Trinder and Chiswick

FAMILY COURT OF AUSTRALIA

TRINDER & CHISWICK

[2009] FamCA 729

FAMILY LAW – CHILDREN – with whom a child lives - consent orders made in 2005 - father seeks orders that the child live with him in a week about arrangement - mother proposes that the previous orders be varied so that the child live with the father from Thursday morning until Friday morning and in each alternate weekend from after school Thursday to Monday morning and in the alternate week from Sunday morning to Sunday evening – impact of conflict in the parenting relationship on the child

Family Law Act 1975 (Cth)

APPLICANT:

Mr Trinder

RESPONDENT:

Ms Chiswick

FILE NUMBER:

SYF

3156

2005

DATE DELIVERED:

11 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

27-28 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Rees

COUNSEL FOR THE RESPONDENT:

Mr Campton

Orders

General

All prior orders in relation to the child, … (“the Child”), born … November 2000 are discharged.
The mother and father have equal shared parental responsibility for the long term care, welfare and development of the child.
The child live with the mother as set out hereunder and at those times the mother be responsible for the child’s day to day care, welfare and development.
The child live with the father as set out hereunder and at those times the father be responsible for the child’s day to day care, welfare and development.
The child is to live with the father during the following periods:
(a)In week one from Thursday morning at 7.00 am when the father shall collect the child from the mother’s premises and deliver the child to school at 9.00 am until Tuesday morning when the father shall deliver the child to school between the hours of 7.00 am and 9.00 am.
(b)In week two from Thursday no earlier than 3.30 pm or the finish of the school day when the father shall collect the child from school to Friday morning between 7.00 am and 9.00 am when the father shall deliver the child to school.
(c)One half of the school holidays as agreed between the father and the mother but if agreement has not been reached one month before the scheduled last day of the school term, then the child shall reside with her father during the first half of each school holiday period in any odd-numbered year, and during the second half of each school holiday period in any even numbered year.
(d)One half of public holiday days each year, as agreed between the father and the mother, being public holidays that do not occur during the school holidays. If the father and mother are not able to reach agreement two (2) weeks before the public holiday day aforesaid then the child shall reside with her father on Good Friday (if not coinciding with school holidays), Queen’s Birthday and Labour Day in odd-numbered years, and on Easter Monday (if not coinciding with school holidays), Australia Day and Anzac Day in even-numbered years.
Except as herein provided the child is to live with the mother at all other times.
For the purpose of facilitating orders 5(a) and (b) each party or their nominee shall deliver and collect the child from school.

Other Days

Father

The father is to spend time with the child:
(a)On the weekend which includes Father’s Day from 5.00 pm on the Saturday until before school Monday, in the event that the child is not otherwise living with the father in accordance with these Orders;
(b)In respect of the father’s birthday (… January), if the child is not otherwise living with the father on his birthday, the child shall live with the father from 6.00 pm on the eve of his birthday until 6.00 pm on the day of his birthday; and
(c)In respect of the child’s birthday (… November) in even years from noon on the child’s birthday if that day is not a school day or from after school if that day is a school day until before school or 10.00 am on the day after the child’s birthday. In odd years with the father from after school or 6.30 pm on the eve of the child’s birthday until noon on the child’s birthday if that day is not a school day or until before school if it is a school day.

Mother

The mother is to spend time with the child:
(a)On the weekend which includes Mother’s Day from 5.00 pm on the Saturday until before school Monday, in the event that the child is not otherwise living with the mother in accordance with these Orders;
(b)In respect of the mother’s birthday (…. March), if the child is not otherwise living with the mother on her birthday, the child shall live with the mother from 6.00 pm on the eve of the mother’s birthday until 6.00 pm on the day of the mother’s birthday; and
(c)In respect of the child’s birthday (… November), in even years, from after school or 6.30 pm on the eve of the child’s birthday until noon on the day of the child’s birthday if that day is not a school day or until before school if that day is a school day. In odd years with the mother from noon on the day of the child’s birthday if that day is not a school day or from after school if it is a school day until before school or 10.00 am on the day after the child’s birthday.
In the event that either parent has a significant or special event such as a family gathering, wedding or other special event of which a parent has given the other parent at least 14 days prior written notice of their desire for the child to attend the event. The parents will vary the time that the child lives with each of them and to enable her to attend that event. Where a variation to these Orders is required then the parents shall provide for a makeup time, if requested by that parent at the earliest opportunity.
In the event that either parent is unavailable to personally care for the child for a period exceeding 24 hours, then that parent shall immediately inform the other parent by email and telephone (if that parent is unable to be contacted then by leaving a message for the other parent), and inform them of the circumstance and give that other parent the first option to care for the child whilst he or she is unavailable pursuant to these orders.

Communications

Subject to agreement to the contrary, the child shall have telephone contact with the parent with whom she is not residing between 7.00 pm and 7.30 pm each night.
The parties shall each be entitled to communicate directly with the child’s school and that each party do all things and give all necessary consents and authorities necessary to enable each parent to receive all reasonable information relating to the child’s attendance and progress at school and to receive notices, newsletters, bulletins, school reports, photographs and information regarding the child’s educational progress from the school which she attends.
The parties may each attend parent/teacher interviews, concerts, carnivals and other events at the school or in relation to the child’s extra curricular activities to which parents are invited from time to time, notwithstanding that at the time of such an event the child may be in the care of the other party.
Each parent authorise the school to nominate the other parent as an emergency contact person in the event of any emergency.
Each party is restrained from:
(a)Discussing these proceedings, or issues raised in these proceedings with the child, or with any other person in the presence or hearing of the child.
(b)Denigrating the other parent or any member of their immediate or extended family to the child or to any person in the presence or hearing of the child.

Illness

In the event the child is required to attend upon a doctor or medical professional, that each parent notify the other prior to any such attendance by the child and that no medical procedure or operation be performed on the child except without the joint consent of both the mother and the father, except in the event of an emergency where the child requires immediate medical treatment as advised by a qualified medical practitioner.
In the event of an emergency and the child suffers from a serious injury or illness then the parent who has the care of the child is to inform the other parent as soon as possible and within 24 hours, of the details of the injury or illness and the name, address and telephone number of the relevant hospital or medical practitioner and the time of and outcome of that attendance. That parent shall provide a copy of any medical report they may receive in relation to the child within three (3) days of receipt of that medical report.

Child’s name

At all times and for all purposes each of the parties is restrained from using any name for the child, other than her present name.

Specific Issues

Both parties are retrained from causing the child to relocate permanently to an area not further than twenty (20) minutes travel time by car from the child’s school unless otherwise agreed between them in writing.
The parties shall:
(a)Within seven (7) days of the making of these orders, contact Unifam and take all steps necessary to complete the intake procedure for the “Keeping Contact” program.
(b)Comply with all necessary directions given by Unifam or such other course convenor to attend individual or joint therapeutic consultations, including attending upon appointed consultation dates; and
(c)Involve the child in the process upon the recommendation of Unifam or such other course convenor.
In the event a dispute arises in respect to these orders or their implementation the parties are to attend upon Unifam to see if agreement can be reached before any further application is made to this Court.
Pursuant to Section 65DA(2) and Section 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3156 of 2005

MR TRINDER

Applicant

And

MS CHISWICK

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in these proceedings entered into consent orders in 2005 relating to the parenting of their child, a daughter, born in November 2000.
They provided that the child would live with her father each Wednesday to Thursday and alternate weekends from Friday to Sunday and every other Sunday from between 8.00 am and 9.00 am to 6.30 pm. She otherwise was to live with her mother. There were other provisions in the Orders dealing with school holidays and matters ancillary to the operation of the orders.
The father filed an Amended Initiating Application on 28 August 2007 in which he seeks in lieu of those arrangements, inter alia, orders that the child live with him in week one from after school Monday until before school the following Monday and where the Monday is a public holiday or pupil free day then the time shall be extended to before school Tuesday. It is proposed by the father that the child live with her mother in week two from after school Monday until before school the following Monday and where the Monday is a public holiday and then the time shall be extended to before school Tuesday.
The father also sought orders as to where the child should live during school holiday periods and on special days, and other ancillary orders.
The parties at the conclusion of the hearing agreed to certain of the orders sought by the father, leaving the substantial issues in dispute (apart from one or two matters) being related to the allocation of term time with the child.

The mother opposed the orders sought by the father but although she originally sought that the father’s application be dismissed, she now proposes that the previous orders be varied in accordance with a recommendation made by the Family Consultant.
The recommendations of the Family Consultant, in the Family Report dated

28 August 2008, were in the following terms:
It is my opinion that, [the child’s] wishes aside, the state of the parenting relationship, and the fact that one parent is strongly opposed to such an arrangement, makes equal time potentially problematic for [the child].
I recommend a variation to the consent orders such that the alternate weekend begins on Thursday and extends to Monday morning.
To give a better spread, it might also be advisable to change the evening in the other week to a Thursday.
I recommend that provision be made in the orders for each of the parents to be given first option to take care of [the child], in the event that the other parent has to travel for work or is otherwise unavailable to do so for any significant length of time.
The parties agreed to orders being made in these proceedings in the following terms in part or in whole, as follows:
That the parties have equal shared parental responsibility.
In the event that either parent is unavailable for the personal supervision of [the child] for a period of more than (24 hours as proposed by the husband and three days as proposed by the wife) they shall email and telephone, leaving a message for the other parent and inform them of the circumstance and [the child] shall live with her other parent in the first instance on each such occasion.
For the purpose of facilitating these orders each party or their nominee shall deliver and collect [the child] to and from school pursuant to certain of the orders to be made.
For the purpose of facilitating these orders the parties or their nominee shall collect [the child] from school or the other parent’s residence and deliver her to school or the other parent’s residence pursuant to orders made above.
In accordance with the exercise of equal shared parental responsibility:
Each parent is at liberty to communicate directly with [the child’s] school, teachers and other school authorities as to her progress at school and any difficulties that may be experienced by her.
Each parent is to authorise the school to nominate the other parent as an emergency contact person in the event of any emergency and shall do all things required to ensure that the other parent is on the mailing list for copies of school reports and circulars as to upcoming events.
Each parent shall be entitled to attend at any event in which [the child] is involved either at school or in other extra curricular activity at any time.
As to medical treatment:
Each of the parents are required to notify the other prior to any attendance by [the child] on any doctor or medical professional and in the case of an emergency as soon as practicable on the day of attendance and in all cases advise within twenty four (24) hours as to the need of that attendance and the outcome of such attendance and time and place of attendance and the parent shall provide a copy of any medical report they may receive in respect to [the child] within three (3) days of receipt of that medical report.
The parties agree that no medical procedure or operation shall be undertaken upon [the child] without their joint consent and in the case of an emergency requiring immediate medical treatment as advised by a qualified medical practitioner.
And further agreed to orders as follows:
Neither parent shall change [the child’s] name formally or by usage.
Each of the parents are restrained from saying anything to or in the presence of [the child] which is in any way abusive, belittling or demeaning to the other parent and further are restrained from allowing any other person from saying anything to or in the presence of [the child] which is in any way abusive, belittling or demeaning to the other parent.
Each of the parents is restrained from saying anything to or in the presence of [the child] about the proceedings between the parents in this Court.
That both parties are hereby restrained from causing [the child] to relocate permanently to an area not further than twenty (20) minutes travel time from [the child’s] school unless otherwise agreed between them in writing.
That the parties shall each do all things necessary to attend at the Keeping Contact program at Unifam and agree that [the child] shall be involved in the process upon the recommendation of the Unifam counsellor.
If any dispute arises in respect to these orders or their implementation the parties shall attend on Unifam for the purposes of dispute resolution without the need for attendance at a court.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father was born in 1962.
The mother was born in 1969.
The parties were married in December 1994.
The parties separated in 2004.
The mother has re-partnered with Mr K. He has two children by a prior marriage, and who are in their late teens.
On 3 June 2005 the parties entered into consent orders for the parenting of their child in the following terms:
1.That each party have the responsibility for making decisions concerning [the child] born […] November 2000 day to day care, welfare and development when [the child] is with him or her.
2.That the Father and Mother have the joint responsibility for making decisions concerning the long term care, welfare and development of [the child].
3.That [the child] reside with the Father as follows:
a.Each Wednesday morning at 7.00am when the Father shall collect [the child] from the Mother’s premises and deliver [the child] to school/daycare at 9.00 a.m. until Thursday morning when the Father shall deliver [the child] to school/daycare between the hours of 7.00 a.m. and 9.00 a.m. The Father shall collect [the child] from school/daycare on Wednesday afternoon no earlier than 3.30 p.m. or the finish of the school day.
b.Each alternate weekend from Friday no earlier than
3.30 p.m. or the finish of the school day when the Father shall collect [the child] from school/daycare to Sunday morning between 8.00 a.m. and 9.00 a.m when the Father shall deliver [the child] to the Mother’s premises.
c.On the alternate week to (b) above the Father shall collect [the child] on Sunday between 8.00 a.m. and 9.00 a.m. from the Mother’s premises and return her the same day to the Mother at 6.30 p.m.
d.In the event that there is a school pupil-free day or public holiday following the periods when [the child] resides with her Father on a Sunday, then the period extends to between the hours of 8.00 a.m. and 9.00 am on Monday morning instead of Sunday evening.
e.One half of the school holidays as agreed between the Father and the Mother but if agreement has not been reached one month before the scheduled last day of the school term, then [the child] shall reside with her Father during the first half of each school holiday period in any odd-numbered year, and during the second half of each school holiday period in any even numbered year.
f.One half of public holiday days each year, as agreed between the Father and the Mother, being public holidays that do not occur during the school holidays. If the Father and Mother are not able to reach agreement two (2) weeks before the public holiday day aforesaid then [the child] shall reside with her father on Good Friday (if not coinciding with school holidays), Queen’s Birthday and Labour Day in odd-numbered years, and on Easter Monday (if not coinciding with school holidays), Australia Day and Anzac Day in even-numbered years.
4.That [the child] shall reside with the Mother at all other times.
5.Subject to contrary agreement that [the child] shall have contact with her Father as follows:
a.By telephone between 7.00 p.m. and 7.30 p.m. each night when [the child] resides with her Mother;
b.On Fathers Day and on the Father’s birthday between 8.00 a.m. and 7.30 p.m., even if this day shall occur during the period when [the child] resides with the Mother.
6.Subject to contrary agreement that [the child] shall have contact with the Mother as follows:
a.By telephone between 7.00 p.m. and 7.30 p.m. each night when [the child] resides with her father;
b.On Mother’s Day and on the Mother’s birthday between 8.00 a.m. and 7.30 p.m., even if this day shall occur during the period when [the child] resides with the Father.
7.The Mother and the Father shall, by agreement, share equally in the care of [the child] on her birthday, having regard to the amount of time available on that day.
8.Notwithstanding any other provision in these orders, but subject to the Mother and the Father expressly agreeing to the contrary no later than 24 November each year, Christmas contact arrangements for [the child] shall be as follows:
a.In odd numbered years [the child] shall have contact with her Father from 4 p.m. on Christmas Eve to 10 a.m. on Christmas Day; and
b.In odd numbered years [the child] shall have contact with her mother from 10 a.m. on Christmas Day to 9 a.m. on Boxing Day; and
c.In even numbered years, the arrangements referred to in (a) and (b) shall be reversed.
9.In all cases the Father and the Mother’s holidays with [the child] should be taken during the school holidays period wherever possible. Each of the parties shall consult with the other in relation to contact for holiday periods which do not fall during the New South Wales school holidays and the parties will consult with each other as to the duration and location of those holidays.
10.Each of the parties will provide the other with all travel details including flights, accommodation and telephone numbers whilst [the child] is travelling with them.
11.In the event that either parent is unavailable to personally care for [the child] during their allocated periods then consideration will be given to the other parent having the option of caring for [the child] during that period prior to any other arrangement being made.
Specific Issues Orders:
12.The Mother and the Father agree that no medical procedures or operations be undertaken in relation to [the child] without their joint consent unless in the case of an emergency requiring immediate treatment as advised by a legally qualified medical practitioner.
13.Both the Mother and the Father agree that neither shall change [the child’s] name in any way without the written consent of both of them.
14.Both the Mother and Father agree that they will provide to each other a telephone contact number during periods when [the child] is with them.
15.Pursuant to Section 65DA(2) the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure “A” and these particulars are included in these Orders.
Notations:
I.Both the Mother and Father express their commitment to the best interests of [the child] and to ensuring that they will support each other in [the child’s] parenting.
II.If a dispute arises between the Mother and Father in relation to any of these Orders or in relation to any aspect of [the child’s] parenting, they agree that they will first attempt to resolve the matter as between themselves but, if that is not successful they will then return to Relationships Australia (or a similarly accredited organisation) for the purposes of mediation and/or counselling as the case may be, in preference to seeking legal advice and exploring their legal alternatives.
III.Both the Mother and the Father recognise that as [the child] grows up and goes through developmental milestones, they may both need to change how they are parenting [the child] and both the Mother and the Father acknowledge that they can vary the terms of this order by mutual agreement, but only if they both agree that such variation is in the best interests of [the child].
IV.Both the mother and Father agree that they will not denigrate each other in [the child’s] presence and in the future when each of them re-partners and has a family, they will not denigrate each other’s partner and family in the presence of [the child].
V.Both the Mother and the Father are committed to complete transparency and accountability towards each other when it comes to information that each of them may have from time to time relating to aspects of [the child’s] parenting so that there will be a free flow of this information between each parent.
VI.Both the Mother and the Father will use their best endeavours to communicate with each other in relation to [the child’s] needs and her activities and events relating to her and where such personal communication is not possible to use a parenting diary which will accompany [the child] as she moves between each household.
VII.Both the Mother and Father acknowledge that there are real benefits to [the child] in having both her parents living in reasonably close proximity to each other and to her school, and they will endeavour to co-operate in this regard.

The father sought the mother’s concurrence in relation to proposed changes in the orders and when agreement did not eventuate, he commenced these proceedings.
Each of the mother and the father say that the child has a good relationship with each of them and that it is appropriate and proper that those relationships be maintained.

The Issues

What periods of time during the school term should the child spend with each parent?
Should the parents give each other the first opportunity of caring for the child when the other is unable to do so for one night on the father’s proposal and for three days on the mother’s proposal?
Should there be an order to deal with special family days such as weddings, christenings and family assemblies and the like? If so, what should be its terms?

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“…When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“…The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
There is no such evidence in this case which would suggest that the child’s interests are otherwise served, and the parties in any event seek orders for equal shared parental responsibility.
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

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

Neither parent said of the other that in any way their conduct meant that this child’s interests were to be served other than by fostering and maintaining a meaningful relationship with the other. There is nothing in the evidence which leads me to a conclusion other than that the child should and will benefit from the maintenance and encouragement of such a relationship with each parent.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The evidence does not permit of the conclusion that this child has been the subject of any neglect or physical harm.
The child is in danger of psychological harm by reason of the continuing disagreements between the parents and their apparent inability to freely communicate about and resolve such disagreements. In this regard neither of them is blameless.
Each of the parents however recognises that there is a flaw in their capacity to communicate with the other. Each of them has said that they would be prepared to undertake a course to facilitate post separation communication, were I to order it. I intend to do so.
Notwithstanding the history of this matter each of them reported that of more recent times their communication had become somewhat easier. Presently however, and in order to avoid controversy, much of it is by email.
Each of the parties has become entrenched in the conflict, the mother asserting that the father has doggedly pursued a claim for equal time with the child presumably for reasons personal to him, rather than the interests of the child.
The father has accused the mother of opposing him having more time with the child for reasons personal to her and not in the interests of the child.
To the extent that any of that is now relevant I came to the conclusion that there was evidence which supported both views to some extent, although my reading of the order sought to be varied certainly gave the father a not unreasonable expectation that there would be a change in the time he spent with the child as the child grew older.
The inability or intransigence has thus far caused that notation contemplating such change to be meaningless rather than meaningful and is the cause of the present proceedings.
It is my hope that each of the parties, when they contemplate what has happened in these proceedings and the dust of this conflict settles, will more acutely focus on the needs of their child. It is her right be able to look to each of her parents for succour, nurture and support and see in each of them someone who will assist her in her failings and disappointments, rejoice in her successes and applaud her achievements, and otherwise in a real and positive way contribute to the ability of the child to achieve her maximum potential.
In this way they will be better able to contribute to the child’s welfare and development and reduce conflict by seeking other less adversarial paths to the resolution of their disagreements.
If a concern for their child’s welfare is not a sufficient motivation (and it should be) then a reflection on their legal costs in these proceedings and the ways in which that money could have assisted the child might be an additional spur to different behaviour.
What the child does not need is a continuation of conflict and dispute.

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

The child has expressed, as one might expect in the shadow of litigation, different things to each of her parents and to the Family Consultant. The Family Consultant reported that the child at age 7 years 9 months was critical of her father’s care but equally said that she likes to spend time with him because it is fun to do so and she has fun spending time with him.
Having said that, she also said that she likes to see her mother when she returns from dad’s because “she has surprises for me when I come back because she misses me; she says she thinks of me”. In her report the Family Consultant writes that “[the child] knows her mother misses her because she tells her so.”
The child however also said that her father misses her. The Family Consultant reported that:
“… [the child] said that her mother has said that her father is a “horrible person” because he tells lies. Her father, she said, has said that he wished he could live with her mother. She views her mother as being the happiest member of the family and her father as the saddest.”
The child expressed the view that she wants to “live with 'Mummy’ and visit ‘Daddy’.” The Family Consultant writes that:
“[h]er mother, she said, told her that she looks after [the child] better than “Daddy” does. She also said that her mother told her how much time she wants [the child] to spend with her father (that it should stay the same). [The child] wants what her mother wants.”
It seemed clear to me that in her dealings with this child the mother had wrongly used the child in seeking to draw her into active participation in the dispute between the parents in order to gain advantage in this litigation, a course which is wholly reprehensible.
The father gave evidence of the child spontaneously on a couple of occasions expressing a desire to remain with him longer or for him to be with her at certain events.
The Family Consultant’s impression of the child is that she is a child who does not like to be at odds with other people. She informed the report writer that she never gets into trouble and would feel sad if she did. She is always good. She said that she was aware that her parents did not get on and said that she feels “nothing about it”.
I do not give much weight to the expressed views of the child. I do not do so because of her age and what appears in her to be a desire to express a view which is supportive of the parent with whom she is at the time or a reflection of her mother’s persuasion of her to her mother’s view.
In addition, there was a clear difference between what she said and how she behaved.
The Family Consultant concluded:
“… In my opinion she loves both of her parents. The way she behaved with each of them, aside from what she said, suggested this. Why she was negative about her father in the first part of her interview or why she behaved differently towards him in her mother’s presence from the way she did when her mother was absent, I do not know. It might well be that she is insecure about what she thinks her mother’s reaction might be to seeing displays of affection towards her father. This would be particularly so if she has been exposed to displays of hostility towards the father, as has been alleged has occurred. Alternately, she may sense some insecurity in her mother, in which case aligning with her mother in her father’s presence would serve the purpose of reassuring her mother (and therefore herself). It might also be that, as a child with an aversion to displeasing of angering others, she reacts to the parental conflict by aligning first with one parent and then the other (depending on who she is with) and when the two come together she aligns herself with the parent with whom she lives (and wants to continue living with). What the parents need to know is that this type of behaviour in a child usually signals a need for the adults to change something they are doing.”
In her report the Family Consultant goes on to write:
“It seems to me that either one of both of the parents are lying and, in this way, compromising their daughter’s truthfulness (or perception of reality), which very clearly is (at best) unfair to the child, or [the child] has become a player in the parental conflict, giving each of her parents the version of reality that they want to hear and in this way securing her position with both of them. Either explanation points to the impact on [the child] of the problems in the parenting relationship.”
(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)
The child is acknowledged by each of the parents as having a loving attachment to the other. The mother says that hers is a primary attachment which has a longer history. The Family Consultant says the child has a loving relationship with each of her parents. The mother has repartnered, and the child, in the view of the Family Consultant, has an appropriate relationship with her mother’s new partner.
(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
There is in this case some evidence which would support the view that the mother has actively discouraged the maintenance of that quality of relationship which the child should have with the father.
The Family Consultant whilst talking of a failure of the mother to prefer the father as a carer for the child, instead preferring her mother when she was not available, said “It also tends to support my original impression that she minimizes the importance of the father in her daughter’s life.”
Whilst this suggestion was denied by the mother it seemed to me that the probability was that she was unable to rise above her feelings about the child’s father and that those feelings were reflected in her attitude to everything that he did.
When asked to comment upon the father’s good points the mother initially said that the child loved him and then after some hesitation and consideration said words to the effect that he showed an interest in her and participated in her life.
The father for his part has been unable to cloak or dissemble his feelings of unhappiness at the marital situation. He was, and is, a man of demonstrative emotion.
He cried on a number of occasions in the witness box when reflecting upon matters which affected him or the child adversely.
Given his emotive responses, I could see why the child might regard him as the saddest member of the family. It seemed to me unlikely that he would be able to cloak that emotion from the child and that the child could not help but know of it and react to it.
Notwithstanding the above, each of the parents disclaimed any attempt to guide the child into a situation of non acceptance of and unhappiness with the other parent. I am somewhat sceptical of these disclaimers having regard to the Family Consultant’s report.
(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
The Family Consultant was asked, that accepting her reports as demonstrating that the mother minimises the importance of the father (which I accept has been the case in the past) what was the likely effect of the child’s prolonged exposure to those views?
The evidence of the Family Consultant was to the effect that it may lead the child to feel insecure with her father and more uncertain as to how well the father will look after her.
That insecurity will not stem from her own experience, she said, but on her mother’s views (on whom she relies) as to an interpretation of the world.
It may also make her less willing to display affection to her father in front of her mother.
In the long term it might lead in two ways: it might lead to the child aligning with her mother and repudiating her affection for her father; or it might as she gets older, lead to a situation of her becoming much more confused by reason of the fact that her experience of her dad will be contrary to the way her mother was feeling and saying.
It was then put to the Family Consultant that in order for the child to be able to formulate her own views she needs to spend more time with her father.
The Family Consultant accepted that might be a solution, whilst stating the obvious - that the best solution was that there be no exposure of the child to negative views of each parent about the other.
The Family Consultant was informed that her recommendation made some 12 months ago - that the child spend a broken five nights of each fourteen with the father - was now accepted by the mother but that the father continued to press for equal time. This was seen by the mother’s counsel as a dangerous result since it would provide the father with vindication and be a springboard from which, if the mother’s fears were realised, further demands would be made.
The Family Consultant said that it was vital for the child that the mother needs to address her negativity in relation to the father for her own sake as well as that of the parties’ daughter.
The effect of a change was a little unpredictable according to the Family Consultant and she outlined various possible scenarios including ones which were positive and those which were negative for the child in the change they would bring about. On the whole, however, she saw a change in the current situation from her recommendation of 5 nights each 14 day period to 6 nights as not being problematic for the child.
Anything more might be a problem creating solution. The Family Consultant was keen again to put before the Court that the best path for this child was the adjustment of parental attitudes and behaviour. She was informed of the evidence, which I accept, of the child’s expressed desire to spend more time with the father.
The Family Consultant was unable to express a view as to whether it was a genuine wish of the child or rather a desire to be reassuring to her father of her love for him. She offered the view that if a change were against the child’s authentic wish, and not one simply expressed to offer comfort to either her mother or her father, it would be problematic.
The view of the Family Consultant was that at this time that the child should not spend equal time with each of her parents since that would be too great a change. She was keen to emphasise that what to adults seems minor to a child can seem major, with results which reflect the child’s perception of the significance of that change. It was her view however that a change might take place as set out 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
There was during the course of the trial discussion at some length about the ability of each of the parents to care for the child and to properly transport the child to the other parent and to school given the child’s present schooling and present and proposed places of residence of each of the parents. In my view it was not a matter of significance and I find that in the present circumstances there is no practical difficulty or expense attached to the child spending time and communicating with a parent. The present factors also do not indicate that there could be any substantial adverse effect of the orders that I propose to make on the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(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
There is no evidence that the parents of the child are unable to cope with providing for the needs of the child including her emotional and intellectual needs except to the extent referred to above. Each of the parents has demonstrated some lack of capacity to put the child above the emotions which in each of them has been inspired by the other. I trust that the evidence I have received of a new chapter in the communication between the parties is correct and that the former approach has been confined to the dustbin of history.
(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
The child is currently eight years and nine months of age. If one were to rely on past history no form of order made in this matter whatever the result, would be able to anticipate flexibility of a major sort between the parties to adjust the arrangements to suit the child’s changing needs. I hope that I am completely wrong and that the future will present a different and better future for the child.
In my view it is important the orders should be the basis upon which the parties share the child’s parenting for some period of time. The oral evidence of the Family Consultant is clear that as the child grows older her needs and views will be more important and that she will seek and require some autonomy and involvement in decision making concerning her future. It is therefore my hope that any change in the future will take that into account as well as what is in the best interests of the child at the time.
(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 provision does not apply to this child.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother was at pains to say that the father had pursued an obsessive view which he had from the date of separation as to the time that his daughter should spend with him so that he could fulfil his obligations as a parent. I reject the assertion that he has been bullying and obsessive.
I do agree that he has had a clear vision of what is best for his daughter and that in the early years of her life that may have been less wise. Nevertheless, I accept that his approach has been more motivated by a consideration of what he can contribute to his daughter’s life, rather than an obsessive desire to achieve his own ends (said to be unmeritorious by the wife), at whatever cost.

The attitude of the parties to each other apart, (which is in my view an abrogation of the responsibilities of parenthood of a child who is attached to and loves each of them) it seems that they have each fulfilled those responsibilities appropriately.
(j)any family violence involving the child or a member of the child’s family
There is no evidence of family violence. There is an assertion that the mother finds the father intimidating. In my view it has not been shown on the evidence that there is reasonable cause for the mother to so find him. His correspondence with her may be brief and to the point but it did not in my view constitute intimidation or anything like it.
The mother’s view of it is I think born of a sensitivity which is derived of the mother’s reaction to the father generally. In any event it seems that that problem is past and now by common accord the parties are better at communication with each other. I trust that it will develop as the parties continue to see their relationship as co-operative and supportive parents of the one child.
(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
There is no such order.
(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
Given the past history of this matter, the order which I make is the best I can do to try and prevent further litigation consistent with my understanding of the best interests of this child. The past history of the matter does not give me great expectations for the future but the improvement in the relationships of the parties and their avowed concerns for their daughter’s welfare and their willingness to undertake the “Keeping Contact” course gives me some, albeit flickering, light at the end of the tunnel.
(m)any other fact or circumstance that the court thinks is relevant
In relation to the other matters in dispute between the parties, it seemed to me that in relation to the order as to the provision of an opportunity for the other party to care for the child, that there was no real reason that that opportunity ought not to be provided in circumstances where the party was unable themselves to care for the child for a period of 24 hours.
The contention of the mother that it might interfere with the relationship between the child and her grandparents I do not accept. It seems to me that responsible parents would provide for the maintenance of that relationship from time to time and that having regard to the orders that I will make it is entirely open to them to do so during the periods of time that the child will live with each of them.
In making the orders in this matter I have also in mind the evidence of the Family Consultant given in her Report that:
“[t]his does not mean that [the child] would not be able to tolerate some change to the arrangement and, given the tensions in the parental relationship, a change that removes a direct change over might, indeed, be desirable.”
This has been interpreted by the father as meaning that changeovers would best occur at school, where the parents do not have to face the difficulty of the impediments in their relationship. It would be my hope that given time and the opportunity for reflection that the parties will be able to accommodate interpersonal handovers of the child without the necessity for artificial separation between them.
The child would benefit significantly in my view by the demonstration by her parents co-operatively and responsibly parenting her. Until that can be clearly demonstrated I will give some support in my orders for the principle that until that demonstration is consistently apparent it is in the child’s interest that she be removed as far as possible from the possibility of experiencing antipathy between her parents.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been no family violence.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is no reason for the presumption not to apply and neither parent seeks that.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
In this case the father seeks equal time. The Family Consultant is concerned by the possibility of some damage to the child if an order is made in those terms by reason of the mother’s attitude to it and the reflection of that attitude on her daughter or in the alternative because of the possibility that that may be genuinely against the child’s real wishes.
Given that her report was one prepared a year ago approximately and that the child has developed since then, she was unable to be more sure in her prediction.
It seemed to me however that there was less possibility of an adverse result if the change in the arrangements did not come too quickly for the child.
I have to balance that approach against the desirability of creating a result which is likely to last as a regime for some time, and avoid the nurturing of continuing conflict which will be harmful to the child, a result which lasts perhaps until the early teens of this child, or perhaps until the parents earlier develop and act upon a newly acquired insight into their own behaviour and its effect on their child.
As to that latter matter, it is not possible to predict when that might occur if ever but there are some positive signs that there might be a new understanding in each of them of their daughter’s needs.
The order I propose to make will afford the parties close to equal shared time with the child but will constitute a change to the present situation which I find to be in her interests. Those orders will not be what the father wants as to time but will reflect the oral evidence of the Family Consultant that the child could accommodate a change from the present situation to one in which she has 6 days out of each 14 days with her father.
The Orders to be made will I hope provide for each of the parties and the child some certainty for the future.
In relation to the orders concerning family events and the like I note that the possibility was raised that the order as sought by the father might lead to further likelihood of conflict. Indeed any order might. I have considered the matter and subject to sufficient notice, which I will fix as 14 days notice, I think that the clause should remain. It is important that the child not be excluded from important events in her parent’s lives. This could be seen by her as rejection by a parent she loves and deny her the opportunity of seeing that parent reflected in the context of their family and friends, a context of which she is part.
I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 11 August 2009

[2009] FamCA 729

11 August 2009

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Family Law

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Consent

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