W & M - [2006] FMCAfam 108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & M

[2006] FMCAfam 108

FAMILY LAW – Residence and contact – Rice and Asplund – child’s best interests – parties’ capacity to meet child’s needs – responsibilities of parenthood – parties’ attitudes to each other – encouraging other’s involvement – school absences – supervision – contact with half siblings.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2)

B and B; Re Family Law Reform Act (1997) FLC 92-755
Rice v Asplund (1978) 6 FamLR 570; (1979) FLC 90-215
D and Y (1995) FLC 92-581
King and Finneran (2001) FLC 93-079
Bennett and Bennett (1991) FLC 92-191
H v W (1995) FLC 92-598
Re G: Children’s Schooling (2000) FLC 93-025
R and R: Children’s Wishes (2000) FLC 93-000

Applicant:

TLW

Respondent:

TGJM

File Number:

CAM 1866 of 2004

Judgment of:

Mowbray FM

Hearing dates:

9 & 10 June 2005

Delivered at:

Canberra

Delivered on:

10 March 2006

REPRESENTATION

Counsel for the Applicant:

Ms M Burgess

Solicitors for the Applicant:

Legal Aid Commission of ACT

Counsel for the Respondent:

Ms J Saunders

Solicitors for the Respondent:

Elrington Boardman Allport

ORDERS

The consent orders of 11 August 2000 be discharged.
The child, SM, born April 1998 reside with the father.
Both parties retain the joint responsibility for the long term care, welfare and development of SM.
Each party retain the sole responsibility for the day to day care, welfare and development of SM whenever he is in their care.
The mother have contact with SM as follows:
(a)from after school on Friday (or Thursday if Friday is a holiday) until commencement of school on Monday (or Tuesday if Monday is a holiday) each alternate weekend during school terms commencing on the first weekend in odd numbered years and the second weekend in even numbered years;
(b)from 7:00am Wednesday until at least 5:00pm Thursday each week during school terms;
(c)for one half of terms 1, 2 and 3 school holiday periods each year, being the first half in odd numbered years and the second half in even numbered years;
(d)for the 2006/2007 ACT School Christmas holiday period and each alternate year thereafter from 4:00pm on the first day of the school holidays until 4:00pm on 23 December and from 4:00pm on New Years Eve until 4:00pm on 15 January;
(e)for the 2007/2008 ACT School Christmas holiday period and each alternate year thereafter from 4.00pm on 23 December until 4pm New Years Eve and from 4.00pm on 15 January until 4pm on the last day of the school holidays;
(f)such further contact as agreed between the parties.
SM spend a minimum of four hours with each of the parties on his birthday at times to be agreed between the parties.
SM have contact with the mother from 9:00am to 5:00pm each Mother’s Day.
SM spend from 9:00am to 5:00pm each Father’s Day with the father.
SM spend from 4:00pm to 7:00pm on the father’s birthday with the father.
SM have contact with the mother on the mother’s birthday from 4:00pm to 7:00pm.
Each party keep the other informed of the child care arrangements for SM.
For the purposes of contact changeover other than at school the father be solely responsible for delivering and collecting SM to and from the mother.
Each party keep the other informed of their residential address and telephone number and advise the other of a change to either their residential address or telephone number as soon as practicable.
The father forthwith inform SM’s school in writing that the mother shall have full and equal access to all SM’s school activities and should be provided with a copy of all school reports, invitations and notices.
Each party keep the other informed of any serious health issue relating to SM and advise the other if SM is hospitalised.
Neither parent be permitted to remove SM from the Australian Capital Territory region for longer than 14 days without the prior written consent of the other party.
Each party be restrained from making uncomplimentary or unkind remarks about the other in SM’s presence and from allowing any other person to do so.
The mother ensure that while SM is in her care that he attends school by the commencement of school.
Each parent be restrained from drinking alcohol while SM is in their care if it would place that parent above the legal limit for driving.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 1866 of 2004

TLW

Applicant

And

TGJM

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the residence and contact arrangements for SM born April 1998. He is aged seven and resides with the respondent father.

Short background

The father was born in June 1967, the mother in February 1968.
The parties met in December 1993 and commenced living together at the end of 1994 in Canberra. After several periods of separation they separated on a final basis around April 2000. They never married.
The applicant mother has three older children from a previous relationship, JW born October 1985, EW born January 1992 and AW born February 1993. EW and AW live with the mother and JW lives independently.
The parties entered into consent orders on 11 August 2000. These orders provided that the child reside with the father and have contact with the mother for four nights each fortnight plus half holidays.
The mother now seeks residence of SM, or alternatively equally shared care. The father wants current contact reduced.

The applicable law

Residence, contact and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. They are subject to s.65E which provides that in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle. In B and B: Family Law Reform Act1995 (1997) FLC 92-755 the Full Court of the Family Court said:
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII [of the Act] of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The principles set out in ss.60B(2) have particular relevance in these proceedings. They are:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;
c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.
Fundamentally, these provisions emphasise the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the child's best interests.
In a case where a party seeks to vary existing orders, it is appropriate to have regard to the threshold test and apply the principles derived from Rice v Asplund (1978) 6 FamLR 570; (1979) FLC 90-215. In that case the Full Court of the Family Court held that:
… the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied … that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The decision in Rice v Asplund has been subsequently followed in a series of cases (D and Y (1995) FLC 92-581; King and Finneran (2001) FLC 93-079). In King and Finneran, Collier J sitting on appeal explained the way in which the Court should apply the test:
44.To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary, collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.
…
49.…this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50.…The changed or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
If this threshold is met, the Court must then determine the issues in the ordinary way. Section 65E requires the Court to “regard the best interests of the child as the paramount consideration” when deciding whether to make a particular parenting order.
Section 68F(2) sets out the matters that the Court must consider to the extent that each is relevant when determining what is in a child’s best interests in residence, parenting and contact arrangements. Paragraph (l) permits the Court to take into account any other fact or circumstance that the Court thinks is relevant. This ensures that the infinite variety of individual children's circumstances can be addressed (see B and B: Family Law Reform Act1995).

The mother’s case

The mother’s case is about her marginalisation by the father. She says that the father has actively sought to exclude her from joint decision making. He has minimised the information available to her. He has sought to damage SM’s relationship with her by denigration and his attitude to her. She therefore wants SM to reside with her or alternatively for there to be equally shared residence.

The mother’s evidence

On the mother’s evidence the parties’ relationship began to become less amicable in about February 2004 when she raised with the father her concerns about his alleged drinking problem.
The mother provided examples of the father denigrating her and her family in SM’s presence. He has referred to her as a ‘slut’ and a ‘whore’ and caused SM to question whether she was his real mother. He has also told the child that if he attended EW and AW’s school that they would bash him.
The mother gave evidence that the father has systematically reduced her involvement as SM’s parent. She says that she was not consulted about SM attending St M’s primary school. She was not placed on the school record as a contact in the event of an emergency. The father’s ex-girlfriend, JS was. The mother has found it difficult to attend SM’s school activities because the father has told the school she should attend on contact days. In April 2005 she was asked by the school to leave a carnival because it fell on a non contact day.
The mother says that she is not informed about SM’s general health. She is not aware of any medical treatments SM has received. On the other hand she has made appointments during periods of contact for the child to have routine eye and dental check ups, mole screening and other medical appointments.
The father made much of some incidents. For example, in April 2005 whilst in the care of his mother SM burnt his elbow from kettle steam when he was sitting on the kitchen bench. The mother sought advice from a local pharmacist the following morning. She acted on that advice. Later she contacted the Calvary Hospital and another pharmacist. The mother advised the father of the incident. However when SM returned to his father’s care he took SM to the hospital and his arm was bandaged. The mother attempted unsuccessfully to speak with the father to find out what treatment SM had received and the care he needed. The mother subsequently took SM to the same hospital to ascertain the type of care needed.
The mother alleges that the father has a serious drinking problem and is concerned about his capacity to care for SM. The mother contends that during the parties’ relationship the father drank excessively. She described him as a binge drinker. When he drank he would drink to the point where he would fall unconscious and when she found him on some occasions he was sleeping on the floor in the shower.
The mother says that there have been a number of incidents that have exposed SM to harm. In April 2003 SM received bruising to his face and foot after the father’s television fell on him. The bruises were discovered by a teacher at SM’s school who noticed that he was limping. The school principal, MD reported the matter to Family Services.
The mother alleges that SM has been left in the father’s home unsupervised. She recalls that on one evening in September 2003 when she arrived at the father’s home SM was inside the house unsupervised. The father arrived home shortly after with a six pack under his arm.
The mother’s other two children, EW and AW have also been in the care of the father and have stayed with SM on occasions for short periods. They reported to the mother that the father drinks and gets very drunk.
The mother alleges that the father takes SM with him to the F Tavern. He has to wait in the father’s van and on a few occasions he has had to sleep in the van while the father continues to drink. The mother says that SM told her that the father drinks beer while he is driving.
On 9 November 2003 the father telephoned the mother drunk and advised her that SM was sick and that he was taking him to the hospital. The mother persuaded the father not to take SM to the hospital himself. She would come and collect him. Both parties went to the hospital with SM. The mother says that she could smell alcohol on the father. SM told her that when he was sick he had been unable to wake the father up. A similar incident took place in March 2004 when SM tried to wake him when he was on the kitchen floor.
The mother contends that SM reported to her that in early January 2004 SM had been left alone unsupervised asleep at his father’s.
The mother lives in a four bedroom home which is rented through ACT housing. She has lived there since June 2001. SM, EW and AW have their own bedrooms. The mother says that she is at home to supervise the children after school. She collects SM from school on the days she has contact with him.
SM spends time with his siblings and members of the mother’s family. This has included holidays with the family and grandparents in Queensland.
The mother asserts that she is conscious of SM missing his father. She has for example arranged for SM to spend time during school holiday periods with his father during her contact period.
The mother agreed that she has experienced problems with her son EW from 2002 to 2004. He has ADD and has experienced behavioural problems with his schooling. The mother admits that she found this difficult to cope with, as she had with the sexual abuse of AW perpetrated by her ex-boyfriend. She was assisted by Family Services. EW and his mother participated in FACES counselling and EW attended a respite program. He went into voluntary care for more than three months. This has improved his behaviour and his relationship with the mother. There are no current problems with EW.
In addition to Centrelink income the mother receives income as a sex worker. She says however that she stopped working as a sex worker in 1990 and resumed in about 2000. Since then it has been on and off. She says that there were times when she did not work and she only worked during the days and not in the evenings when she had care of the children. She only worked occasional evenings when her eldest son JW lived with her and he would baby sit for her. Since JW moved out in March 2004 she has ceased evening work. She says that she has never entertained clients at her home and since May 2004 she has worked no more than seven bookings.
It is not disputed that in June and July 2001 video tapes were prepared by CASCIA services, a private investigating service in O’Connor. A surveillance report was compiled following an investigation of the mother working at a Brothel in Canberra. On 26 June 2001 an investigator entered the premises with a hidden camera and sought out the mother. He engaged her services as a sex worker and performed sexual intercourse with her. The film was subsequently posted to the mother’s parents who later showed it to the mother. The mother alleges that the father engaged the services of the investigators and sent the tape to her parents. The father denies any involvement in the investigation of the mother and sending the tape to her parents. The mother says that the father has indicated to her that the tape will be presented to SM on his eighteenth birthday so that he can see that his mother is a ‘whore’.

JW is the eldest son of the mother. He is aged 20. He does not live with his mother. He works as a retail assistant. He says that when he lived with his mother their relationship was not very good. His relationship with the mother has improved a great deal since moving out.
He denies that he was left to care for the children including SM when the mother was working. He says that if he did baby sit it was only a few occasions at which time he was 17 or 18.
JW says that during his mother’s relationship with the father he recalls the father drinking a six pack of beer each day. He said that the father would hide his beer behind the fridge in the shed or in the bushes in the front yard and he would pay him to sneak the beer into the house.
JW alleges that on one occasion towards the end of 2003 the father attended the mother’s home drunk and threatened him after he had refused to allow him in. The father then screamed at him that his mother was a “whore”. He had had no contact with the father since the end of 2003.

RW is the father of the mother. He lives in Queensland with the mother’s mother.
In July 2001 he received a package in the post. It contained two video tapes of the mother. He watched part of one of the videos to discover that it was footage of the mother engaging in sexual intercourse. Enclosed with the tapes was a surveillance report. The tapes were delivered to his house which on at least one occasion had been visited by the father. The father was the only person who had told RW that his daughter was working as a prostitute. RW was very upset on receiving the tapes.
The grandparents maintain a close relationship with the mother. Their relationship with the grandchildren is good although contact with SM is limited due to the current contact orders.

SG is the former partner of the father. She lives in Canberra and works as a shop assistant. She is 45 years of age. She has two children from a previous relationship, M and L. She lives with L across the street from the father and M lives independently.

SG met the father in around December 2002 and commenced a relationship with him which lasted until June 2004. They never lived together but they spent four to five nights a week with each other. She ended the relationship because she was sick and tired of the way he treated her. She wanted nothing more to do with him.
SG says that during her relationship with the father she spent considerable time with SM and observed the relationship between him and his father. She also noted that SM, EW and AW played well together.
SG says that the father regularly spoke ill of the mother to SM. She says that he would refer to the mother as a ‘slut’ and a ‘whore’.
SG says that on the four or five nights a week she spent with the father during their relationship the father drank up to two six packs of beer a night and in winter he drank wine instead of beer. She says that he would become merry, habitually passing out on the lounge with a cask of wine. She says that when SM’s arm was in plaster in 2003 the father fell asleep on the couch lying on SM’s arm.
SG alleges that the father has concealed his excess drinking. She says that the father does not go to one shop but to a number of shops so that people would not think he had a drinking problem. She also witnessed the father driving his van after he had been drinking.
SG was aware of the father’s visits to the Fraser Tavern. She says that the father used to park his van at the back of the Tavern because he did not want the mother to know that he was drinking there. She recalls that towards the end of 2003 the father took SM with him to the Tavern. SG and SM were abused by a woman in the Tavern and the father did not intervene or remove SM from the vicinity of the Tavern.
SG says that when the television set fell onto SM the father was away at the shops and was not supervising SM as he claims.
SG says that the father had a number of occasions bragged about the video taping of the mother as a sex worker in a brothel and that he would show this tape to SM when he turned eighteen.
After her relationship with the father ended an incident occurred which resulted in her consenting to a Personal Protection Order against her in favour of the father.

The father’s case

The father asserts that he has been the primary carer for SM for most of his life, certainly since separation in April 2000. The consent orders of 11 August 2000 should remain substantially unchanged, but with deletion of the provision for Wednesday-Thursday contact with the mother.

The father’s evidence

The father says that at the time of separation the mother had no intention of being SM’s primary care giver. The mother had told him on a number of occasions that she never wanted SM.
The father is concerned that SM has had a significant absentee rate from school while in the care of the mother. On some occasions the mother was late in getting SM to school. She also sometimes arrives late with SM for his soccer and has not encouraged his involvement in cricket.
In April 2002 the father sought to have the mother’s contact supervised. This was motivated by concerns he had with the mother leaving SM in the care of her other children whilst she worked at night as a sex worker at a Brothel. He says that on 18 January 2002 he went to the brothel and noticed that her car was parked outside. He approached the mother and told her to go home and look after SM but was escorted away by two security officers. The mother gave an undertaking before the ACT Magistrates Court and this Court that she would not engage in work at the brothel during periods of contact. However the father says that she has since worked contrary to that undertaking.
The father says that the mother has left SM and her other children in his care when she received telephone calls from clients. On one occasion the mother stayed at his home all day because she feared to return home as she had stolen two mobile phones from another prostitute.
The father denies the mother’s allegation that he frequently denigrates her or her family in the presence of SM. He further denies that he has systematically reduced her role as a parent. He says there have been circumstances where it has been very difficult to contact the mother to ask her input. He says that she will not answer her phone and believes that on these occasions she was with a client.
The father says that he did not give the mother’s details to the school as an emergency contact because he wanted to avoid an embarrassing situation if the school were to contact her and she was with a client. Furthermore she was difficult to contact if with a client.
The father disputes that he withholds medical information concerning SM’s health. If SM is receiving any medical treatment he ensures that the mother is given clear instructions. The father is not satisfied that the mother ensures that SM receives proper medical treatment. In particular he is critical of the mother’s actions after SM received burns to his elbow.
The father strongly denies that he has a drinking problem, that he concealed the level of his drinking or that the amount he consumed exposed SM to potential harm. He says that since the allegation in August 2004 he has stopped drinking.
The father says that he was present when SM received an injury from the television set and was not absent as the mother contends. He caught the television when it fell. He says that SM only received bruising to his leg. He says that there are countless occasions where SM is bruised all over after contact visits with the mother. SM is being hurt by EW who trips him.
The father denies that he has left SM unsupervised in his home. There was only one occasion when he left SM alone when he had no milk for SM’s breakfast and he drove to the local service station.
The father disputes that he has attended Fraser Tavern with SM, apart from several Sunday family days. He does not drink while driving. SM has never had to sleep in his van while he remains in the Tavern drinking. He denies that he has passed out from drinking.
The father says he was not drunk on 9 November 2003 when SM had to be taken to the hospital. He admits that he had had a few drinks and did not want to drive. He contacted the mother to drive SM to the hospital.
The father is particularly concerned about the mother’s work as a sex worker. He is adamant that he had nothing to do with the surveillance filming of the mother at work or sending the tapes to her parents. Nor had he threatened to show them to SM when he turned eighteen. Nevertheless he says he thinks he knows who arranged the surveillance.
The father refers to the sexual abuse of AW by a former partner of the mother. He alleges that during the course of their relationship the mother smoked cannabis.
In his affidavit the father denies that SG spent considerable time with him and SM during their relationship. However, under cross examination he accepted that earlier in the relationship they had seen each other three to four times a week. In the later stages it was reduced to two to three times a week. In his view their relationship ended some months before June 2004.

LMR

An affidavit from LMR, a receptionist in the sex industry, was read for the father. It contains nothing of assistance to the Court.

The family report

Ms Sue Connor, a registered psychologist, prepared a family report. She interviewed the parties and SM separately in her office and at the parties’ respective homes with SM. She also gave oral evidence.
In her June 2005 report she concluded:
·SM was a pleasant, rather serious seven year old who was not unduly anxious
·he was understandably swayed by his perceptions of his parents wishes
·he appeared happy and relaxed at both of his parents’ houses
·both parties made allegations and counter allegations about each other’s care of SM, suggesting that they could not cooperate sufficiently for an equally shared arrangement to work
·on balance the current arrangement was benefiting SM
·there was a question of how the mother would cope with having SM more “given her current problems with EW”
·the mother must get SM to school on time
·SM might benefit from extra time with his siblings
·the weekend contact with the mother should be extended to included Sunday nights
·otherwise the current arrangements should be maintained.
Ms Connor said:
This will reduce his days at before school care to 5 a fortnight and give him additional relaxed time with his siblings and mother, without impacting on his sporting commitments with his father.
A number of further points emerged from Ms Connor’s oral evidence:
·SM was equally attached to and involved with each of his parents
·if the father is constantly negative about the mother this could jeopardise the child’s relationship with the mother
·this would be ameliorated by parents portraying much more positive attitudes and views of each other to SM
·the mother was aware of SM’s need for time with his father and not negative about his involvement
·SM had missed quite a few school days for “a small child who should usually be fairly healthy and robust”
·there was no evidence in any of the testing of substance, drug or alcohol addiction
·shared care is rarely an appropriate outcome from disputed proceedings
·shared care required cooperation and communication
·reversing the residence arrangements would raise significant separation issues and adjustment difficulties when moving into a larger family
·none of the matters put to her from the oral evidence suggested that she should change the recommendations in her report.

Consideration

Change in circumstances

The current orders for SM were made by consent on 11 August 2000.
As set out earlier where a party seeks to vary such final orders, the threshold test enunciated in Rice and Asplund and relevant later authorities must be met.
The mother says that there are a number of matters that justify reopening the consent orders
·the matter was never litigated
·the parties resumed their relationship for a short period after the consent orders and then separated again
·five years have elapsed since the orders which were made when SM was just over two
·SM has since commenced school
·the mother has been marginalised and denigrated by the father.
The father asserted that there had been no relevant change. Much of the evidence before the Court is old. The most recent evidence given by anyone on behalf of the mother was still twelve months old.
Some of circumstances advanced by the mother in themselves fall far short of meeting the Rice and Asplund test. Some of the changes are no more than ones which have occurred “by the passage of time or in the usual course of human activity” (King and Finneran).
Nevertheless I am satisfied that taken collectively the changes are of sufficient significance to require reopening the residence and contact orders. In particular, I am concerned about the evidence on denigration and marginalisation which appears to have become more significant. Furthermore, as will become obvious, I have reached the view that some changes need to be made in SM’s best interests. I should give effect to those changes (Bennett and Bennett (1991) FLC 92-191 at 78,262).

Best interests of the children

The test is what contact arrangements are in the best interests of SM. For this I am bound to consider the matters set out in s.68F(2) of the Act insofar as they are relevant.
Paragraph (a) requires me to consider any wishes of the child. Where appropriate the Court can give weight to his wishes (H v W (1995) FLC 92-598; Re G: Children’s Schooling (2000) FLC 93-025; R and R: Children’s Wishes (2000) FLC 93-000).
SM will soon be eight. He told Ms Connor that he wanted to spend more time with his mother and his half siblings. He said that he had more fun at his mum’s because he did not go out much at his dad’s but spent time playing on his play station. Given his age and Ms Connor’s view that SM’s preference reflected what he had been told his mother wanted, I do not attach great weight to this expression of wishes.
Paragraph (b) concerns the relationships a child has with parents and other persons. It is clear that SM has a close relationship with both of his parents and his half siblings. Ms Connor said that he is equally attached to and involved with each parent. He is aware that his parents love him and he loves them. He is happy and relaxed at both of his parents’ homes.
Ms Burgess for the mother emphasised the significant benefits for SM residing in a family which includes not only his mother but also his half siblings, particularly EW and AW who live at home. I do not underestimate these benefits. But they must be seen in a context where SM does have considerable contact with his half siblings and where his father has been the primary carer for much of his life.
Paragraph (c) refers to the likely effect of any changes in the child’s circumstances, including the likely effect of separation from either of the parents.
The father has been SM’s primary care giver since separation at which time SM was only 2 years of age. Ms Connor expressed concern in her oral evidence that there would be important separation issues if residence were reversed.
I accept that SM enjoys and has benefited from the time he spends with his mother and his half siblings. His time with his maternal grandparents during school holidays has also been positive. He is clearly attached to both of his parents. It is important that SM maintain regular contact with both parties and his half siblings. The changes I propose will not alter this.
Both parties make allegations and counter allegations about the others capacity to care for SM. Nevertheless, subject to what I say below, I am satisfied that both parents have the capacity to provide for his needs, including his emotional and intellectual needs (paragraph (e)).
I am concerned about the father’s excessive drinking and the behaviour he displays whilst drunk. I am also concerned about him falling unconscious while SM is in his care.
I found much of the father’s evidence unsatisfactory. In particular I do not accept that he was truthful in denying a number of incidents. I am satisfied that that the father has behaved inappropriately in taking SM to the Tavern while he is drinking. I further find that SM has been left unsupervised to sleep in the father’s van while the father drinks in the vicinity of the Tavern.
In my view the father’s drinking has been problematic and has placed SM in situations that have been harmful. I note that the father has indicated that he has ceased drinking or ceased at his previous level.
It is clear that the father is supportive of SM’s schooling and his extra curricular activities including his soccer commitments.
I accept that the mother has minimised her commitments as a sex worker. I am satisfied however that the mother has on occasions left SM unsupervised or supervised by her other children while working.
Much was made by the father about SM’s absences from school. An examination of the school records against the contact calendar for 2003, 2004 and 2005 does suggest that SM is more likely to miss school or be late when he is in his mother’s care. The mother provided some explanation for this – illness, medical, dental and optometrist appointments. Nevertheless I agree with Ms Connor that the number of absences was worrying for a normally healthy and robust small child.
The father also raised EW’s problems as indicative of the mother’s inability to cope. This does not seem to me to be a current concern. It was on the mother’s initiative that action was taken to address EW’s difficulties. It is also some time since he was undergoing respite care.
I am satisfied that the mother has made reasonable attempts to be more involved in SM’s schooling and his general health. Unfortunately because of the animosity between the parties and the father’s attitude towards her this has not always been successful.
There is nothing to suggest that SM is in any real danger from physical or psychological harm or from being subjected to or exposed to abuse, ill treatment, violence or other behaviour (paragraph (g)).
As discussed above both parties allege that SM’s care and welfare has been compromised whilst in the care of the other parent. In my view SM has been physically injured whilst in the care of both parties due to poor or no supervision. I am satisfied that SM received bruising from the television while the father was not present to supervise him. SM has also suffered bumps and bruises when in his mother’s care. But in the main these have been no more than would be expected in a normal upbringing.
The most important issues in this case arise under paragraph (h) which requires me to have regard to the attitude to SM and to the responsibilities of parenthood demonstrated by each of the parents. The evidence suggests that overall in their different ways both father and mother are caring and positive in their attitudes to SM. It is in their attitudes to the responsibilities of parenthood that I have some concerns.
I am satisfied that the father has consistently engaged in denigration of the mother both in reference and attitude to her. I have absolutely no doubt that the father was involved in arranging for a surveillance video to be taken of her at work and sent to her parents. Who else would have had an interest is such an enterprise? I am satisfied that he has foreshadowed that he proposes to show the video to SM when he turns eighteen. I reject the father’s denials. In oral evidence he was evasive, unresponsive and sometimes contradicted his affidavit evidence.
These actions by the father can only be designed to damage SM’s relationship with his mother. They stem from the father’s views about her occupation as a sex worker. But SM is not responsible for that. He is entitled to as full a relationship with his mother as possible. Yet the father’s acceptance of this appears to be only because it has been forced on him. As Ms Connor said it is time for more positive attitudes and views to be portrayed to SM.
The father has also sought to minimise the mother’s involvement in SM’s activities. For example, he did not involve the mother in choosing a school, he instructed the school to restrict the mother’s participation to contact days and did not name her as an emergency contact. In my view the father has also sought in his evidence to exaggerate various issues about the mother’s care to portray her as badly as he can.
The evidence is that the mother is much more positive about SM’s relationship with his father. On occasions she has foregone contact so that SM would not have too long a period away from his father.
I have examined above concerns about SM’s absences from school. This reflects more on the mother’s attitude to her responsibilities than on the father. Ms Connor has made her recommendation for Sunday night contact conditional on the mother getting SM to school on time.
I have also discussed earlier the father’s drinking. I do not wish to add to that other than to note that Ms Connor found no evidence in any of the testing of substance, drug or alcohol addiction.

Conclusions

SM currently resides with his mother each alternate weekend from Friday to Sunday, from Wednesday morning to Thursday evening each week and for half school holidays. At other times he lives with his father.
SM’s mother wants the residence arrangements to be reversed or alternatively a week about residence arrangement. The father wants the current arrangements to continue with the Wednesday-Thursday contact dropped.
The major issues have centred on:
·the father’s attitudes towards the mother, especially denigration of her
·the father’s attempts to minimise the mother’s involvement with SM and denial of access for her in a normal parenting role
·SM’s contact and involvement with his half siblings
·SM’s absences from school
·the father’s drinking.

I am not persuaded that either of the parent’s proposals is in SM’s best interests. Reversal of residence could not be beneficial. His father has been his primary carer for most of his life. The current orders were made more than five years ago. As Ms Connor said, there would be significant separation and adjustment issues if residence was reversed.
Equal shared care will only work under certain conditions, in particular cooperation and communication. I agree with Ms Connor that in light of the allegations and counter allegations about each other’s care of SM, it is unlikely that the parents could cooperate sufficiently for an equally shared arrangement to work.
But I again agree with Ms Connor that this is a case for slightly increasing the mother’s contact by extending the alternate weekends to include Sunday nights. This will allow SM an extra half day a fortnight with two of his half siblings.
Despite having rejected the mother’s proposals, I remain concerned by the father’s attitude to her and her involvement in SM’s life. It would be wise for the father to reassess his position and make the necessary adjustments. In particular denigration should cease and the mother should be allowed and encouraged to participate in SM’s schooling and other activities.
There are also a number of matters in these reasons to which the mother should have regard, including school attendance, encouraging participation in sport and providing supervision when SM is in her care.
In my view having regard to all the evidence before me the regime I propose is in the best interests of SM.
Accordingly I make the orders set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twelve paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Natasha Werner

Date: 10 March 2006