense dislike and distrust each of the other.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

Both parties agree that X is a child who struggles with change and for whom routine and consistency is very important.
It is the mother’s evidence that X does not cope when exposed to new situations or experiences without plenty of prior notice and the opportunity to prepare for the new experience.
The mother’s evidence that the cause of the deterioration in relation to X’s behavioural issues after moving to (omitted) and a new school was not at least in part caused by that change in his living and schooling circumstances is most surprising and is, it is suggested, somewhat self serving.
That the mother had very good reason for the move to (omitted) and that it has enabled her to secure her own home, the close proximity of her mother to lend her assistance in the care of her children and obtain ongoing secure employment does not detract from the reality that for X it has been the cause of enormous upheaval for him.
The mother also fails to acknowledge the impact on X of the change in the long-standing regular routine whereby he spent time with his father for four continuous days in each fortnight.
Fortunately, things seem to be somewhat improving for X in recent months. His school reports a measureable improvement in his behaviour. Ms R, the school principal, describes a boy who, whilst still having some serious difficulties and inappropriate behaviours at times, is much more often a delightful, cooperative, settled, happy and polite little boy rather than the disruptive violent and distressed young man of 2011.
X has also found an activity at which he appears to be excelling, being his diving, and this too seems to have assisted him in his self-esteem and is improving his behaviour.
The father was questioned as to how he believes X would respond if orders were made in the terms sought by him given the changes this would involve. X would move from the primary care of his mother, move away from his brother and much loved grandmother, would again change schools and have to adjust to the arrival of the father’s new child.
It is the father’s evidence that whilst this may cause some initial difficulties in X’s behaviours, he believes that X would manage that change reasonably well.
It is the father’s evidence that X has spent considerable time in his home and that he has a positive relationship with him, his partner Ms W and Ms W’s son Y. It is the father’s evidence that X would be returning to (omitted) Primary School, his former school where he has friends and thus it will not be a major change for X.
It is the father’s evidence that the arrival of the new baby will not be a major change for X. It is the father’s evidence that he will ensure that he continues to have the same time for both X and Y that he has always had.
The father’s evidence in this regard is, like the evidence of the mother, somewhat self serving and shows a lack of insight in relation to the difficulties that X will face in having to manage such a significant change in his living circumstances.
The father’s evidence also shows a lack of insight into the possible impact on the father and his household if he were to have the primary care of X.
Whilst X has spent significant and substantial time with the father, the father has never had X’s ongoing daily primary care; it has been and continues to be the mother who interacts with X’s school in relation to his behavioural and learning difficulties. It is the mother who organises the majority of X’s medical interventions and extracurricular activities. It is also the mother who bears the primary financial responsibilities for X’s medical costs and extracurricular activities.
The father does not acknowledge the impact that the arrival of a newborn will have on his household. Given that the parties were separated when X was born and that his stepson Y was already a toddler at the commencement of his relationship with Ms W, the father has never actually experienced the impact that a newborn child has on a household. In these circumstances, there is a level of naivety in the father’s evidence that he is not expecting the arrival of his new child to cause some disruptions in his current living arrangements.

Conclusion

X is a much loved 11-year old boy born as a result of a very brief relationship between his parents in 2000.
X’s parents separated before he was born and they have no shared experiences of parenting X.
Despite a limited capacity to communicate with each other and varying degrees of distrust, the parties were able to put in place by agreement living arrangement for X until the end of 2010.
Due to the breakdown of the mother’s subsequent relationship with Mr C, the father of her son Z now aged three, the mother found herself in strained financial circumstances such that she could no longer afford to rent in Melbourne and continue to pay the fees for X to attend (omitted) Primary School in (omitted). The mother made the decision to move to (omitted) where accommodation was cheaper and where her mother lived.
This relocation was strongly opposed by the father because of the impact it would have on the existing regular time he was spending with X.
Both parties are in agreement that X has always exhibited some behavioural difficulties as well as some learning difficulties, particularly in relation to reading and writing.
After relocating to (omitted) at the beginning of 2011, X’s behavioural difficulties and learning difficulties have become much worse.
In 2011 X’s behaviour at his new school (omitted) Primary School became unacceptable on every level. X was violent on a daily basis to other students, was threatening self harm, was abusive of teachers and students and refused to stay in the classroom, which required daily supervision by a teacher. X was placed in detention on a weekly basis and was suspended from school on no less than seven occasions.

X’s reading and writing standards are well below that of other student’s of his age, though he is otherwise a bright little boy.
At the recommendation of X’s school, the mother engaged the services of Ms L, psychologist, and X continues to see Ms L to this day. Ms L is working closely with both the mother and X’s school to implement strategies to assist X in better managing his behaviour.
It is the father’s evidence that X’s behavioural difficulties and learning difficulties are as a result of inept parenting by the mother and he accordingly seeks orders that X live with him. It is his submission that he is the parent best placed to address X’s issues and ensure that the appropriate interventions and strategies are put in place to enable X to reach his full potential.
The mother opposes the father’s application for change of residence and strenuously denies that she has not and is not able to properly address X’s issues. It is the mother’s evidence that she does not downplay or deny the seriousness of the problems faced by X. The mother argues that she has sought the appropriate interventions and has worked closely with X’s school and Ms L to assist X overcome his difficulties and move forward.
The mother argues that there has been a measurable improvement in X’s behaviours in recent times which reflects the hard work done by her, Ms L and the school to help X move forward.
The mother argues that to take X from her primary care, change his school, separate him from his brother Z and much loved grandmother and introduce him to the father’s household which will include a new baby from September this year cannot be seen as in X’s best interests, particularly given the impact on him of such extreme changes.
In the assessment and report prepared by Dr A he recommends that consideration be given to a change of residence for X from his mother to his father.
It is Dr A’s evidence that he bases that recommendation substantially on X’s stated wish to spend more time with his father and his wish to attend (omitted) College in Melbourne.
Dr A is however quite clear in his evidence that he is not making a recommendation for a change of residence but rather that the Court considers such a change, taking into account all other relevant factors.
It is clear from this case, that X has been severely impacted by the high level of conflict between his parents. X drew a picture of his family for Dr A which is both very sad and very chilling. In that picture X stands inside two lines in the middle of stick figures representing on the one side the mother, Z and the maternal grandmother and on the other side the father, Ms W and Y. Dr A notes this to be one of the most graphic depictions of isolation and division that he has seen in all the years he has conducted assessments of children in X’s circumstances
It is Dr A’s evidence that X’s picture shows the difficulty X would experience whichever of his parents he lives with. It is Dr A’s evidence that unless the parental conflict is lessened and the parties learn to work cooperatively for X into the future, his sense of isolation and division will increase.
Concerns are raised as to the mother downplaying the extent of X’s difficulties and in so doing her capacity to take the appropriate action and put in place the appropriate interventions to assist X in dealing with his on going difficulties.
Whilst there are aspects of the mother’s evidence that are of concern, and in particular the manner in which she is dealing with his enuresis and her rejection of his diagnosis of dyslexia, I am of the view that the mother is fully cognisant of X’s difficulties.
It is the evidence of Ms R, the principal of (omitted) Primary School, that in all her dealings with the mother, which have been plentiful in the last eighteen months, the mother has not shied away from the inappropriateness of X’s behaviours and is engaging appropriately with the school in their endeavours to address X’s behaviours.
There is also criticism levelled at the mother that X is allowed to ‘rule the roost’ within her household. This is in part understandable given she has the primary care for parenting a child with ongoing behavioural difficulties and at times it must be easier to take the path of less resistance. This however cannot be seen to be in X’s best interests, particularly as he approaches adolescence.
Both parents are in agreement that there has been a measurable improvement in X’s behaviour in recent months. This is confirmed by Ms R, the principal of X’s school.
It is also conceded that there is a long way to go to address all of X’s difficulties and fortunately, X will undergo a paediatric neuropsychological assessment at (omitted) Medical Centre in August 2012.
The father’s evidence that the impact on X of a change to his residence will be minimal is not accepted by me. A change of principal residence away from his lifetime primary carer, his much loved grandmother and little brother, a change of school, albeit to a school he previously attended and the arrival of a new sibling will have enormous impact on X, particularly given the difficulties he has with coping with change.
The father’s capacity to manage X’s behaviours as his primary carer is untested. The impact on the father’s partner and stepson in the event X were to have difficulties in adjusting to his changed living arrangements was also not something that the father appeared to have considered.
X expresses a wish to be able to spend more time with his father. I do not accept however that this translates into a wish to change residence. It is, I suggest, reflective of X’s unhappiness in the reduction in the block of time he is able to spend with his father as a result of the geographical distance between his now home and that of his father.
Having considered all the evidence in this difficult and complex matter, I am satisfied that on balance it is in X’s best interest that he continue to live with his mother and that the existing arrangements for him to spend time with his father remain in place.
However, unless there is a marked change in the manner in which X’s parents interact with each other and they shield X from this conflict, it will make little difference to X which of his parents he lives with.
The father properly complains that the mother does not consult him in relation to decisions for educational and medical interventions for X. The mother properly complains that such communication is not easy because the father is dismissive of her proposals in relation to interventions for X and of her parenting capacity generally.
The parties have asked this Court that they have equal shared parental responsibility for X. Such an order will be made. That order however is of no efficacy unless both the father and the mother put aside their dislike and distrust of each other and accept that if X’s educational and behavioural issues are to be addressed then they must both communicate civilly and cooperatively and they must both be involved in the decisions relating to the appropriate interventions for X. Once those interventions have been decided, they must both commit to implementing those recommendations consistently across both of their households. If the parties to these proceedings are unable to do this then X’s future well-being will be placed in real jeopardy.

I certify that the preceding two hundred and sixty-seven (267) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 11 September 2012