W and W

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & W

[2001] FMCA fam 192

CHILDREN – Residence – Contact – Specific issues – Change to an interim shared parenting regime – Significance of father’s conversion to the Islamic faith – Family Law Act 1975 (Cth) ss 60B, 65E, 68F(2).

B & B: Family Law Reform Act (1997) FLC 92-755.

Applicant:

R S W

Respondent:

C A W

File No:

ZB 3680 of 2001

Delivered on:

11 Oct 2001

Delivered at:

Brisbane

Hearing Date:

6 September 2001

Judgment of:

Rimmer FM

REPRESENTATION

Counsel for the Applicant:

Mr G Fleetwood

Solicitors for the Applicant:

Boyce Garrick Lawyers

Counsel for the Respondent:

Mr P Trout (briefed directly)

ORDERS

That the existing orders made in the Maroochydore Magistrates Court on 10 August 2000 remain in force until the commencement of the school holidays gazetted for Queensland in December 2001.
That the Mother be responsible for the day to day care, welfare and development of the CHILD, A R W, born 8 April 1996.
That the Father and Mother have joint responsibility for the long term care, welfare and development of the child.
That as and from the time at which the Orders made in the Magistrates Court on 10 August 2000 cease to operate in accordance with paragraph 1 hereof:
(a)That the child live with the Father during the following periods of time and at any other times as agreed between the parties but failing agreement not less than as follows:
(i)Until the first period of weekend contact following the June/July 2002 school holidays, for three out of every four weekends, commencing 4.00pm Friday and concluding 4.00pm Sunday;
(ii)From the first weekend following the June/July 2002 school holidays, for three weekends out of every five weekends, being the first, second and fourth weekends from 4.00pm Friday until 4.00pm Sunday. That such contact take place so that where possible it coincide with the Father’s contact with his daughter C S with the intent that the child be with his father on those weekends that C is with the Father on contact;
(iii)For two thirds of all school holidays gazetted for Queensland but excluding the Christmas School holidays at times agreed between the parties;
(iv)For one half of the Christmas School Holidays but excluding Christmas Day;
(v)Unrestricted Telephone contact.
(b)That the child live with the Mother at all other times;
(c)That the Father be responsible for the collecting of the child at the commencement of those periods he is to live with the Father and that the Mother be responsible for the collection of the child at the conclusion of those periods he is to live with the Father;
(d)That the Father assist the mother and be responsible for the return of the child on those weekends that he is returning his daughter C S born on 4 September 1991 to her mother at the Sunshine Coast in accordance with contact arrangements in place for that child;
That the Father not have the child circumcised.
That the Father not make the child fast at any time.
That the Father ensure that the child is not confused about the Mother’s home environment and beliefs and that the Mother ensure that the child is not confused about the Father’s home environment and beliefs.
That the Mother keep the father informed at all times of the following matters:
a)Details of the current telephone number and residential address for the child and immediately upon any changes thereto;
b)The progress of the child at school including providing copies of all school reports within seven (7) days of receiving the same from the child’s school;
c)The dates and times of parent/teacher interviews immediately upon being advised by the child’s school of such appointments;
d)The health of the child including immediate notification of any accidents or illness suffered by the child requiring hospitalisation.
That the Father keep the Mother informed at all times of the following matters:
(a)Details of the current number and residential address for the Child during periods when the Child is in his care immediately upon any changes thereto; and
(b)The health of the Child including immediate notification of any accidents or illness suffered by the Child requiring hospitalisation when the Child is in his care.
That the Mother and Father consult about any extra-curricular activities for the child.
That all applications be removed from the Pending Cases List.
Pursuant to S65DA(2), the particulars of the obligations 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 Annexure B to these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

ZB 3680 of 2001

C A W

Applicant

And

R S W

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings relate to the residence of the child A R W born

8 April 1996 (aged 5 years and 6 months at the date of the hearing). A is the only child of the party’s marriage.

Applications

The mother’s application was filed seeking interim orders only in the Magistrates Court at Maroochydore on 6 June 2000 for residence of A. The father filed a response to her application on 3 July 2000 also seeking residence of A. These proceedings were heard and determined in that Court by order of 8 August 2000. The matter was then transferred to the Family Court at Brisbane and the mother filed her application for final residence on 12 February 2001. The father filed his response seeking final orders for residence on 20 April 2001. The matter was transferred to this Court. The matter was determined by final hearing on 6 September 2001.
The mother relied upon an affidavit filed on 4 September 2001, an affidavit of her defacto partner, S Q filed 4 September 2001 and an affidavit of her father J B on 29 August 2001. The mother and S Q gave oral testimony and were cross-examined. The mother was represented by counsel at the hearing.
The father relied on three affidavits by himself all filed in the Magistrates Court at Maroochydore on 2 July 2000, 13 July 2000 and 27 July 2000. He also relied on an affidavit of himself filed in the Family Court on
20 April 2001 and an affidavit by himself filed in this court on 14 August 2001. He further relied upon two affidavits of his present wife J W (nee G) the first filed in the Magistrates Court on 3 July 2000 and the second filed in this Court on 14 August 2001. The father and J W both gave oral testimony and were cross-examined. The father was represented by counsel at the hearing.
The Family Report prepared by Child and Family Counsellor Mr J P and dated 21 August 2001 was accepted into evidence.

Background

The father was born on 16 August 1962 and is 39. The mother was born on 29 April 1963 and is 38. The parties commenced cohabitation in about May 1995 and married on 19 September 1995. They separated on 12 May 1999 and were divorced on 13 May 2001.
The parties have one child of their marriage, A. At the time they commenced cohabitation the father’s daughter from a prior relationship, C S born 4 September 1991 lived with the parties and continued to do so until 1998. C is now 10 years of age. She now lives with her mother D S on the Sunshine Coast and has regular contact with her father each alternate weekend and during school holidays.
The relationship of these parties was for approximately four years duration. The parties separated on two occasions prior to their final separation. There is some dispute about the exact length of these separations but both parties agree that during both those periods of separation the child A lived with the Mother and C lived with her father and that there was regular contact between the child A and his father.
It then appears that after separation and until May 2000 the child A either lived with his father and had very regular contact as is contended by the mother or he lived predominantly with his father and had regular contact with this mother, as contended by the father. It appears at the very least on the available evidence that he lived in a somewhat flexible but reasonably shared arrangement between both his parents, the precise and exact details I find it is not possible to discern, given the conflicting evidence.
In about May 2001 the mother denied the father all contact because she feared he would not return the child to her and commenced the proceedings in the State Magistrates Court. In August 2000 interim orders were made in that Court providing for a shared residence arrangement. Since that time A has lived on a week about basis with each parent.
In August 1999 the father relocated from the Sunshine coast to live at H P in Brisbane. He had converted to Islam and relocated so he could become a part of that community in H P. Therefore A has lived for a week in each fortnight with his father and his family in Brisbane and a week with his mother and her family on the Sunshine Coast. This has necessitated his attendance at two preschools. He is due to commence his formal schooling in 2002.
Both parties have re-partnered and have had children within those new relationships. Their new partners each have children from their prior relationships or marriages. The father has been in a relationship with his present wife J W since May 2000. They both follow the Islamic faith. Although they were not married according to Australian law until 4 August 2001, they regard themselves to have been married under Islamic law for that 17 months and since 12 May 2000. They have twin daughters L and S born 23 April 2001 and four months of age. Mrs J W has a daughter from a previous relationship, T, born

17 February 1998. She is 3 years and 7 months of age.
The mother has been in a defacto relationship with S Q since May 1999. They both confirm their intention to marry once these proceedings are over, in their evidence to the court. They have one daughter Amy born 29 February 2000 and aged 17 months. Mr Q has a son from his previous marriage M who is three years of age who lives with his mother on the Sunshine Coast and has regular contact with this father.

Issues

The issues raised for determination in this matter are identified as follows:
a)The mother contends that the father’s conversion to the Islamic faith and the lifestyle that this requires he and his family to live will impact upon A to his detriment in the long term. She raised that this is a very different lifestyle from the one A knows best and that he had prior to his fathers conversion in 1999. She contends that she can provide an upbringing for A that represents that shared by the majority of children in Australia and does not present these difficulties for the child;
b)The child’s emotional, intellectual and developmental needs and which parent best has the capacity to meet these needs given the matters they each raise against the other in this regard;
c)The complexity of A’s blended and step families and his relationships with his half and step siblings;
d)The impact upon A of changing a shared parenting arrangement, which I am satisfied, he has enjoyed in one form or another since his parents separated;
e)Each parents capacity to properly provide parenting for A and in particular a consideration of each parents willingness to facilitate a relationship between A and the parent with whom he does not reside.

The evidence

Both parties agree that the shared parenting arrangement under the existing interim orders cannot continue after the end of this year. A needs to start his formal schooling and due to the geographical distance between them, this is not something which is in his interest to continue. Both parents propose substantial and regular contact occur for A and the parent with whom he does not reside.
At the outset I would say that this is a very difficult decision. It involves making a decision between two perfectly capable, very loving but quite different parents both of whom wish their young son to live with them. While each of them have raised matters of concern about the other, this is not a case that involves a multitude of allegations and counter- allegations of serious parental deficits.
Whatever the ultimate decision it is clear that A is a very lucky child to have two such loving and capable parents. This decision was, as the Counsellor Mr P outlined in his evidence, a very borderline decision. I sincerely hope that neither parent sees the outcome of this decision as “a win” that entitles them to be exclusive of the other parent in the important decisions about A’s future or as “a loss” of the important role they have to play in A’s life. He has much to gain of great value from each of his parents. It is the different qualities they each bring to his parenting that will ensure that he grows to reach his potential in life.
For this reason I do not propose to make an order that confers sole parental responsibility upon one parent only. I will order that the parents undertake these decisions as far as possible jointly with respect to the long term decisions and each that each parent have responsibility for the day to day decisions during the time he is in each of his parents care.
Also for this reason, this is one of those matters in which I see great value in expressing any orders made in terms of residence/residence and not residence/contact. In so doing I wish to emphasise that neither parent should see the orders as conferring any rights to anyone other than to the child, A himself.
The father‘s case is that he offers a better alternative as the parent with whom A should reside as he can provide a stable loving family with strong moral values. He says that to grant him residence of A would continue stability for A in his primary attachment as he was A’s primary carer at least 65% of the time from February 1999 until September 1999. He maintains that he is more available to provide for A’s care as he is a student on a part time basis and will resume operating his computer business from his home again next year. He states that he has always chosen work that revolves around his children. He states that although his present wife is the home-maker, he plays a large parenting role in his home. He contends that his role in parenting his daughter C during his marriage to the mother and up until 1998 gives support for this contention.
This is disputed by the mother. She maintains that while C lived with them, she was her primary caregiver and was also the primary carer for A both before and since the separation up until the interim orders were made in August 2000. She maintains that the father was heavily involved in his work commitments to the three bands in which he was the drummer and that he was so involved, both in practices and attending performances. This is denied by the father who states it took up very little of his time and he was otherwise available to parent the children.
The father’s evidence is that the mother is now and has been since February 1999 more involved with her employment than in parenting A. He maintains that this continues to be the case at present and Mr Q is in fact undertaking the predominant care role in the mother’s home. This is denied by the mother.
The father puts forward a case that his family environment provides A with high moral standards. His evidence is that despite his total adherence to the Islamic faith that he will provide A with a balanced view of life and support the differences between his and the mother’s beliefs and lifestyles. He believes that in his home A will not be exposed to excessive amounts of commercial television as the children are only provided with certain educational programs and computer programs. He draws a comparison with the situation in the mother’s household where A is unsupervised in playing a program on the computer “Doom” which has high levels of violence and is suitable for mature 15+ use only. After hearing the evidence of the mother and her partner about this matter it does appear that the mother does need to take a greater role in ensuring that this game is not on the computer which is in A’s room and ensure that he does not have access to such a game at his age. This, however, is not a matter of the magnitude made of it by the father. This is an example of entirely different standards between these parents.
In relation to the father’s allegation that the mother poses some risk to the child of psychological harm given that he alleges that she engages in violent conflict with the people he outlines, such a finding is not supported on the evidence. The mother was open and forthright in her evidence as to these allegations. There are complex relationships that have existed in both parties families of origin and in the relationships with former partners. The evidence supports the finding that both these parties have at times experienced difficulties in relationships within their own families, in their own relationship and some of those with whom they have had relationships directly or indirectly in the past. Whilst both parents at times clearly have acted inappropriately and been involved in difficult conflict, the evidence does not support a finding that one of them has a greater problem in this regard.
Much of the evidence of both parties about these matters was based upon hearsay from others. There was no direct evidence from any other person about these matters than the parties themselves or their present partners. There is a great danger in the court relying on evidence of this sort in making such important findings against one parent or the other based on hearsay of people who are not cross-examined. For example, the father refers to difficulties in the relationship between the mother and C’s mother, D S. It is clear that there was conflict also between the father and Ms S in the past and that there was a serious dispute about the residence of C over the years. Without a complete understanding of all that occurred in such a complex dispute, the danger is that the court would make decisions on only one view of how such conflict played out with the relevant persons. It is the same in relation to the wife’s allegations that the father was violent in his relationship with Ms S and that she obtained a Domestic Violence Order in her favour.
I do not find that the evidence supports a finding that the relationship of the mother and Mr Q is unstable or a cause for concern in relation to A’s parenting. I accept that in the early part of their relationship they had a brief separation but that since that time and particularly in the past year there is no evidence to support any serious concerns. Again to make such a finding based upon what a child of A’s age may have said about arguments between the mother and her partner to Mrs J W and his father would be dangerous. No concerns are expressed to Mr P in the Family Report and he does not raise this as an issue at all in his assessment of the mother and her partner.
Similarly the mother seems to raise in her evidence that the court should be concerned that the father and his wife have entered into an marriage arranged for them within the Islamic community and that they married in accordance with Islamic law when the father was still married to her. In my view these matters are not ones that are of true concern in this parenting case. I was impressed by the depth of true commitment displayed between the father and J W.
The mother also makes allegations that the father was suppressive, controlling and violent towards her during their marriage. This issue is raised in the Report of Mr P and her evidence in chief. Both parties have acknowledged to Mr P and described to him a volatile and unhappy relationship. Clearly from the matters disclosed to Mr P by both parents each of them admits to certain aspects of their own behaviour that contributed to such volatility. They each seek to minimise this and to highlight and blame the other as the person the most responsible. The father does so and describes the mother as “violent, controlling and stubborn”. The mother alleges that the father was violent and emotionally abusive to both she and the child C.

I support the assessment of Mr P from the view I gained of both parents in the witness box. They are very different people. They both contributed to the demise of their relationship and while they both blame the other for the “volatility” neither is assessed by Mr P to have overly dominated their relationship and I accept that to be the case. As I have already said and as is assessed by Mr P, each of these parents have relatively poor relationship histories. I accept that neither has the capacity to view the responsibility they accept about their own role within their relationship in an honest way I accept a more balanced overall perspective must be placed on it than either of them are clearly capable of doing.
Against this background, I find that both parents do tend to see the actions of the other, when they are different from those of themselves, in a critical way. They do not have the capacity to hear or understand the other parent’s explanation of why they have formed a particular view. In essence, if the view of the other parents in relation to A does not accord with their own view on the matter, it is seen as wrong. This was clearly the case in relation to the use of the first book obtained by the father for A’s speech difficulties from the speech pathologist. The mother had a reasonable and logical concern about the use of the word Kow (Cow) miss-spelt as the word used to correct A’s pronunciation of the letter “K”. She therefore rejected the book as useful for A and used a book she had obtained from another speech therapist. The father raised this as an action by the mother to support a finding that she does not and will not support therapy to assist with A’s speech difficulties. I find after hearing the evidence that this does not indicate that the mother will not support or appropriately manage A’s speech therapy. It is a clear example of these two parents failing to communicate and agree about how to best manage this issue. I find that both of them share responsibility for this, not just one of them.
The mother’s evidence is that she is able to provide a stable family environment for A which provides him with a mainstream Australian upbringing rather than one lived according to the requirements of the Islamic religion as will be the case in the fathers care. She raises particular issues about the impact of this upon A such as circumcision and home schooling. The father says that these will not be an issue for A if placed in his care and he is willing to consent to orders that restrict him in this regard. Both the mother and Mr Q give evidence that A has raised with them his concern that his mother will go to hell because she sings and plays music and because she displays family photographs. The father denies that A has been given that message from him or his family. He explained to Mr P that music and singing per se are not forbidden by the Islamic religion rather it is the content that causes the issue and that the Islamic beliefs are not to mimic God’s creations and pictures on walls are to be avoided.
It is clear that these distinctions are impossible for a child of A’s age to comprehend. Many such religious concepts require a greater understanding than A would be capable of understanding. I accept that he has become confused about matters that are occurring in his mother’s home that are not accepted by the beliefs practiced strictly in the father’s. This is highly likely to create concerns for him about certain aspects of his parent’s different beliefs and lifestyles. The potential for this to occur in the situation presented to these two parents is great and they treat each other with suspicion and do not communicate well. The differences in their beliefs about how life should be lived is great. I propose to make particular orders to endeavour to regulate this occurrence in the future.
I do not accept that there is any matter in the way the father lives his life within the tenets of the Islamic religion that of themselves are a cause for concern about his capacity to parent A. Real difficulties have arisen and will continue to arise for the child in the manner each of his parents manage the differences. The potential for confusion for A in moving regularly, as he will, between the households of each of his parents when they each live such different lifestyles and hold such different beliefs is also high.
One matter of some concern is the father’s statement to Mr P that his religious beliefs provide an additional personal obligation to gain residence of A to ensure that he develops appropriate values and morals. This has the potential to create ongoing conflict between these parents as there is no doubt that they each have entirely different views about what are appropriate values and morals. This conflict will be harmful for A if it continues. Already the child is reported to Mr P by the parents to display behavioural problems and has a mild-moderate speech disorder. I do not find however that the father will not accept or support a decision made by the Court about A’s best interests. My clear impression is that he will do all that is necessary to ensure A’s best interests in this regard.

The family report

Mr P prepared a Family Report and recommended that A live with his mother, essentially because he assessed that the father and his present wife are both developing their religious and or spiritual identity whereas the mother has not undergone a dramatic lifestyle change and therefore can provide a more stable lifestyle in terms of continuity. He elaborated on this in his oral evidence. He assessed that the mother can provide a lifestyle for A that is that which he had prior to his father’s conversion to Islam and given that this is the way of life that A best understands, it represents stability for him. Mr P was honest in his evidence and described the difficulty he had in making his recommendation in this matter. This was because A clearly has an equally good relationship with both his parents.
Mr P assesses that the religious issues and lifestyle differences have significantly impacted upon both families and have largely contributed to the conflict between the parents. I find that what Mr P assesses is correct and that is that although the father states that he does not dramatise the differences in lifestyle or beliefs with A, A is largely influenced by his father.
I find that it is the case that A was not born into a particular religion and his father’s conversion is a relatively recent occurrence. A did not participate in the Islamic or any other religious community until his father’s conversion. Clearly there is also the potential for A to benefit from participating in the lifestyle of both his parents and their beliefs if they are able to develop respect and tolerance for those differences and do not use them as points of conflict.
Mr P was cross-examined and gave his evidence in a careful and considered manner. He honestly acknowledged the difficulty in this matter as the child has been living in a shared parenting arrangement for some time and is closely bonded and well attached to both his parents. While accepting their differences he assessed that both parents have the capacity to meet all of A’s needs. Mr P recognises that A has important and significant half sibling and step sibling relationships that need to continue and these arise in both parents’ households. A is assessed by Mr P as having warm and affectionate relationships to both parents which he indicates is not surprising given the shared parenting arrangement.
Under cross-examination Mr P identified that in a matter such as this it was likely to be significant as to which parent had been the primary carer for A in his life up until the orders were made for shared parenting as it was likely that A’s primary attachment was with that parent. He understood that this was a disputed fact between the parents. I have assessed the evidence given by both parents and their affidavits about this. It is clear that they each have a very different concept of who provided the primary parenting role for A.
I am satisfied that it was the mother who undertook this role with a great deal of assistance from the father up until the time that the parties purchased the take away business. Thereafter I am satisfied that up until the parties separated it is likely that the father undertook a greater carer role for A than the mother but that following their separation that each of the parents did this on a reasonably equal basis. While the mother may have undertaken the larger role in the business she still at times had the child with her at work.
The father may have undertaken the carer role for A to a much greater extent on some occasions but it was not consistently. I find that the evidence presented by the parties at hearing does not make it possible to go now minutely through everything that each parent did day by day to come up with a percentage of the time they can prove they were A’s primary carer as the father seeks to do. It is impossible to determine it in definitive percentages the parenting role undertaken by each parent for A, such as the 65% he maintains, on the evidence given by each parent. There is little guidance to be obtained from the Centrelink assessment as it suffers from the same difficulties I have referred to and does not involve any investigation of the truth of the facts by that Department. The only finding available on the evidence is that since separation in one way or another, A has consistently received the benefit of shared parenting by each of the parents.

The law

Contact Orders and Residence orders are parenting orders. They arise in proceedings that result from Part VII of the Family Law Act (1975). Section 60B sets out the objects of Part VII and the principles which underlie those objects. They are subject to Section 65E, that in determining the outcome, the best interests of the child is the primary consideration. That is the overriding principle.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various issues set out in Section 68F(2). Each sub-section comprises a list of matters that must be considered in the context that each is relevant to the particular case.
Paragraph (l) permits the court to take into account “any other fact or circumstances that the court thinks fit”. This ensures that the infinite variety of children’s circumstances can be addressed. B & B: Family Law Reform Act (1997) FLC 92-755.

Section 68F(2) — determining the best interests of the child

The child’s wishes

This was not a relevant consideration and neither party submitted that it was a relevant factor to be taken into account.

The nature of the relationship between A, his parents and half siblings and stepsiblings

Mr P reported that A has warm and affectionate relationships with both his parents. He assessed that A has strong and secure attachments to both of them. He raised nothing of concern in the relationships A has formed with either his father’s new wife or the mother’s defacto partner. I find that A has a significant and close relationship with each of his parents.
I find that it is clear that A has formed a loving affectionate relationship with all his half siblings. It is said by Mr P in his report that A has many half siblings and step-siblings all of whom he needs to develop a close loving relationship. These relationships are I find of equal importance to A no matter which parent he resides with. These relationships will need to be maintained either by A living in the same household most of the time or by living in the same household as siblings and having regular interaction with them when living with the other parent for a lesser period of time. He will need to maintain his relationship with C when she is with her father on contact.

The likely effect of any change in the child’s circumstances

A has already had significant changes in his life since his parents separated in May 1999. He has experienced his parents separation and the shared parenting arrangements that I have found were in place between his parents both while his father lived on the Sunshine Coast and then a further significant change when his father relocated to Brisbane and converted Islam and embraced the Muslim way of life in late 1999.
Both his parents have re-partnered and had children from those relationships. He has been introduced to step sibling relationships through these occurrences. He has lived on a week about basis between Brisbane and the Sunshine Coast since August 2000. This has required him to attend two different pre-schools. As a result of the conversion of his father, he has moved between two households that live by very different moral values and have very different lifestyles. All this has occurred in the last two and a half years of his life.
I am satisfied that a change to A living predominantly with one parent will represent a significant change for him. It is necessary that this change occur given the father’s relocation to Brisbane and desire to remain living within the Muslim community in H P in the future. It would not be practicable for the shared parenting arrangement to continue now A is to attend his formal schooling. Further, I am satisfied that there is too great a difference and too much conflict between the parents for such an arrangement to work in A’s best interests in the long term.
I find that A has lived with both his parents or one or other of them on the Sunshine Coast for much of his life and certainly until late 1999. Since then he has lived at the Sunshine Coast for significant periods while in his mother’s care. I find that this is clearly the place at which he has predominantly been raised to this point of his life.
I find that A has predominantly been raised in a family that did not form part of any particular religious community up until his father’s conversion to Islam in late 1999. Since then he has lived between his mother who follows no particular religious beliefs and lives within what may be described as the ordinary Australian community and with his father who since late 1999 has become a Muslim and participates actively within the Islamic community.
I find the father’s conversion has been recent and life changing as described by Mr P in his Report. This has represented a change for A in his upbringing. It is not to say that A will not benefit enormously from living between two different lifestyles and in experiencing two different beliefs. If this is managed with understanding and tolerance by his parents it offers the potential for a wonderful life experience for A.
I am satisfied therefore that for A to live predominantly with his mother represents the least likelihood of real change to the way of life that he has known to date in his life. This is supported by the oral evidence of Mr P.

The practical difficulties associated with contact

In this case there were really no practical difficulties other than working out a regime that fits in with the father’s contact with his daughter and A’s half-sister C, to ensure that relationship is well fostered.

Capacity of the parents to meet the child’s needs

I find that both parents have the capacity to meet A’s needs albeit that they would do it differently and that they have different skills and qualities with which to do so. As I have said, A is a lucky child. He has two good and competent parents who have the ability to fulfil and nurture his talents and abilities and provide him with a high standard of parenting. To do this in the situation that arises in this case however requires each of them to recognise that the conflict between them about values, beliefs and lifestyle issues is potentially harmful and will detract from their parenting capacities.
I find that both Mrs J W and Mr S Q are a positive addition to A life and assist each of the respective parents to parent A as well as they obviously do.

The child’s maturity, sex, background and other characteristics

A is a young boy of 5 and half years. I find that he is, as Mr P reports, experiencing some behavioural difficulties and a speech disorder which Mr P believes are either caused by or exacerbated by the conflict between his parents. He is assessed by Mr P as a likeable, energetic, engaging boy. Apart from the matters referred to neither parent reports that he is other than reaching the appropriate levels of development expected for his age and stage of development. He is a boy born to Australian parents and there are no pertinent cultural issues.
I find that he does suffer from a mild speech disorder which both parents are aware of have and will appropriately manage. They appear to have now overcome the initial difficulties they had in agreeing about his treatment. I accept that they have both undertaken the treatment appropriately. I do not accept the father’s contention that the mother has not done so. She gave evidence which I accept that she works consistently through the set books and has done so apart from the first book. I accept her reasons for this was as result of her concerns and not because she did not see the need to be part of his treatment.

The need to protect the child from physical or psychological harm caused by abuse or ill-treatment, violence or other behaviour

There was nothing in the evidence to suggest that there was any need to protect A in either of his parent’s households. The father submits that he has concerns about the behaviour of the mother and that she engages in argumentative behaviour and physical conflict with others. As I have already found the evidence provides no proper basis upon which such a finding can be made. The issue of the use of the game Doom is not a serious matter that could be said to need other than more appropriate supervision by the mother of A’s use of the computer.
While I accept that the father’s beliefs lead him to a view that children need to have their use of the television and the computer restricted in a much more restrictive way than many other parents would. That is not to say that he cannot make this choice when A is with him but to suggest that the mother is engaging in parenting that is likely to cause the child harm is fanciful.

The attitude to the child and the responsibilities of parenthood

In this case both are responsible parents. They have differing parenting styles. There is nothing that would cause the court to find that one of them has demonstrated “more responsible” attitude to parenthood as submitted by the father. The differences are stark but neither is found to be superior.

Family Violence involving a child or member of the child’s family

Whatever the truth as to the manner that each parent may have conducted themselves during the marriage, there is no evidence that there are any family violence issues that concern A.

Orders least likely to lead to the institution of further proceedings

There is nothing of relevance arising in this matter that would give rise for concern that orders I propose to make placing A predominantly in his mother care but very regularly in the care of his father would lead to further proceedings.

Conclusion

This is a matter in which the decision has been a difficult one to make and luckily for A that is because he has two loving, caring and competent parents. While the competing proposals of each parent are finely balanced, I find that A best interests will be met by continuing the interim shared parenting order until the December school holidays this year which is in just a few short months. Thereafter I find his best interests will be best met by him living most of the time with his mother on the Sunshine Coast where he will live a lifestyle that is that which he has experienced for the majority of his life to date.
His father has a great deal to offer A in his achieving an all-rounded development and I propose to order that he live with his father for much of the school holidays and until June/July next year for three out of each four weekends. Thereafter I propose to order that reduce to three out of each five weekends.

Accordingly, I make the orders set out at the commencement of these reasons.

I certify that the preceding forty-eight (67) paragraphs are a true copy of the reasons for judgment of Rimmer FM

Associate:

Date:

[2001] FMCAfam 192

11 October 2001