Toby and Chapwell

[2007] FamCA 1145

FAMILY COURT OF AUSTRALIA

TOBY & CHAPWELL [2007] FamCA 1145

FAMILY LAW – CHILDREN - With whom a child lives - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT: MR TOBY

RESPONDENT: MS CHAPWELL

FILE NUMBER: MLF 2022 of 2005

DATE DELIVERED: 14 SEPTEMBER 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: DESSAU J

HEARING DATE: 7 & 8 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MS STEWART

SOLICITOR FOR THE RESPONDENT: KENNA TEASDALE LAWYERS

Orders

1.That all previous orders in relation to the child … born … May 2003 shall be and are hereby discharged.

2.That the parties shall have equal shared responsibility for the child.

3.That the child shall live with the mother.

4.That subject to paragraph 5 of these orders the child shall spend time with the father as follows:

(a)(i)Until the start of first term in 2008, during school terms each alternate week from 6.00pm Friday until 45 minutes before the commencement of kindergarten/school Monday, or Tuesday if the Monday is a public holiday (unless the father advises the mother by SMS message by the previous Thursday evening that he intends to take the child directly to kindergarten/school), to commence on 14 September 2007;

(a)(ii)From the start of first term in 2008, during school terms each alternate week from 6.00pm Thursday until 45 minutes before the commencement of kindergarten/school Monday, or Tuesday if the Monday is a public holiday (unless the father advises the mother by SMS message by the previous Thursday evening that he intends to take the child directly to kindergarten/school);

(b)During school terms each other week from 6.00pm Thursday until the commencement of kindergarten/school Friday morning (unless the father advises the mother by SMS message by the previous Monday evening that he intends to take the child directly to kindergarten/school) to commence on 20 September 2007;

(c)During Victorian Gazetted school term holidays as follows:

(i)     In September 2007 for five nights as agreed and failing agreement from 6.00pm on the first day to 6.00pm on the sixth day,  the dates to be notified by the father to the mother in writing within 7 days;

(ii)    In 2008 for six nights as agreed and failing agreement from 6.00pm on the first day to 6.00pm on the seventh day, the dates to be notified by the father to the mother in writing at least 28 days in advance;

(iii)     In 2009 and thereafter for one half at times to be agreed and failing agreement the father to nominate which half at the commencement of each school year.

(d)During the Victorian Gazetted summer holidays and subject to paragraphs 4(e) and 4(f) of these orders, as follows:

(i)     For five nights in each fortnight in the 2007/2008 holidays to include the period between Christmas and New Year;

(ii)    For six nights in each fortnight in the 2008/2009 holidays not to include the period between Christmas and New Year;

(iii)     Thereafter for one half of the long summer holidays to include the period between Christmas and New Year in each alternate year.

(e)In 2007 and in each alternate year thereafter from 3.00pm on Christmas Eve until 3.00pm on Christmas Day, the father to collect the child at the start and the mother to collect her at the conclusion;

(f)In 2008 and in each alternate year thereafter from 3.00pm on Christmas Day until 3.00pm on Boxing Day, the father to collect the child at the start and the mother to collect her at the conclusion;

(g)In the event that Father’s Day falls on a week-end when the child would not otherwise be spending time with the father, from 6.00pm on Father’s Day eve until 6.00pm on Father’s Day;

(h)Reasonable telephone communication at times agreed;

(i)At such further or other times as may be agreed between the parents from time to time.

5.That the time the father spends with the child shall be suspended as follows:

(a)    In the event that Mother’s Day falls on a week-end when the child would otherwise be spending time with the father, from 6.00pm on Mother’s Day eve;

(b)    From 10.00am Easter Sunday until 5.00pm Easter Monday in 2008 and in each alternate year thereafter;

(c)    At such further or other times as may be agreed.

6.That in order to facilitate the father spending time with the child, change-overs which do not take place to and from kindergarten or school shall take place by the mother or her nominee delivering the child to the father’s residence at the start and the father or his nominee delivering the child to the mother’s residence at the conclusion and the delivering parent shall advise the other of their arrival by SMS message.

7.That each of the parents shall advise and keep the other advised of their current residential addresses and telephone numbers (landline and mobile numbers).

8.That each of the parents shall do all such acts and things and sign all such documents as may be necessary to:

(a)    Authorise the child’s school and kindergarten to forward to the other (at the recipient’s expense) copies of all reports, photographs, certificates, achievement awards and like academic memorabilia;

(b)    Advise and keep the other advised of any serious and/or significant health issue experienced by the child during periods she is in their respective care;

(c)    Advise and keep the other advised of the child’s medical and treating health professionals from time to time.

9.That the father and the mother shall each do all such acts and things and sign all such documents as may be necessary to maintain the child’s enrolment at R Pre-School in 2007 and 2008 and to have her enrolled at S Primary School for the commencement of the 2009 academic year.

10.That each of the parents shall do all such acts and things and sign all such documents to allow a passport to issue for the child and, save as is otherwise provided for in these orders, neither party shall remove her from the Commonwealth of Australia without first obtaining the consent in writing of the other parent.

11.That the mother shall be permitted to take the child on holiday to France in 2008 (for up to four weeks) and the father’s time spent with the child shall be suspended for that period provided that:

(a)    The mother provides the father with at least 28 days notice in writing of the times and particulars of the proposes travel (including itineraries and contact telephone numbers and return air tickets for herself and the child,);

(b)    The father has equivalent make up time with the child divided before and after trip, at times agreed by the parents;

(c)    The father has regular telephone calls with the child during her travel.

12.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13.That all parenting applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation in the court.

14.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

THE COURT NOTES

1.That save for illness or other bona fide reason, the father will ensure that the child attends scheduled kindergarten/school days during periods the child is in his care.

2.That in the event the father desires a block of travel with the child, similar to the mother’s travel referred to in paragraph 11 of these orders, the mother, upon receiving appropriate notice and particulars, will not unreasonably withhold her consent.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as TOBY & CHAPWELL

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2022  of 2005

MR TOBY

Applicant

And

MS CHAPWELL

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.Mr Toby and Ms Chapwell agree that their four-year-old daughter will at the very least spend substantial and significant time with her father, but they cannot agree on the actual arrangements. 

2.The father wants week-about shared care so that the child has the benefit of equal exposure to both her parents.  The mother says that equal shared care will be unsettling and unstable for the child in light of her age and sensitivity to change.  She also says that, given the father’s and his current wife Mrs Toby’s negative attitude towards her parenting, and the difficulties in communication between the parents, equal shared care will not promote the child’s best interests. 

3.Since the release of the Family Report, with its recommendation that emphasised the need for gradual changes for the child, and opposed equal shared care, the father has suggested a more gradual increase in the child’s time with him, but still to arrive at equal time by the time she starts school in 2009 “or about six months before then”.

4.The parents have also asked me to make a decision in relation to the school to be selected for the child.

BACKGROUND

5.The father is a 36-year-old engineer.  The mother is 32 and works part-time, freelance.  They started to live together in 1998 and married in late-2002.  The child was born in May 2003.  She was only two years’ eight months’ when her parents separated in January 2005.  Since then she has continued to live with her mother.  She has spent regular times with her father, who has been committed to an active role in her day-to-day life.  The mother is very complimentary of the father as a father and readily acknowledges his importance to the child. 

6.The parties have different perspectives as to how well the arrangements have worked since separation, and who is to blame for any issues or obstacles along the way.  I will explore all that in detail below. 

7.The current orders of 28 August 2006 provide for the child to be with her father each alternate week-end from Friday to Sunday and on the intervening Wednesday to Thursday.  Since late 2006, by the parents’ agreement, the child has spent a night longer with her father on alternate week-ends (from Friday to Monday) instead of the night on alternate Wednesdays.

MATERIAL RELIED UPON AND ORDERS SOUGHT

8.The father relies upon:

·His application for final orders filed 10 November 2005

·His affidavit filed 13 June 2007

·The affidavit of Mrs Toby filed 13 August 2007.

9.A very difficult predicament arose for the father on the second day of the hearing.  His wife Mrs Toby simply refused to come to court.  Counsel for the mother adopted a reasonable course.  She did not ask for Mrs Toby’s affidavit to be withdrawn, but correctly submitted that the weight I can attach to it is greatly reduced by Mrs Toby’s failure to present for cross-examination.  In any event, her failure to attend to support her husband in his quest for equal shared care of the child is something I must consider in detail below.  Her stance made it very difficult for him.  He was left in a position of having to cope with her decision, in addition to his self-representation.  I gave him time to collect himself and his thoughts as these events were unfolding, and to his credit, he conducted himself calmly and politely in difficult circumstances.  He is an intelligent man and focussed well on the issues before me.

10.The mother relied upon her Form 1A response filed 1 May 2007 and her affidavit filed 13 June 2007.

11.The Family Report writer, Ms E, was the court’s witness.  Although the mother fully supported Ms E’s recommendations and her counsel did not require her for cross-examination, I still required her to be called.  I took the view that it was preferable for the father to have the report writer available, without having to make the difficult decision as to whether or not he needed to cross-examine her.  In light of the way events did unfold, it was helpful for me to have access to her updated evidence.

12.The father proposes that for the next 12 to 18 months, the child should be with him from Thursday to Monday in one week, and from Thursday to Friday in the other week, as well as part of school holidays.  He suggests that in 2008 the holiday time should increase, and by mid to late 2008, the child should spend equal time in each home. 

13.The mother proposes that for about the next 12 months the child should be with her father from Friday to Monday in one week and from Friday to Saturday lunchtime the following week.  She suggests that from the start of Term 3 in 2008 the alternate week-end should be extended to be from Thursday to Monday.  She also proposes gradually increasing school holiday periods to arrive at half when the child starts school in 2009.

14.The mother wants the child to attend S Primary School.  The father has nothing against the particular school, except its location.  It is 15 minutes by car beyond the mother’s home, and therefore a substantial distance from his home.

RELEVANT LEGAL PRINCIPLES

15.Part VII of the Family Law Act1975 was amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act.  Section 60B(1) sets out the objects of Part VII of the Act, to ensure 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.”

16.Section 60B(2) sets out the principles underlying those objects.  They 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).”

17.In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA).  Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests.  I will return to the detail below.  Section 60CC(4) provides that 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 the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).

18.There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA).  The presumption relates to the allocation of parental responsibility.  It does not relate to the time the child spends with each parent.  In this case it is agreed that the parents will continue to have equal shared parental responsibility.

19.The court is then required to consider whether it would be in the child’s best interests to spend equal time with each parent (s 65DAA (1)(a)), and whether it is reasonably practicable (s 65DAA (1)(b)), before considering an order for equal time (s 65DAA (1)(c)). 

20.If the court does not make an order for equal time, it must consider whether it would be in the child’s best interests to spend substantial and significant time with each parent (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d) ), and then consider an order for substantial and significant time (s 65DAA (2)(e)).  “Substantial and significant time” is defined in s 65DAA(3).

21.Section 65DAA(5) deals with “reasonable practicability”.  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.”

22.At the start of the case I arranged for a copy of the relevant sections to be handed to the father.

THE ISSUES

23.In this case the issues can best be considered under the list of s 60CC considerations. 

24.I must deal first with the primary considerations under s 60CC(2).

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

25.It is agreed that the child will benefit from a meaningful relationship with both her parents.  Although the father complains that the mother has not always promoted a meaningful relationship, the reality is that the child does have a solid and loving relationship with both her parents.  Her mother has been her primary care-giver from birth and there is a natural attachment between them.  However her attachment to her father is also strong and the mother has not sought to cast any doubt upon that.  Whatever orders I arrive at must ensure that the meaningful relationships continue.  Each parent’s capacity to promote them is an important consideration.

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

26.It is agreed that there are no current issues in this regard.  In the latter part of 2005 the parents were concerned that the child had made some inappropriate sexual comments, to the effect of “eating penises”. 

27.The parents have different temperaments and dispositions and although the father was concerned, the mother worried more, particularly as at that time she was also experiencing some behavioural difficulties with the child.  The father says that the mother over-reacted.  In my view the mother behaved well within reasonable bounds.  She sought expert advice.  Once the issue was investigated and she was reassured there was no need to worry, she relaxed and the issue was not pursued. 

28.In the meantime there was some unfortunate fall-out.  At the time of the comments the father was living in a two-bedroom property with his new partner and her three children.  Apparently the three children and the child were sharing one double bed.  The mother became concerned that something might have occurred between Mrs Toby’s four-year-old son and the child.  Given the inadequate sleeping arrangements, the newness of the arrangements, the fact that at the time the mother knew little of Mrs Toby, and that she did not know the children, her concerns were understandable.  Unfortunately, Mrs Toby seems to be bitter, and harbours a grievance that the allegation was raised with one of her children briefly “under a cloud”.  She is extremely critical of the mother, but I will return to that.

29.I must now turn to the additional considerations.

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

30.The child was not asked her views as such.  She is too young.  In any event, her mother readily agrees that the child loves her father and wants to spend time with him.  Although the father is not as fulsome in his praise of the mother, his proposal of a shared care arrangement suggests that he has no concern that the child is other than happy spending significant periods of time with her mother.

(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);

(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:

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

31.Although the mother fully endorses the father’s parenting capacity, she is critical of him for criticising her in the child’s presence, and for lacking insight into the child’s needs when it comes to deciding the arrangements best suited for her age and temperament. 

32.There is no doubt that the father has negative views about the mother’s parenting.  He was extremely critical of the mother for being over-protective of the child.  As noted, I am satisfied that although she tends to a more precious side of parenting than he does, she has not been poor in her parenting.  To the contrary, given the challenges of being a first-time parent and rearing a toddler whilst in the throes of separation, coupled with the small problems that she encountered with the child’s behaviour, her concerns have been reasonable.  So has her conduct.  She has properly sought and responded to help.  The fact that the child is a gorgeous child who adores both her parents is the best testament to her parenting.  That is not to take anything from the father, upon whom it also reflects well.

33.The Family Report writer noted Mrs Toby’s negative view of the mother’s parenting.  The father tried to suggest that Ms E had misunderstood what his wife was saying in the course of the interview.  But Ms E’s opinion is supported by other evidence. 

34.In September 2006, an issue over a contact change-over (at which the mother was not even present), prompted Mrs Toby to text the mother saying that she was a “disgrace to parenthood”.  That painted a clear picture to me.  So did an email sent on 17 March 2007, in which Mrs Toby raised the issue of night-time toilet-training for the child in what she purported to be a co-operative manner.  But her email contained a substantial barb to the mother, when she wrote “…I understand that you have required assistance with other parenting issues in the past…”  It gave her away.  Rather than being genuinely co-operative for the child’s sake, she was scoring a cheap shot against the child’s mother.

35.Mrs Toby’s critical assessment of the mother’s parenting permeates her June 2007 affidavit.  Interestingly, at paragraph 15, Mrs Toby criticises the mother for being “particularly dismissive” of her advice in the email I have just noted.  Her affidavit does not tell the full story.  If the mother was dismissive, it was understandable in the circumstances.

36.Against that backdrop I accept the mother’s evidence that the child often returns from her father’s with comments suggesting she has heard direct or indirect criticisms of her mothering.  For example, apropos the recent night nappy issue, clearly a fraught one from the March emails I have seen, the child came home to her mother with a suggestion that she, the child, could buy a plastic under-sheet (as used on her bed at the Toby household) for her mother, “as a Mother’s Day present.”  A four-year-old child is unlikely to arrive at that suggestion – again a barb to the mother – without inappropriate exposure to the conflict when with Mr and Mrs Toby.

37.Not only are the Tobys very critical of the child’s mother, but I note that Mrs Toby went as far as to tell Ms E that she did not believe a week-about arrangement was appropriate.  Her view was that the child should live with her and her husband full-time.  Although Ms E was challenged by the father as to whether her notes were correct in that regard, I accept Ms E’s evidence that these were important matters that she noted carefully.

38.I am satisfied that in stark contrast to the Tobys’ attitude towards her, the mother is positive about the father’s parenting, and accepting of Mrs Toby’s role, for example accepting that the child calls her “mum” when she is there.  She said she was happy that the child felt that level of comfort.  I am satisfied too that she is genuine in her appreciation of the father’s role in the child’s life.  At one point in evidence she referred to her description to the child that she is “half me and half her dad”, an open and sensitive approach of respect for both her parents.  She readily described the father as “a great father”, as having a “great heart”, and was easy about acknowledging that in his home the child also seemed to enjoy Mrs Toby and her three children.  And recently, to overcome the child’s upset at the start of her fortnightly time with her father, she proposed an earlier start time.  That is, she proposed more time with the father, not less, suggesting that if there were an earlier change-over, the child might be less tired and more robust.  That was sensible and generous. 

39.The mother worries that the father lacks insight in wanting to push the child’s time with him to an extension beyond the child’s capacity.  Her concern is supported by the expert evidence. 

40.The father spoke to Ms E about “short-term pain for long-term gain”, saying that although for some months it would be difficult for the child to spend half her time in his household, she would “get used to it”.  I do not believe he is motivated by anything except his love for the child, and a genuine commitment to being involved in her upbringing.  Overall he is a caring and insightful father, but in this respect he appears to be blinded by his own needs, not the child’s. 

41.The father has not been sufficiently open to the need to arrange things in a way that suits the child’s needs, particularly in light of what Mr V told the parties as to her vulnerabilities and sensitivities to change, when he was involved in counselling the family in late 2005, and in light of Ms E’s more recent observations.  I note Ms E’s evidence that the father seemed unaware of the different developmental stage of the child at her age and Mrs Toby’s older children, and the needs of an only child compared with Mrs Toby’s group of three.  Although at the start of the hearing the father did change his proposal so that the equal shared care would be phased in, he seemed to do that more as a way of dealing with the “negative” report than truly understanding the need for slow progress.

42.In the course of the hearing, a concern as to the stability of the father’s marriage became a pertinent issue.  It is important in assessing the suitability of a shared care arrangement.  It seems that Mr and Mrs Toby are experiencing marital problems. 

43.Just under twelve months ago the police took out an intervention order for Mrs Toby against the father.  He said that she did not want it.  I cannot make a definite finding about that.  Anyway, the father denies on-going problems, saying that with the stresses of losing a baby (it seems that some time ago Mrs Toby had a miscarriage but he did not expand on that), the rigours of a blended family, and financial pressures, they had some difficulties, but after counselling they were now back on track. 

44.It is a concern that the father could not persuade Mrs Toby to come to give evidence.  She waited at court during the first day while he was giving evidence.  I accept that waiting at court can be stressful, but his account that she refused to return to give evidence because she was “too distressed” and “felt vilified” made no sense at all.  He was the one enduring cross-examination and the full brunt of a court-case without a lawyer.  It is self-evident that he needed his wife’s support and her failure to appreciate that, and her failure to support him and his case, suggest troubling issues between them.  I cannot accept the father’s evidence that they have overcome relationship problems.

45.Mrs Toby’s refusal to give evidence means that I cannot assess her attitude to the child, and to her husband’s case.  I am concerned that she was not prepared to be cross-examined.  I am concerned that she could not appreciate that the mother, as a caring mother, would want to have the reassurance of Mrs Toby’s willingness to care for her child on a substantial basis.  I am concerned that she apparently put her own feelings ahead of the child’s needs.  In circumstances where her husband is seeking to share equally in the care of his child, and she would be a main care-giver, it is astonishing that she would refuse to come to court.

46.I am also concerned that, as noted above, when the parents recently decided to trial the child going to her father’s at 4.30pm on a Friday instead of at 6.00pm, the arrangement did not last, primarily because Mrs Toby found it inconvenient.  In fairness, she does have three other children to organise, but I was not told of a particular clash with any specific arrangements, just that she found it “inconvenient”.  Given that the father has generously taken her three children into his home and his heart, that he bears financial responsibility for them for a lot of the time, and he treats them as his own, it is troubling that Mrs Toby was not able to assist in this small way to facilitate a better change-over for the child just once per fortnight. 

(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;

47.I have largely considered this aspect above.  Although much of the evidence centred upon each parent’s capacity to promote the child’s relationship with the other parent, I cannot lose sight of the fact that the child adores both her parents.  Overall, they are getting things right in this regard.  Still, the father is critical of the mother, suggesting that since soon after separation she has tried to slow down the progress in his time with the child. 

48.The father’s criticisms were unfair.  The mother has genuinely tried to respond to the child’s needs.  At the end of 2005, when there was the concern about the child’s inappropriate sexual comments, she sought some safeguards and constraints.  She was never opportunistic in suggesting that the father was in any way a risk to their daughter.  She raised a concern about Mrs Toby’s son and sought some temporary restraints.  They were reasonable in the circumstances.  She did not pursue them once Mr V was involved and able to assure her and the father that it did not seem that there had been any sexual abuse or interference. 

49.I am satisfied that despite criticisms by Mr and Mrs Toby that the mother breast-fed the child for too long, or allowed her to share her bed, she was doing the best she could with the toddler, and in no way trying to interrupt her relationship with her father.  The proof is in the child’s firm relationship with him.  And although I have not heard Mr V cross-examined, his reports in late 2005 and early 2006 also made it clear that the child’s time away from her mother needed to increase gradually, and with sensitivity to her needs, given her temperament and the changes she had experienced.  He assisted the mother with skills to handle the child’s challenging behaviour at the time but was not critical of her efforts or her willingness to take advice.

50.I am satisfied that of the two parents the mother has the better capacity to encourage the child’s relationship with the other parent.  As I have noted, she found it very easy to make concessions in the father’s and Mrs Toby’s favour.  Those ready concessions support a finding that she is not trying to undermine the father’s relationship with the child.

51.The father emphasised that he and his current wife are able to make shared care work with Mrs Toby’s former partner.  It was implicit that it should be able to work with the mother, if only she acted reasonably.  First, I note they have a different arrangement from that proposed in this case.  Mrs Toby’s children spend significantly more time with Mrs Toby than with her husband.  They are with her for one out of two weeks, but in the other week, she collects them from school and keeps them each day until dinner time.  In any event, the fact that it works for that family does not necessarily mean it will work for this family.  The level of co-operation, and the geography seem to favour that regime.  The father has for example moved house, living just a few streets from Mrs Toby’s former husband.  He has moved further away from the mother.  The co-operation between Mrs Toby and her former husband may be more feasible than in this case, given the geographical distance now between the father and the mother, and the difficulties in their communication.  They use email and SMS but have not succeeded in any long-term civil discussion.

(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;

52.The mother is concerned about the effect on the child if her circumstances change too quickly and/or if she is in a household that may be unstable, or where her mother is the subject of criticism.  The father’s attitude is that things need to move more quickly.  The mother’s attitude is supported by the Family Report.  I have discussed this aspect in more detail above. 

(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;

53.This factor has some relevance in that the mother is buying a unit in H.  When she chose to move there, the father was living within reasonably close proximity.  He has since moved about an hour away, to rented premises in F.  He says that he and his wife propose remaining in the F area.  They chose it to enable Mrs Toby’s eldest daughter, and ultimately her other children, to live within the zoning of a particular school, and it is convenient that their property is only a few streets away from the children’s father.

54.The distance between the homes means that there is some driving to be done.  Overall, that appears to have been conducted successfully by the parents.  But the issue of distance is relevant when it comes to the child’s schooling.

55.There does not seem to be any disagreement with the mother’s version that the parents always intended the child would attend a R school.  She is now at a R kindergarten, with the hope that it will lead into a R program at the local school.  It is not certain that the local school will have enough children to run the program but they are hoping they will by the time the child starts in 2009.

56.The father is aggrieved that the mother did not involve him in her decision-making about the selection of school.  She agrees that she told him just before the child was starting, instead of earlier, saying they had always agreed to a R education and this was the closest such kindergarten.  There is no question she should have involved the father in the decision before it was taken.  It is not surprising that he is unhappy about the location, because it is 15 minutes beyond her home, further from his.   

57.The consideration of distance and practicality will feature when I come to decide the regime that I find is in the child’s best interests and the school that she should attend.

(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;

58.The child was only tiny when her parents separated.  That combined with her own make-up, on-going issues between her parents, and difficulties in their communication, are all factors that I must consider in determining the best course for her. 

(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;

59.This consideration is not relevant.

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

(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;

60.These matters are not relevant.

(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;

61.I am sympathetic to the parents that they have litigated in the court for two years and they would like to make long-term orders for the child, to avoid going through that process again.  Still, it is difficult to project too far into the future.  The child is very young.  There will be changes by virtue of her maturation, and from circumstances both foreseen and unforeseen.  I hope the orders I make will give certainty but I cannot guess at what will be right forever.  The parties must learn to communicate to navigate the various issues that will inevitably arise.

CONCLUSION

62.I am not satisfied that it is in the child’s best interests to live half-time in each household.  The Family Report writer’s expert opinion was that there should not be a shared care arrangement.  She was concerned that the parents could not communicate in the way that would be needed for that arrangement to work in the child’s favour, she was concerned about the father’s insight in relation to the child’s needs, and concerned about the attitudes towards the mother in the father’s household.  I accept her expert opinion.  Mr V, whose reports I received only by way of background, referred to the child’s needs as a young child, a sensitive child, and one who had experienced significant changes in her early life.  That was confirmed by Ms E.

63.The concerns are compounded by Mrs Toby’s attitude.  I have not had the opportunity to hear her cross-examined.  I cannot be satisfied either of sufficient stability in the father’s household to make orders that the child should live there for half of the time, or of Mrs Toby’s commitment and willingness to assist on that basis.  I feel very sorry for Mr Toby that he was let down by her and put in a difficult position in the course of representing himself in this case.  He acted with decorum and loyalty towards her, although his pain and upset were evident.

64.I agree with the parents that it is essential that the child continue to have a substantial and significant time with her father.  She adores him and she craves it.  He has a great deal to contribute to her.  It is only the configuration of the time that I need to decide. 

65.The mother agrees with the Family Report writer that for now the child should be with her father each alternate week-end from Friday to Monday and on each other Friday night (provided she can occasionally have a week-end away or an uninterrupted week-end with the child).  The father wants the alternate week-ends to start instead on Thursday, and for the intervening night to be Thursday instead of Friday.

66.As best I can tell, the current alternate week-end Friday to Monday arrangement was only commenced by the parties in the last four to six months.  In light of the expert evidence, I do not propose extending that time immediately.  Three nights in a row are currently appropriate in light of the child’s developmental needs.  The arrangement enables her to spend a substantial block of time in her father’s household.  It is premature to make the time longer, particularly in light of the concerns surrounding Mrs Toby’s current attitude. 

67.Ms E recommended that the child spend the intervening Friday to Saturday with her father.  That way the child could have time alone with her father, without the other three children demanding his attention.  The mother agrees, adding that it is preferable for the child to have that time with her father than Thursday to Friday when he is working and she is at kindergarten.  The father is adamant that he would prefer mid-week time, in order to undertake the routine of feeding, bed-time, and so on. 

68.I gained the impression that it is probably important to the father for the child to be with his family at the same time as the other children, leaving him and Mrs Toby free in between.  He denied that.  In my view it would be a reasonable position, and necessary, particularly in the light of the obvious stresses in this blended family.  I propose acceding to his request for the time he spends with the child in the intervening week to be on Thursday night.  I am satisfied in the complex circumstances of the various pressures on the father, if this suits him better, overall it will best promote the child’s interests.

69.That leaves me to consider the arrangements at the start and at the end of the times the child will spend with her father.  The mother has been genuinely concerned that the 6.00pm start finds the child tired and out of sorts after returning from kindergarten, settling at home, and then having to travel to F.  I am sympathetic, and admiring of the proposals she has made to avoid it.  But on balance I conclude that the start time of 6.00pm should remain.  The father’s job is important given the responsibilities he has to his family, including the child, and for the most part he cannot be home any earlier.  Mrs Toby has not been able to facilitate an earlier starting time.  It is better for the child that I arrive at orders that protect her from being delivered into a stressful situation.  I am afraid that is the risk if I make the time earlier than suits Mrs Toby, who is likely to be the one there to greet her.  In any event, the child’s capacity to cope with the 6.00pm start should keep improving. 

70.The parents have been co-operative about morning drop-offs.  For the father to get to work on time, he needs to drop the child at her mother’s rather than directly at kindergarten.  To her credit, the mother has and will accommodate that, and she arranges her own work around it.  I propose the arrangement should continue, unless the father advises the mother within a specified time that he is able to take the child directly to kindergarten or school.  I say that because he indicated that he may be able to arrange some flexibility at work.  Obviously if he can, it is to the child’s benefit to have her father’s connection with her place of learning.

71.The mother’s proposal is to drop mid-week contact and extend the alternate week-ends to start on a Thursday, from Term 3 next year.  I have already observed that the father is wanting to rush things by having the longer week-ends extended to four nights right now, but the extension does not need to be pushed back as far as suggested by the mother.  It would be appropriate from the start of the 2008 kindergarten year.  By then the child will have been spending three nights’ block time in her father’s home for close to a year, she will have had extended periods of holiday time with him, and should be ready and comfortable to spend that longer time away from her mother. 

72.Even once the alternate week-ends are extended, I see no reason to curtail the arrangement of one night in between.  It is important for the child not to have long gaps without seeing her father.  She will be in the routine of having the intervening Thursday nights with him and that should continue.  It enables them to remain involved in the minutiae of each other’s lives and for him to be involved in kindergarten and school routines.  In his final submissions the father seemed to say that eventually that night in between might not be appropriate.  At this point, doing the best that I can, I propose maintaining the regime.  If the parties agree to change it at some time in the future, that course is open to them.

73.There was ultimately a consensus about school holidays and I will reflect the discussion in court in the orders I make.  It will result in gradually increasing holiday periods so that by the time the child starts school she will spend half her school holidays in each parent’s home. 

74.As to the child’s school, I have already noted that it is a pity that the parties have communicated so poorly, and that the mother did not discuss the choice with the father before presenting him with what was a “fait accompli”.  That said, the father has absolutely no criticism of the current kindergarten.  It is the closest one that follows the R philosophy, to which both parents were attracted, and he acknowledges that the child is happy and settled. 

75.I have found this a difficult issue.  My strong preference would be for the child’s school to be 15 minutes closer to the father rather than 15 minutes further away.  That said, it would not be reasonable to choose a school that is half-way between the parents.  The child would be left without a local school community and friendship group, and although the father had initially suggested a school between their homes, he did seem to understand the dilemma when I raised it with him.  On any view, the father lives some distance from where the child will attend kindergarten and school.  He moved further away from the mother to accommodate his current wife’s children’s schooling.  That is entirely understandable but it means that I must arrive at orders doing the best I can in the difficult circumstances of an hour’s travel between these two households. 

76.I conclude that the child should remain at her current kindergarten and the school as proposed.  The fact that she is happy and settled is particularly important for a child who has undergone substantial change at such an early time in her life and with the vulnerabilities that have been referred to.  Some children make changes easily.  Others have a particular need for structure and stability.  It seems that the child currently falls into the second category.  That coupled with the fact that there will be geographical problems whichever school she attends, and the fact that her father agrees that her current program is a good one, helps me conclude that on balance she should remain where she is and continue on to the S Primary School as planned.

77.I will order that the father drop the child at her mother’s home on the days that he has the child on a kindergarten or school morning, but if he wants to take her directly to school, with adequate notice to her mother, he can do so.  I expect the mother will be comfortable with that.  She has readily accommodated his work needs this far.  I hope that the parents may be able to arrive at an arrangement whereby the father is able to drop the child at and/or collect her from kindergarten or school so that he can have that connection.  He is an interested and involved father and I have absolutely no doubt that he will make what efforts he can for that to occur.

78.I hope too that with the rigours of this litigation put to one side, that the pressures may be eased in the father’s relationship with his current wife, that the parents might feel themselves able to start moving towards at least workable communication, and that the child will have the opportunity that she deserves to simply enjoy the love, the guidance, and the fun of her two doting parents.

THE ORDERS

79.Some of the detail of the orders was agreed in the course of final submissions.  There are some small details that may still require fine-tuning.  The orders I propose, subject to any submissions as to form, are as follows:

1.That all previous orders in relation to the child shall be and are hereby discharged.

2.That the parties shall have equal shared responsibility for the child.

3.That the child shall live with the mother.

4.That subject to paragraph 5 of these orders the child shall spend time with the father as follows:

(a)(i)Until the start of first term in 2008, during school terms each alternate week from 6.00pm Friday until 45 minutes before the commencement of kindergarten/school Monday, or Tuesday if the Monday is a public holiday (unless the father advises the mother by SMS message by the previous Thursday evening that he intents to take the child directly to kindergarten/school), to commence on 21 September 2007;

(ii)From the start of first term in 2008, during school terms each alternate week from 6.00pm Thursday until 45 minutes before the commencement of kindergarten/school Monday, or Tuesday if the Monday is a public holiday (unless the father advises the mother by SMS message by the previous Thursday evening that he intents to take the child directly to kindergarten/school);

(b)    During school terms each other week from 6.00pm Thursday until the commencement of kindergarten/school Friday morning (unless the father advises the mother by SMS message by the previous Monday evening that he intends to take the child directly to kindergarten/school) to commence on 27 September 2007;

(c)    During Victorian Gazetted school term holidays as follows:

(i)In September 2007 for five nights as agreed and failing agreement from 6.00pm on the first day to 6.00pm on the sixth day,  the dates to be notified by the father to the mother in writing at least 28 days in advance;

(ii)In 2008 for six nights as agreed and failing agreement from 6.00pm on the first day to 6.00pm on the seventh day, the dates to be notified by the father to the mother in writing at least 28 days in advance;

(iii)In 2009 and thereafter for one half at times to be agreed and failing agreement the father to nominate which half at the commencement of each school year.

(d)    During the Victorian Gazetted summer holidays and subject to paragraphs 4(e) and 4(f) of these orders, as follows:

(i)For five nights in each fortnight in the 2007/2008 holidays to include the period between Christmas and New Year;

(ii)For six nights in each fortnight in the 2008/2009 holidays not to include the period between Christmas and New Year;

(iii)Thereafter for one half of the long summer holidays to include the period between Christmas and New Year in each alternate year.

(e)    In 2007 and in each alternate year thereafter from 3.00pm on Christmas Eve until 3.00pm on Christmas Day, the father to collect the child at the start and the mother to collect her at the conclusion;

(f)     In 2008 and in each alternate year thereafter from 3.00pm on Christmas Day until 3.00pm on Boxing Day, the father to collect the child at the start and the mother to collect her at the conclusion;

(g)    In the event that Father’s Day falls on a week-end when the child would not otherwise be spending time with the father, from 6.00pm on Father’s Day eve until 6.00pm on Father’s Day;

(h)    Reasonable telephone communication at times agreed;

(i)     At such further or other times as may be agreed between the parents from time to time.

5.That the time the father spends with the child shall be suspended as follows:

(b)    In the event that Mother’s Day falls on a week-end when the child would otherwise be spending time with the father, from 6.00pm on Mother’s Day eve;

(c)    From 10.00am Easter Sunday until 5.00pm Easter Monday in 2008 and in each alternate year thereafter;

(d)    At such further or other times as may be agreed.

6.That in order to facilitate the father spending time with the child, change-overs which do not take place to and from kindergarten or school shall take place by the mother or her nominee delivering the child to the father’s residence at the start and the father or his nominee delivering the child to the mother’s residence at the conclusion and the delivering parent shall advise the other of their arrival by SMS message.

7.That each of the parents shall advise and keep the other advised of their current residential addresses and telephone numbers (landline and mobile numbers).

8.That each of the parents shall do all such acts and things and sign all such documents as may be necessary to:

(a)    Authorise the child’s school and kindergarten to forward to the other (at the recipient’s expense) copies of all reports, photographs, certificates, achievement awards and like academic memorabilia;

(b)    Advise and keep the other advised of any serious and/or significant health issue experienced by the child during periods she is in their respective care;

(c)    Advise and keep the other advised of the child’s medical and treating health professionals from time to time.

9.That the father and the mother shall each do all such acts and things and sign all such documents as may be necessary to maintain the child’s enrolment at R Kindergarten in 2007 and 2008 and to have her enrolled at S Primary School for the commencement of the 2009 academic year.

10.That each of the parents shall do all such acts and things and sign all such documents to allow a passport to issue for the child and, save as is otherwise provided for in these orders, neither party shall remove her from the Commonwealth of Australia without first obtaining the consent in writing of the other parent.

11.That the mother shall be permitted to take the child on holiday to France in 2008 (for up to four weeks) and the father’s time spent with the child shall be suspended for that period provided that:

(a)    The mother provides the father with at least 28 days notice in writing of the times and particulars of the proposes travel (including itineraries and contact telephone numbers and return air tickets for herself and the child,);

(b)    The father has equivalent make up time with the child divided before and after trip, at times agreed by the parents;

(c)    The father has regular telephone calls with the child during her travel.

12.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13.That all parenting applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation in the court.

14.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

AssoI certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  14 September 2007