W & W

[2006] FamCA 1050

[2006] FamCA 1050

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY  No. SYF2632 of 2006

BETWEEN:

W

Father

- and -

W

Mother

REASONS FOR JUDGMENT

BEFORE:                 The Honourable Justice Moore
HEARD:                   3 October 2006
JUDGMENT:           17 October 2006

APPEARANCES:    Ms Christie, instructed by Meyer Pigdon, DX 11578 Sydney Downtown, appeared for the applicant/father. 

Mr Millar, instructed by Karras Partners Lawyers, DX 3622 Double Bay, appeared for the respondent/mother.

CATCHWORDS: CHILDREN – With whom a child lives - Interim parenting proceedings – whether Cowling has any relevance post 1 July amendments.

Proceedings

1. Interim parenting orders made by a Judicial Registrar on 7 August relates to the care of the parties’ son, J (5) born in October 2001.  On 14 August the father filed an application to review certain of those orders.  As well as seeking its dismissal in her response, the mother seeks a review of the decision not to appoint a psychiatrist, Dr M, to prepare a report.  There is also an issue about J’s schooling next year and, while that was not dealt with by the Judicial Registrar, it seems necessary to resolve it now given the time involved. 

Cowling

1. Counsels’ submissions raised the question of the principles to be applied to interim parenting decisions since the introduction of amendments to Part VII of the Act from 1 July; more particularly, whether the authority formerly applied, Cowling and Cowling (1998) FLC  [per Ellis, Lindenmayer and Jordan JJ], has any enduring significance.  The issue was not addressed through any analysis and as yet there is no decision at appellate level on the subject, though it is said cases raising the issue are listed to be heard in a sittings at the end of this month.  My own view is that Cowling, not entirely irrelevant, has quite limited application now.  My reasons follow. 

1. Cowling:  The facts have no real bearing on the topic and can be ignored; so too the summary given of the judgment at first instance along with discussion of the appeal grounds argued.  More to the point, their Honours came to address the criteria to be applied when making decisions about interim residence arrangements and the guidelines thus established have prevailed since. 

1. Their Honours began by reviewing, albeit briefly, the position under the legislation as initially enacted, citing the judgment of Evatt CJ and Watson J in Sanders and Sanders (1976) FLC 90-078 which gave an indication of the factors that would normally fall for consideration in determining parenting arrangements. The later amendments of 1983 did not limit the factors to which the Court might have regard but inserted guidelines which did not, in their Honours’s view, change the law. They refer to the further amendments in 1991, followed by the Family Law Reform Act 1995 (Cth). Again in their Honours’ view, the 1995 amendments did not change the law but amended the existing codification of it and again the ‘legislation did not purport to limit the factors to which the Court might have regard in a particular case (s.68F(2)(l)) and the factors referred to in the section are those generally considered by a trial Judge.’  They went on to refer to authorities where the criteria for determining interim arrangements had been considered by the Court - in particular, Cilento and Cilento (1980) FLC 90-847, Griffiths and Griffiths (1981) FLC 91-064, Rainer and Rainer (1982) FLC 91-239 and C and C (1996) FLC 92-651 – and concluded the enactment of the 1995 Act had not detracted from the relevance of what had been said in those cases. They added that the correctness of those earlier decisions was not challenged on the hearing of the Cowling appeal.So far as I know, nor has there been any challenge to the decision in Cowling, but whether it would have withstood scrutiny up against the legislation at the time is now moot because the question has become whether it remains relevant after the 1 July amendments. 

1. Their Honours then came to the relevant provisions in Part VII: the objects and principles under s 60B; best interests being the paramount consideration under s 65E; and the matters the Court must consider in determining best interests in s 68F.  They approved the procedure for interim hearings considered in D and Y (1995) FLC 92-581 and C and C (supra).  They noted the Act does not draw any distinction between the principles to be applied in interim and final proceedings and commented the ‘essential difference …is one of procedure’.  Their Honours went on:

   ‘Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children.  The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter.  Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed.  As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process.  Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.  Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future.  In some cases, it may also be necessary to consider child protection issues.’

1. It is difficult to see how any issue could be taken with any of that.  More problematic is the summary that follows of relevant criteria for making interim decision, at least from paragraph 21:

   ‘20.Firstly, having regard to the provisions of s.65E, in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration.

21.Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues.  Accordingly, as a general rule, any interlocutory order made should promote that stability.

22.Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary.  Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.

23.Fourthly, the Court is entitled to place such weight upon the importance of retaining the child’s current living arrangements as it sees fit in all the circumstances.  In determining what weight to place upon that factor, it is appropriate for the Court to take account of the circumstances giving rise to the current status quo.  In particular, the Court may examine the following issues:-

·   whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.

·   whether the current arrangements have been unilaterally imposed by one party upon the other.

·   the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.

24.Fifthly, where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s.68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child’s best interests.  In undertaking that evaluation, regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (supra). 

25.Finally, in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:-

·   the wishes, age and level of maturity of the child.

·   the current and proposed arrangements for the day to day care of the child.

·   the period during which the child has lived in the environment.

·   whether the child has any siblings and where they reside.

·   the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.

·   the educational needs of the child.

1. Obviously there are the savings of ‘normally’ and ‘general rule’ and there is an overall rider reserving to the decision maker the question of weight to be given to the child’s current arrangement taking into account factors that might have precipitated the ‘status quo’.  But essentially Cowling guides the reasoning process towards a best interests outcome at the interim stage by starting from the position that best interests will normally be met by ensuring stability and generally interim orders should promote that stability.  The path then diverges according to whether the child is in well settled circumstances or not, with various considerations [some are s 68F(2) factors] being relevant to that conclusion.  On the well settled path, it will generally be best to continue the arrangement unless there are overriding considerations related to the child’s welfare to the contrary; if not well settled, some limited evaluation of the s 68F(2) factors needs to be undertaken.  Whether or not the legislation made it necessary in both sets of circumstances to undertake some limited evaluation of those factors need not be discussed.  Yet however sound this approach and whatever the practicalities given the necessarily limited nature of an interim hearing, I cannot see it as consistent with the law as it now stands. 

1. There is some common ground between the earlier provisions and those recently introduced.  In establishing the setting for the making of parenting orders, Part VII maintains an overriding child focus.  The child’s best interests remain the paramount [not sole] consideration and while considerations relevant to the position of parents are not irrelevant, either then or now, the child’s best interests prevail in any contest.  Before and post 1 July, the child is the universal child of no particular age or stage of development, of neither gender, and with no particular capacities, culture or life circumstance; hence the broad discretion conferred by Part VII, then and now, to allow the child to be identified and their wider context to be evaluated.  The best interests outcome might vary along the span from an order providing for no time to be spent (contact) with one parent or for no communication with that parent to an order providing for the child to spend time equally between both parents.  The recent amendments give no indication a decision anywhere within that span is not within contemplation when the particular child replaces the universal one.  What has changed is the evaluation material and methodology; importantly, the obligation to follow a prescribed reasoning path to arrive at a best interests decision. 

1. This is no discussion of the many and far reaching amendments to Part VII and what follow picks up only the core provisions of more direct relevance here:

   (i)Objects and underlying principles, being standpoints from which the provisions of Part VII are to be applied, are retained though re-drafted.  This includes the addition of an object: ensuring children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent, though subject to consistency with best interests [s 60B].  Best interests remain the paramount consideration in making a parenting order [s 60CA] but how best interests are to be determined - the mix of factors that must be considered [as earlier, the language is mandatory] - are divided into ‘primary’ considerations [one of which almost but not entirely replicates the new object just mentioned] and ‘additional’ considerations [s 60CC] with further elaboration of paragraphs 60CC(3)(a), (c), (h), and (i) in s 60CD and sub-sections 60CC(4), (4A), and (6). 

   (ii)To this point it might fairly be said that the 1 July amendments brought changes to the content of similar earlier provisions but not to the structure of approach they established; thus to this point the Cowling guidelines established at appellate level might be said to remain authoritative. 

   (iii)But in my opinion the changes from there on are too fundamental to sustain their application.  Central to this is the imposition by s 61DA of a presumption about what constitutes best interests; namely, it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.  The presumption does not apply if there are reasonable grounds to believe a parent [or someone living with a parent] has engaged in child abuse or there is family violence and it may be rebutted by evidence satisfying the court it would not be in the child’s best interests for the parents to have equal shared parental responsibility.  But, importantly, it is specifically expressed to apply when making an interim order ‘unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order’.  The application of the presumption – including to interim decisions unless not ‘appropriate’ - has consequences related to the reasoning process that must be employed thereafter.  This is a radical departure from the provisions applied at the time of Cowling and the earlier cases approved there. 

   (iv)The power given by s 65D to make such parenting order as is considered ‘proper’ is now subject to the presumption in s 61DA [and 65DAB].  Even so, the ultimate goal was and remains to arrive at a best interests outcome.  But if the presumption applies, the decision maker is obliged by s 65DAA to consider certain outcomes.  First, whether the child spending equal time would be in the best interests of the child [ie consider that outcome on an evaluation of the s 60CC best interests factors] and whether that is reasonably practicable [ss(5) elaborates]; if so, consider making that order.  Secondly, if an order to that effect is not made, there is an obligation to consider whether the child spending substantial and significant time [ss(3) elaborates] would be in the best interests of the child [again, consider evaluation of the s 60CC factors leading to that outcome] and whether that is reasonably practicable; if so, consider making that order.  Absent express direction, presumably those outcomes must only be considered if a parent is seeking one fitting either description, for obvious reasons.  If the presumption does not apply, for reasons permitted, whether the proceedings are interim or final, the decision maker moves directly to an evaluation of best interests according to the mix set out in s 60CC without the obligation to consider those specific outcomes. 

   (v)It can be noted incidentally that provision is made for the allocation of parental responsibility in an interim order to be disregarded when making a final parenting order [s 61DB], with the result that at the final hearing the evaluation process begins once more at the presumption, its application or exclusion must be determined, and the prescribed reasoning path to a conclusion follows accordingly. 

   (vi)The starting point of a presumption about parental responsibility, and the reasoning path that flows from its application or exclusion, has no place in the legislation up to 1 July and the guidelines Cowling established take no account of either the presumption or the consequences of its application.  To say, in effect, that stability equals best interests where a child is seen to be in well settled circumstances is to sidestep the presumption about best interests imposed by s61DA, which plainly applies to interim hearings; to ignore consideration of whether it would be ‘appropriate’ to exclude the presumption at the interim stage; and to avoid the obligation, if not excluded, to consider outcomes of equal time or substantial and significant time [assuming someone is asking for either] before coming to a conclusion about what would be a ‘proper’ parenting order consistent with the child’s best interests.  That says nothing of the possible impact of the changes to the objects in s 60B and the introduction of the ‘primary’ considerations in s60CC directing how best interests are to be evaluated. 

   (vii)To conclude, the mandatory application of the presumption to interim decisions [unless not ‘appropriate’] and the consequential reasoning path alone, without any of the other changes, mean the Cowling guidelines have no continuing relevance as presently discussed.  That is not to say stability derived from a well settled placement could not be or should not be a key factor in making an interim decision – it can be considered under paragraphs s 60CC(3)(d) and (m) and weighed with others - it is more that the law does not now permit the reasoning path to a best interests conclusion on an interim hearing as discussed in Cowling. 

   (viii)As I see it, guidelines directed to interim decisions are necessary - containment of itself is sufficient reason as interim outcomes understandably assume more importance the longer the delay to final hearing - but they now need to be redeveloped to fit within the new legislation.  That includes taking account not only of the provisions mentioned so far, including the ambit of ‘appropriate’ in s 61DA(3), but also of the approach now prescribed by Division 12A for conducting child related proceedings. 

2. In the meantime, I take the view that the presumption of equal shared parental responsibility must be the starting point, consideration must then be given to whether it is not appropriate to apply it [when, as I see it, regard can be had to the nature of issues raised and the limited scope of the evidence], there has to be some evaluation of the best interests factors in s 60CC [in circumstances of limited or incomplete and untested evidence weight can be given, for example, to issues related to stability and change through paragraph (d)], and if the presumption is not excluded the conclusion must have made its way through the possible outcomes discussed in 65DAA. 

Background

1. The parents began living together in October 1988, after a period of separation they married in May 1998, and they separated finally in October 2005. 

1. The father (43) is self employed as an engineer and currently works as a consultant to a firm located about 10 minutes drive from where he lives.  He says his hours are flexible and there is no specific requirement for his attendance at the workplace during specific hours.  He says he can structure his work arrangements to suit J’s needs.  He continues to live at the family home.  The mother (38) is working three days per week.  Since early November last year she has lived with her parents. 

1. Last year J attended pre-school two days per week but this year that has increased to three days per week - Wednesdays, Thursdays and Fridays - the same days his mother works.  His maternal grandparents take him to pre-school and collect him in the afternoon and care for him until his mother’s return from work. 

Care history

1. There is a deal of evidence from both about the arrangements for J’s care after his birth, to be found in the parents’ affidavits and summarised in the decision of the Judicial Registrar.  Suffice to say here it presents a history of the mother being the parent who was responsible most of the time for his day to day care, but nonetheless a history of the father being available and involved throughout to the extent he was able, save for absences out of Australia in 2003 for work purposes.  With the flexibility his work allowed, on occasions he worked from home.  In late 2003 or early 2004 the mother resumed part time work two days a week and J was cared for by his father on those days.  Around February 2004 the father began working five days a week and when both parents were working the maternal and paternal grandparents stepped in and saw to J’s needs.  Some months later, towards the middle of 2004, the mother worked an extra day a week and the father reduced his commitments to four days a week.  They each cared for J on their days off and weekends.  There was another change in 2005 when J started at pre-school.  His father had Wednesdays off and cared for him then and his mother had Thursdays and Fridays off and cared for him during those days.  That arrangement was in place at the time of their separation in October. 

1. At that point they reached an agreement whereby one parent would occupy the family home and care for J for part of each week.  The father was at the home caring for him from Sunday to Wednesday and the mother returned to care for him for the remainder of the week.  They each lived for part of the week with their parents in C or G respectively.  But there was an incident in early November and this arrangement came to an end.  That is the point at which the mother remained living at her parents’ home.  The occasion and the events surrounding it are set out in some detail in the affidavits.  Another agreement was the result, though the father says with reluctance on his part, whereby J spend each Wednesday on his day off with his father as well as some time each weekend: on one weekend from Saturday evening to Sunday evening and on the other from Friday evening until Sunday evening.  The arrangement was largely suspended over the Christmas holiday period: the Wednesday with his father continued and otherwise J spent some time with him at Christmas as well as two one week periods in January.  The father says he had an expectation the prior arrangement would resume after the holidays but that did not happen.  Instead, another regime was put in place whereby J was cared for by his father from Friday afternoon after pre-school until 5pm Sunday each alternate weekend.  He had J in his care for a week during school holidays in April and July.  Again the father says this was implemented with reluctance on his part, involving as it did a reduction of his time with J and increasing, as it did, the period J would not see him at any time from 3 to 12 days.  For a while he attended J’s preschool on the Friday preceding the weekend J would not be with him in an effort to break the lengthy absence but this ceased after objection from the mother citing disruption and interference with J’s day. 

1. There were ongoing discussions through solicitors in an effort to resolve differences but that did not happen.  Ultimately on 31 March the mother filed an application seeking final orders for property settlement and parenting orders, this was followed on 3 July by the father’s application for interim parenting orders, and that was the situation that came before the Judicial Registrar on 7 August. 

1. The orders of 7 August recorded the parents’ consent to interim arrangements for J’s care during school holiday periods and on other occasions. The orders otherwise provided for J to live with his father each alternate weekend from the after pre-school (or later school) on Friday until 5pm Sunday and on alternate Wednesdays from after pre-school (school) until the commencement of pre-school the next day. Standing back and looking at the pattern thereby created for J, those orders contemplate J sleeping arrangements in a fortnightly cycle to be F2 M3 F1 M8 and so on.

Orders sought

1. In his application to review, the father proposes a fortnightly cycle: in the first week J would be with him from Wednesday after pre-school/school to Monday morning, in the second week with him from Wednesday after pre-school/school to Friday morning, and at all other times he would be with his mother.  The mother, on the other hand, would retain the orders of 7 August in the first instance but in the alternative would have the time spent with his father limited to alternate weekends from Friday after pre-school to Sunday 5pm and the Wednesdays would not be overnight but from after pre-school to 6.30pm. 

1. The submissions for the mother point out that the orders of the Judicial Registrar largely reflect an arrangement in place since February.  The child is doing well under that arrangement, he has an established routine which includes spending every second weekend time with his father and he is going to pre-school three days a week.  The father’s proposals would bring about a radical departure from the current arrangement and there is no indication of any need for change.  Change would disrupt the stability of the settled arrangement and create a risk to the child’s well being, which should not be taken until there is an assessment of the situation by an expert.  To further support that outcome, emphasis is placed on the fact that the mother has been the primary carer from birth, in which the father participated ‘to a degree’ though for ‘significant’ periods he was absent from Australia and left her to be solely responsible for J’s care.  It is likely, therefore, that J’s primary bonding and attachment is to his mother.  It is also submitted that the father has a hostile attitude towards the mother, apparent from his conduct at separation, in early November, and on changeovers and he has been insensitive to the effect of his conduct on J. 

1. The submissions for the father, on the other hand, emphasise his involvement in J’s care since his birth.  He also, not just the mother, structured his work commitments to be available to J.  Emphasis is placed on the history going further back than the February arrangement, more particularly to the 17 months or so prior to separation.  While he was absent overseas in 2003, he has not been away since.  Moreover, the post separation arrangements from November were not of his making or choice and he attempted, properly, to resolve differences through negotiation.  It is submitted there is no evidence to support an inference that the child’s bonding and attachment to his mother would be superior to that with his father and there is no evidence that increasing time spent with his father in school term time would impose any risk to J.  On the contrary, the care history would support equal time being in his best interests because he has had available two active and involved parents.  At the least there should be substantial and significant time with his father, as defined by the Act to include not just weekends but week days.  Finally, there could be no finding of hostility on the father’s part to preclude the adoption of the proposal he puts forward. 

Objects, principles, primary and additional considerations

1. Against that brief account of the background and summary of submissions, I come to the matters Part VII require be considered, albeit in a limited fashion having regard to the untested and incomplete evidence available at this point and the lack of any assessment from the perspective of a Family Consultant about matters relevant to best interests. 

1. I bear in mind the objects as expressed in s 60B, the more relevant to this case being: ensuring children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with best interests.  I also bear in mind the underlying principles, save if contrary to best interests, of children having the right to know and be cared for by both their parents; children having a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and parents jointly sharing duties and responsibilities concerning the care, welfare and development of their children. 

1. In assessing best interests, I have regard to the primary consideration more relevant to the circumstances here: the benefit to the child of having a meaningful relationship with both parents.  Turning to the additional considerations, on the limited and untested evidence, what may be said follows:

(a) any views expressed by the child …and any factors …. relevant to …weight

1. There is no evidence of J’s views about his parents’ proposals or any alternative arrangement.  Nor could it be expected at his tender age there would be.  There is brief mention of it in the mother’s affidavit evidence, but apart from that passing reference neither parent puts a case to suggest their son is expressing views that ought to be accepted or given weight. 

1. J just turned 5 years of age last week and appears to be a healthy, happy child from all accounts - at least there is nothing presented that would cause any concern about his development or well being in the broader sense.  He has been attending pre-school for almost two years now, it is implicit in the parents’ evidence that he is thriving in that preparatory environment, and it is very likely he is well positioned to start his primary schooling next year.  At his age and stage of development, his pre-schooling is an important commitment for him from several perspectives and there should be the opportunity to maximise his enjoyment of it with a minimum of disruption or disturbance. 

(b) the nature of the relationship of the child with..parents..and other persons…

1. It is argued for each parent that the history allows an inference to be drawn about J’s attachments.  It may be in due course there is sufficient to make a finding of a more secure attachment to one parent or the other, but for now it si probable J is attached to each parent.  The quality or strength of that attachment is for later assessment.  It is highly likely his parents are the most important people in his life and, whatever the strength of those relationships, there is nothing to suggest he has anything other than a good relationship with each parent. 

1. He has lived in the home of his maternal grandparents for some time now which at his age may seem quite a long time.  They are involved in his weekly routine and obviously have an important role in seeing to his pre-school arrangements and generally to his care at times neither parent is available.  It is likely he has a close relationship with them.  Certainly nothing has been raised to the contrary, nor is there any indication of impairment in those relationships. 

1. Fortunately for J his paternal grandparents have also been involved in his life.  They seem not to have been as intensely involved more recently, but they did have a role in his day to day care when the marriage was intact and both parents drew upon family for support with child care.  It can be assumed J has a good relationship with them also.  It seems likely his opportunity for spending time with them now arises during times he spends with his father. 

(c)the willingness and ability of each …to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. The father says the arrangements post November last year have not been of his choice and that may well be so.  Certainly there has been a gradual reduction in the contact between J and his father.  Whether that has come about for sound reason or not is for another time, but there could be no finding here on what has been presented to date about any unwillingness or inability on the mother’s part to facilitate J’s relationship with his father. 

(e) the practical difficulty and expense of …spending time with and communicating with a parent and whether that …will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This is of no particular relevance here.  The parents presently live about 20 minutes driving time apart. 

(d) the likely effect of any changes in the child’s circumstances….

1. The arrangements of 7 August have now been in place for about two months but as the history shows there have now been several arrangements over the past 12 months since separation.  The case argued for the mother, as noted, is that the father’s proposals represent a significant change to what has been in place for some time and there are risks associated with making such a change at this stage.  The case argued for the father, on the other hand, is that his proposals represent a return to the initial arrangement on separation and would reflect the degree of his involvement for some time prior to the separation. 

1. There is a natural caution about introducing change for a young child because stability through a familiar day to day routine is generally important for young children.  The upheaval inherent in change of routine and in coming and going between houses can be disruptive and unsettling, not to mention the difficulties that may present for a child who has to cope with inconsistencies in routines or rules established or permitted in two different households.  Stability, therefore, is an important consideration, particularly at this interim stage when contemplating proposals that would bring about change to what is now in place.  By the same token, some change might be necessary so as to improve arrangements to allow the child the opportunity for meaningful involvement by two competent parents while the case makes its way towards final hearing or resolution.  If change is made, obviously that would be done in the expectation the child would very likely settle into the proposed routine and derive more benefit from it. 

(f)        the capacity …. to provide for the needs of the child, including emotional and intellectual needs;

1. the attitude to the child, and to the responsibilities of parenthood…..

1. It appears from the position taken here that the mother firmly believes J’s best interests require that he spends significantly more time within the ambit of her care than in his father’s.  It also appears from the position taken by the father that he believes J’s best interests require more time to be spent in his care.  These positions do not rest on allegations of incapacity by the other to provide for their son’s needs or on the proposition that the other lacks an appropriate attitude towards their parental responsibilities, though no doubt if asked they would each locate their position somewhere between ‘good’ and ‘better’. 

1. In saying that, it is acknowledged that in her evidence the mother raises the father’s conduct around the time of their separation, she outlines her version of the event at the family home and following in early November, and on changeovers.  If there is any substance to it, plainly it would be better for J for the situation to move to more constructive ground.  But there can be no finding about that now; the opportunity will present later for further enquiry.  For now, I proceed on the basis that neither parenting capacity nor parental attitude are inhibiting factors in assessing J’s best interests for the more immediate future. 

(j)        any family violence …..
(k)       any family violence order ….

1. Violence is not an issue in this case. 

(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;

1. This is of no particular relevance at this stage on what has been presented or argued. 

(m)      any other fact or circumstance that the court thinks is relevant.

1. The factors relevant to the evidence have been mentioned already.

Conclusion

1. Returning first to the presumption of equal shared parental responsibility, it is necessary to consider whether it should apply at this interim stage.  Just what factors will operate to determine if is appropriate to exclude it will be developed in due course.  But one factor might be the limited and untested evidence available at the interim stage.  Here, the evidence has been limited to that given by the parents and as yet there is no report from a suitably qualified expert which all expect will contribute to the best interests assessment.  That might be a reason in some cases to exclude the presumption, but this is not such a case.  I say that because a related factor relevant to the decision to exclude it might be the nature of the unresolved issues raised in the evidence.  Here, there are unresolved issues that cannot be the subject of findings now, but they are not of the kind that should operate to exclude shared parental responsibility.  In my view, the presumption should apply at this stage. 

1. Consequently, as the father seeks such an arrangement, it is necessary to consider equal time, though not necessarily order it.  But I am not satisfied that arrangement, or some other configuration of it, would be in J’s best interests at this stage.  It is necessary then to consider J spending substantial and significant time with each parent and I am satisfied this would be consistent with his best interests.  My reasons in both instances follow but rest on a review of the history of J’s care since birth, on taking account of J’s age and stage of development and his attendance at pre-school preparatory to starting school next year, on taking account of the current work and other commitments of both parents, and on the preliminary assessment of both parents as capable and committed.  To those facts I have brought the object and primary consideration mentioned earlier.  Despite some reluctance to bring about change for a young child who is apparently settled, I have come to the view that some change is necessary so as to allow some further involvement by his father, which I regard as more likely to benefit J.  

1. J has had the advantage of active involvement by both parents since his birth, to one degree or another, though for the past year (almost) at the very least he has been primarily in his mother’s care and living at his maternal grandparents home.  Presumably that is an environment to which he is accustomed and there is no question of it representing a risk to his general well being.  Quite properly, he is committed to attending pre-school three days a week and they coincide with the days his mother works - Wednesdays, Thursdays and Fridays – when his maternal grandparents are available to step in and assist accordingly. 

1. What should be maintained without any significant disruption is the established routine surrounding his attendance at pre-school on the days both parents are working and not directly available in any event, which is a routine that operates from his mother’s house and involves both of his grandparents.  Setting aside those days from the fortnightly routine, there remain four days at either end of his weekly attendance and, in my assessment, those are times that should be spent largely equally in the care of each of his parents, subject to a relatively short afternoon visit in his father’s company in the intervening period.  Of course next year J will be at school five days a week and not three, but once this routine is established for the remainder of this year there is no reason not to retain it once he starts school.  In fact there are likely benefits for him in doing so.  

1. I see that arrangement being implemented by the father collecting J after pre-school (school) on Friday afternoons and returning him to his mother’s home by (say) 6pm Tuesday.  A return at that time will allow J to participate in the evening routine in place at his mother’s, to prepare for pre-school (school) the next day, and set off from there the next morning as usual.  It will mean J would spend four full days and four nights each fortnight with his father, time I assume the father would be able to take advantage of to the fullest extent by reason of his flexibility and ability to organise his work accordingly.  The other four days between pre-school attendances, beginning the following weekend, would be spent with his mother who would not be working - and of course J would be in her household during his pre-school days while she is at work.  Next year things will change and he will be at school five days a week and not three.  But a continuation of the arrangement outlined would allow his father, as well as his mother, to be involved in taking him to school and picking him up and seeing to the many arrangements surrounding that.  If things were left at that, ten days would pass between the block times J spends with his father and that seems quite long for a young child of this age.  As I see it, the gap could be bridged without any interruption to the time spent with his mother by a short period on the intervening Friday afternoon for a couple of hours.  That could also be continued next year after he starts school. 

1. I see this arrangement having advantages.  It will enable J to get on with the present routine which is suited to his age and stage of development, now at pre-school and later at school, with the support and assistance of both parents and his grandparents.  There will be less changing from one household and environment to the other.  It will enable him to spend more time with his father, not only nights but whole days, assuming his father does organise his work accordingly.  It allows each parent to be actively involved in his day to day routine and upbringing to the extent that is practicable given their current circumstances.  It is also an arrangement that will give J a measure of stability in the overall balance of all relevant considerations and, as best I can assess it, is one that is consistent with his best interests at this stage. 

Expert’s report

1. The Judicial Registrar declined to take up the proposal for a psychiatrist, Dr M, to prepare a report.  In my opinion, he was right to do so.  There is nothing about this case that calls for the expertise on offer from a psychiatrist.  The Family Report ordered on 18 August is entirely suited to the issues presented in this case and the expertise available from a Family Consultant. 

School - 2007

1. Finally, there is the question of which school J is to attend next year which, regrettably, has not been resolved by the parents.  The mother proposes the G Primary School near to where she is now living with her parents.  The father proposes either K Primary or O Public School, both closer to his residence. 

1. A map indicating location and proximity of these schools to their current residences was tendered.  Geography is not the only issue raised and, while it is a factor to consider, it could not be the sole arbiter.  That is because the longer term living arrangements of each parent is not yet known and that is unlikely to be certain until their property settlement has been resolved and they have settled living circumstances.  Assuming the father retains the family home, which is his intent, the schools he proposes are certainly more proximate to his residence than the mother’s proposal.  The mother’s choice is proximate to her parents’ home but she will inevitably move from there and while she says she will remain in the area, it is not known where that will be.  The feasibility or practicability of any of the schools proposed, considering proximity to residence, is an unknown at this stage. 

1. Another relevant consideration would be the outcome of the final parenting proceedings and the time J will spend at each of his parents’ homes and the apportionment of his tem between them.  It seems reasonable to think, all other things being equal, that it would be better for J to attend the school more proximate to where he is spending most of his time.  But again, that cannot be evaluated at this stage. 

1. The arguments include propositions about the benefit to be gained for the child attending one school or the other and considerable information published by schools has been provided to urge that view.  The mother has put her argument fully on these and other points in a letter from her solicitors dated 13 June 2006 [annexure JW14 to her affidavit].  But without some particular context or individual issue to be evaluated, it is neither possible nor desirable to make general pronouncements about the quality of schools proposed to lead to a conclusion one is superior to the other. 

1. Nor can the decision rest on considerations of one school rather than the other being the feeder school for later attendance by J at high school in the area.  It is said there was agreement about the school he would later attend for his secondary schooling but that is now disputed. 

1. In the final analysis, the decision has come down to considering J’s circumstances to be put in place now and for the immediate future in the period leading up to the final hearing, if not resolved in the meantime.  Those circumstances locate him for more of the time in his mother’s present residence at G and in my opinion his interests would be better served by attending the local G Public School to begin his schooling at the start of next year. 

1. For those reasons, the orders will be:

2. Orders 1 (a) and (b) of the orders made 7 August 2006 are discharged and in lieu of those arrangements the following will apply:

   (a)Until further order, the child J is to live with his father during school terms in a fortnightly cycle as follows:

   (i)each alternate week from after pre-school (or school) Friday to 6pm Tuesday;

   (ii)on the Friday following return on Tuesday, from after pre-school (or school) to 6pm.

3. The application to review order 4 made 7 August 2006 is dismissed.

1. In the absence of any agreement of the parents to the contrary, the child is to be enrolled to attend the G Public School from the beginning of the 2007 school year. 

   I certify that the previous 51 paragraphs are a true copy of the judgment delivered by the Honourable Justice Moore. 

   Associate: