WAINDER & WAINDER

[2009] FamCA 1253

FAMILY COURT OF AUSTRALIA

WAINDER & WAINDER [2009] FamCA 1253

FAMILY LAW - CHILDREN - Parental responsibility - Mother and father to have equal shared parental responsibility for the child
FAMILY LAW – CHILDREN - With whom a child lives - Child to spend gradually increasing amount of time with the father building up to a week about arrangement in two years time

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Wainder

RESPONDENT: Ms Wainder

FILE NUMBER: PAC 616 of 2008

DATE DELIVERED: 18 December 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Parramatta

JUDGMENT OF: Justice Austin

HEARING DATE: 24 & 25 & 26 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Coleman & Greig

COUNSEL FOR THE RESPONDENT: Ms Hausman

SOLICITOR FOR THE RESPONDENT: York Family Law

Orders

1. The mother and father shall have equal shared parental responsibility for the child B, born … October 2007 (“the child”).

2. The child shall live with the father as follows, or as otherwise agreed:

   2.1      Until 30 June 2010:

   2.1.1Each alternate weekend from 9.00 am Saturday until 6.00 pm Sunday, commencing on the first Saturday following these orders; and

   2.1.2Each week from 6.00 pm Friday until 9.00 am Saturday, commencing on the second Friday following these orders.

   2.2      From 1 July 2010 until 31 December 2010:

   2.2.1Each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday, continuing the fortnightly cycle established by Order 2.1.1; and

   2.2.2Each week from 6.00 pm Thursday until 6.00 pm Friday.

   2.3      From 1 January 2011 until 1 January 2012:

   2.3.1Each alternate weekend from 6.00 pm Thursday until 6.00 pm Sunday, continuing the fortnightly cycle established by Order 2.2.1; and

   2.3.2Each week from 6.00 pm Wednesday until 6.00 pm Thursday.

   2.4      From 1 January 2012:

   2.4.1Each alternate week from Friday 6.00 pm until the following Friday 6.00 pm, commencing on the second Friday after the conclusion of the last period of time spent under Order 2.3.1.

3. The child shall live with the mother at all other times not prescribed by Order 2 hereof.

4. Orders 2 and 3 hereof are suspended during the following periods:

   4.1From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.

   4.2Between 10.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

5. For the purposes of implementing these orders, the father or his nominee shall collect the child from the mother’s residence at the commencement of the periods of time when the child is to live or spend time with him, and the mother or her nominee shall collect the child from the father’s residence at the conclusion of the periods of time that the child has lived or spent time with the father.

6. Each party shall take all reasonable steps to ensure that the child communicates with:

   6.1The father, each Tuesday when the child is living with the mother, between 6.00pm and 6.30pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.

   6.2The mother, each Tuesday when the child is living with the father, between 6.00pm and 6.30pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time.

7. Neither party shall denigrate or insult, or allow any other person to denigrate or insult, the other parent or the other parent’s relatives or friends to or in the presence, sight or hearing of the child.

8. Each party shall, whilst the child is in their care:

   8.1 Notify the other as soon as possible of any serious illness or injury suffered by the child;

   8.2In the event of the child being prescribed medication, or a particular form of treatment, which is required to continue into a period when the other parent will be caring for the child, send any medication or materials required for treatment with the child to the other parent, together with a description of the condition for which it is required and the appropriate dosage and treatment.

9. Each party shall notify the other of the name, address, and telephone number of the child’s treating doctor and sign any authority the other may provide so as to authorise that doctor in writing to release to the other particulars of the child’s health or treatment at any time requested by them.

10. Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

11. The parties shall continue to maintain a communication book to facilitate communication between the parties in respect of issues related to the child and each party shall relay important information concerning the child to the other by way of written notification in the communication book, which will travel with the child at change-overs.

12. Both parties shall forthwith enrol themselves to commence, participate in, and complete a post-separation parenting program, subject to the approval of that program by the Family Consultant.

13. Each party is restrained from permitting the child to refer to any person other than the biological parents by use of the terms “Mum” and “Dad”, and like terms, respectively.

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

15. Any and all outstanding applications are dismissed.

16. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 616 of 2008

MR WAINDER

Applicant

And

MS WAINDER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in these proceedings are at odds with respect to the parenting orders that should be made in respect of their child, B, born in October 2007 (“the child”).

2. The parties separated on 17 March 2007, before the child was even born.  Following the birth of the child the parties were unable to agree upon the time that would be spent by the child with the father and so proceedings were commenced by the father filing an Initiating Application on 7 February 2008.  The parties have remained in dispute ever since, although the ambit of their dispute has now narrowed.

3. The father has always sought allocation of equal shared parental responsibility in respect of the child to him and the mother.  Until the commencement of the final hearing, the mother had always maintained that parental responsibility for the child should be allocated solely to her.  On the morning of the trial, the mother’s position changed so that she too sought the allocation of equal shared parental responsibility. So far as the parties were concerned then, there was concurrence about the allocation of equal shared parental responsibility.

4. The Family Consultant retained concerns about the poor communication between the parties and the effect that may have on their ability to co-operatively discuss and determine major long-term issues in the life of the child. Nevertheless, the Family Consultant made no recommendation about the allocation of parental responsibility, and when appraised of the parties’ agreement about parental responsibility she did not advocate against an order reflecting the parties’ mutual position.

5. As for the child’s residential arrangements, the father initially sought that the child live with him and spend significant (but undefined) time with the mother.  At the time the father’s Application was filed in that form, the child was barely four months of age.  The father subsequently filed an Amended Initiating Application on 13 October 2009 proposing a graduated progression of the time to be spent by the child with him, culminating in a regime of equal time within 12 months of the final hearing. During the trial, the father tendered a Minute of Orders setting out his alternate positions, which document became Exhibit F7.

6. The mother’s position has been similarly fluid.  She filed her Response on 11 April 2008 proposing orders that the child live with her and only spend supervised time with the father at a contact centre on occasions not less frequently than once per month, commencing with an initial visit period of only 30 minutes.  The mother’s position remained unchanged until the morning of trial when she tendered a fresh Minute of Orders, which document became Exhibit M1. On the morning of the second day of trial the mother filed an amended Minute of Orders, which document became Exhibit M2.

7. The mother maintains her position that the child should live predominately with her, but she now proposes a regime of gradual escalation in the time spent by the child with the father.  Her proposal in Exhibit M1 was so graduated that the child did not begin to spend overnight time with the father until January 2013, and the regime never progressed beyond a point where the child spent time with the father on alternate weekends and during a portion of the school holidays. The mother’s revised proposal within Exhibit M2 accelerates the escalation of time spent by the child with the father, but it still falls considerably short of the rate of graduated escalation proposed by the father.

8. It is common ground that the child is bright, happy and healthy, that both parents love her dearly, and that the child is securely attached to both of them.

9. Neither party has adduced any evidence alleging that the other constitutes a risk of harm to the child.

10. The mother makes no allegations of family violence against the father.  Although the father does make some allegations of the mother having inflicted violence upon him, those allegations were all but ignored by the parties during the trial.  The father has not overtly contended at any point that those isolated episodes of violence in the past should influence the outcome of the proceedings in any way. 

11. Having regard to the state of the evidence, it is difficult to perceive precisely why the parties held such divergent views about the future residential arrangements for their child. The matter therefore proceeded to trial with the parties pressing quite disparate proposals, despite there being very little underlying factual conflict.

12. As the mother’s counsel poignantly observed at one point, this case is really about how much time the child should spend with the father, and how quickly that should occur.

13. In exploring those issues, the general themes of the hearing became the mother’s attempt to exert control over the residential arrangements affecting the child, and whether the mother’s conduct either deliberately or inadvertently impeded the development of a meaningful relationship between the child and the father.

Documents read in evidence

1. In support of his Amended Initiating Application filed on 13 October 2009, the father read the following affidavits:

   a)Affidavit of the father filed on 13 October 2009;

   b)Affidavit of the paternal grandmother, filed on 13 October 2009; and

   c)Affidavit of the paternal grandfather, filed on 13 October 2009.

2. During the course of the hearing, the mother elected not to cross-examine either of the paternal grandparents.

3. Although the mother abandoned reliance upon the restrictive regime of orders set out within her Response filed on 11 April 2008, in rebuttal of the father’s position, and in support of her own revised proposal, the mother read the following affidavits in evidence:

   a)Affidavit of the mother filed on 15 October 2009;

   b)Parenting Questionnaire filed by the mother on 28 October 2008; and

   c)Affidavit of the mother’s current partner, Mr N, filed on 15 October 2009.

4. Evidence was also adduced from the Family Consultant in the form of her Family Report dated 12 November 2009, upon which she was cross examined by both parties.

Background history

1. The applicant father was born in 1979.  At the time of hearing he was aged 30 years.

2. The respondent mother was born in 1981.  At the time of hearing she was aged 28 years.

3. The parties commenced cohabitation in January 2004.  They were married in 2005.  The parties’ relationship broke down in early February 2007 and as a consequence they began occupying separate bedrooms within the former matrimonial home.  The parties are disagreed about the precise date that that event occurred, but the disparity is immaterial.

4. The parties ceased living under the one roof when the father departed the former matrimonial home on 17 March 2007.

5. The breakdown in the parties’ relationship coincided with the mother learning of her pregnancy.  The parties are in disagreement about the reason for the disintegration of their relationship, but that too is immaterial.

6. Upon the birth of the child the parties’ relationship remained fractious.

7. The child was born in October 2007.  At the time of hearing, the child was barely aged two years.

8. On the day of the child’s birth, the father received a text message from a relative of the mother informing him of the birth.  The father attended the hospital to see the child, but ultimately did not do so.  He alleges that he was thwarted by the mother.  Irrespective of whether that is true, the father was unable to see the child until several weeks later on 3 November 2007, following upon the mother’s request of the father to meet with her for the purposes of signing the child’s birth certificate. The mother agrees that the father did not see the child until 3 November 2007.[1]

   [1] Mother’s affidavit, para 8(a)

9. The father engaged solicitors to correspond with the mother in order to implement a regime of interaction between himself and the child, because his own efforts to see the child had proven fruitless.  Those solicitors wrote to the mother on 23 November 2007.[2] On the evidence adduced by the parties, the mother failed to respond to that request. 

   [2] Father’s affidavit, para 21.

10. The mother concedes that, apart from the visit on 3 November 2007, when the birth certificate was signed, the child spent no time with the father until 16 June 2008.[3]

    [3] Mother’s affidavit, para 8(b)

11. By reason of the mother’s failure to respond to the father’s overtures about the child spending time with him, he took steps to file his Initiating Application seeking parenting orders on 7 February 2008.  The mother’s Response was filed on 11 April 2008.

12. The father sought both interim and final parenting orders. The matter therefore came before the Court on 14 April 2008 for interlocutory determination.  On that occasion, interim orders were made as follows: 

    (1)That both parties are hereby restrained from relocating the child [B] born […] October 2007 outside the Sydney Metropolitan area without the prior written consent of the other party.

    (2)That the child shall live with the mother.

(7)That on a without admissions basis the husband only shall spend time with the said child at the [P Contact Centre] (“the Centre”) for one hour in May 2008 on a date and time allocated by the Centre.

(8)That only the mother is permitted to remain in a separate area of the Centre during the time the husband spends with the child.

(9)That each of the parties shall within 3 days of today’s date contact the director of the [P] Contact Service and attend any intake assessment as directed by the Centre and the husband and wife shall each pay any cost associated with the visit equally.

(12)That the husband’s Application filed 7 February 2008, seeking interim orders be listed for hearing on 16 June 2008.

1. Thereafter, the matter came back before the Court on successive occasions over the remainder of 2008, resulting in further interim parenting orders.

2. On 16 June 2008, the following interim orders and notations were made:

   (1)That the child [B] born […] October 2007 shall live with the wife.

   (2)That the father shall spend time with the child at the [P Contact Centre] each week on Tuesday from 9:30 am to 11:30 am and Saturday from 9:30 am to 11:30 am with the parties to share the cost equally.

(3)That the proceedings be adjourned to consider further interim arrangements to 10 November 2008 at 9:30 am.

NOTED

(4)That the parties be guided by [the Contact Centre] as to what time the father shall spend with [the child] after November including supervised time away from [Centre].

(5)That the mother shall provide a note to [the Centre] containing any special dietary or routine requirements of the child so as to assist the father in caring for the child.

(6)That the father’s time referred to in Order 2 hereof shall commence on 21 June 2008.

1. On 10 November 2008, the following interim orders were made:

   (1)That the Orders made on 16 June 2008 be varied as follows:

   (a)That the father shall spend time with [B] born […] October 2007 as follows:

   (i)Each Tuesday from 10:00 am until 12:00 noon at the [P Contact Centre], the parties to share the costs equally until the subsidised rate becomes available.

   (ii)Each Saturday from 10:00 am until 1:00 pm with changeover to occur at the [H Contact Centre], the father to bear the costs.

(iii)On Christmas Eve, 24 December 2008, from 2:00 pm until 5:00 pm.

(b)For the purpose of the father spending time with the child on Christmas Eve, 24 December 2008, and on any other day that the relevant Contact Centre is closed the maternal grandfather shall deliver the child to the father’s residence and collect the child from the father’s residence.

(c)It is noted that for the purpose of the father spending time with the child pursuant to Order 1(a)(i) above it is intended that the [P] Contact Centre shall be the venue but that the father’s time with the child need not be supervised by the centre staff if either of the paternal grandparents are present or, if they are not present, the centre staff need only monitor the father’s time with [the child].

(d)That both parties will forthwith do all things necessary to arrange for changeover to take place at the [H] Contact Centre on Saturdays.

(2)It is noted that the father wishes these orders to be reviewed at the LAT Intake Hearing on 23 January 2009.

(3)It is further noted that the father shall ensure any vehicle he transports the child in will be fitted with an age appropriate child restraint which complies with the legal requirement.

(4)It is noted that when the father spends time with the child away from the Contact Centre that during his time with [the child] one or both of the paternal grandparents shall be present.

(5)That the parties shall utilise a communication book.

1. On 23 January 2009, the following interim orders and notations were made:

   (1)All prior parenting orders be discharged.

   (2)The child shall live with the father during the following periods:

(i)Each Monday from 9:30 am to 12:20 pm commencing Monday, 2 February 2009.

(ii)Each alternate weekend from 10:00 am to 3:00 pm on Saturday and Sunday commencing 31 January 2009, until the end of May 2009.

(iii)From 10:00 am to 1:00 pm for the father’s birthday on 7 February 2009.

(iv)Any other time agreed between the parties.

(v)Between 10:00 am and 1:00 pm on each of Saturday 24 January and Tuesday 27 January both times at the father’s home.

(3)The child shall live with the mother at all other times.

(4)It is noted that the father continues to reside with the paternal grandparents.

(5)The mother shall deliver the child at the commencement of the father’s time and shall collect the child at the conclusion of his time, and if the mother cannot attend for good and sufficient reason she shall make alternative arrangements with the father to collect the child.

(8)From June 2009 the child’s time with the father shall be extended on each alternate weekend to 4:00 pm on Saturday and on Sunday.

(9)The parties shall review these orders upon the child attaining two years of age.

1. Up until that point in time, the mother and the child had continued to live within the former matrimonial home situated in an outer western suburb of Sydney.  At some point in time shortly following the interim orders being made on 23 January 2009, the mother informed the father of her intention to move with the child to the northern suburbs of Sydney.  The mother had by then formed a relationship with her current partner, Mr N, and they wished to purchase an apartment in that suburb.

2. Following separation, the father had lived with the paternal grandparents in another western suburb.  The father perceived that the mother’s change of residence with the child to the northern suburbs of Sydney would potentially impinge upon the time spent by the child with him and he was therefore opposed to her move. The parties exchanged correspondence about that issue through their solicitors in March 2009,[4] but their disagreement was not resolved.

   [4] Father’s affidavit, Annexures R, S

3. The father’s opposition to the mother’s change of residence resulted in him filing an Application in a Case on 9 April 2009, in which Application he sought orders restraining the mother’s relocation with the child to a place more distant than 25 kilometres from his own place of residence.  The father’s Application was dismissed on 18 May 2009.

4. Despite the pending Application, the mother and child had already moved with Mr N to the northern suburbs some days before on 16 May 2009, which the mother was then entitled to do by reason of Order 1 made on 14 April 2008. 

5. The mother and child now continue to live with Mr N in the northern suburbs, and the father continues to live with the paternal grandparents in the western suburbs.

6. Although the mother concedes assuring the father that the extra distance between the parties’ households would not impinge upon the time spent by the child with the father, that has not proven to be the case.  The mother admits having encountered difficulties in her punctual compliance with the interim parenting orders.  She also now asserts that the requirement for her to undertake all of the travelling to implement the time spent by the child with the father has become too burdensome, even though she previously insisted that the responsibility for travel be hers alone.

7. The parties, the child, and other relevant adults participated in interviews with the Family Consultant during October 2009, which resulted in the preparation of a Family Report dated 12 November 2009.

8. The father’s filing of his Amended Initiating Application on 13 October 2009 coincided with his participation in interviews with the Family Consultant.  He significantly modified the regime of parenting orders he proposed in that document. Although the father still presses for the orders set out within his Amended Application, he advocates for the alternative positions set out within Exhibit F7.

9. The mother too reconsidered her position in this litigation following her interviews with the Family Consultant.  At the time of filing of her affidavit on 15 October 2009, the mother asserted that she would amend her proposal for parenting orders following upon her reading of the Family Consultant’s recommendations contained in the Family Report.[5] She has since done that twice over, by proposing the parenting orders set out within Exhibits M1 and M2.

   [5] Mother’s affidavit, para 51

10. The revision by the parties of their positions in light of the evidence indicates that their attitudes continued to evolve during the course of the hearing.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).

5. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Best interests of the child – primary considerations

Section 60CC(2)(a)

1. The child undoubtedly enjoys a meaningful relationship with the mother, who is the primary attachment figure for the child.  It is acknowledged that the relationship between the child and the mother ought be permitted to continue to flourish.

2. Similarly, despite the child having spent a much lesser period of time with the father during her short life, the child enjoys a meaningful relationship with the father.  The mother readily acknowledged that the child loves, and has a good relationship with, both the father and the paternal grandparents. The father also readily agreed with that fact when it was put to him in cross examination.

3. Although the mother has asserted that, since about March 2009, the child has demonstrated a degree of reluctance to separate from her and spend time with the father,[6] her evidence is inconsistent with the observations of the Family Consultant. Nor, she agreed, is her evidence borne out by the records of the P Contact Centre, where the child’s time with the father was supervised for a period during 2008 pursuant to interim orders.

   [6] Mother’s affidavit, paras 30-32

4. The Family Consultant found that the child did not have any difficulty in separating from the mother,[7] and that the child interacted keenly with both the father and paternal grandparents. When the child first saw the father in the Family Consultant’s playroom, her body trembled with excitement, she smiled, addressed the father as “Daddy”, and went directly to him.[8]  When the mother announced her departure the child did not react.[9]  The father and the child were observed to interact well as they played and chatted.[10] 

   [7] Family Report, paras 22 and 40

   [8] Family Report, para 25

   [9] Family Report, para 25

   [10] Family Report, para 26

5. When they were later introduced into the session, the child hugged the paternal grandparents and played happily in their presence, laughing and squealing with delight.[11]  At the conclusion of the session the child happily kissed, hugged and bid goodbye to the father.[12]

   [11] Family Report, para 30

   [12] Family Report, para 31

6. The Family Consultant remarked that throughout the observation session there were no signs at any stage that the child was unhappy in the company of the father or paternal grandparents, or that she pined for her mother.[13]  The Family Consultant concluded that the child’s enjoyment and delight in being with her father was evident[14] and that the child demonstrated that she had an extremely good relationship with the father considering the limited time that she had spent with him.[15]

   [13] Family Report, para 33

   [14] Family Report, para 33

   [15] Family Report, para 37

7. As is the case with the relationship between the child and the mother, orders need to be made which will ensure that the existing meaningful relationship between the child and the father continues to flourish.

Section 60CC(2)(b)

1. Neither party alleges that the child is at any risk of any physical or psychological harm in the care of the other.

2. In the written submissions prepared on behalf of the mother, the mother expressly disavows that the statutory considerations falling within the embrace of s 60CC(2)(b) are a feature of this case.

3. Although the father makes allegations that he was assaulted by the mother on occasions during the period between March 2006 and the parties’ separation in February 2007, those alleged incidents pre-date the birth of the child. The mother denies such allegations of violence. Even if the allegations are truthful and accurate, the child was not exposed to any of those incidents. The father is clearly not now fearful or apprehensive of physical violence at the hands of the mother. I am not even satisfied that he was reasonably fearful or apprehensive at the time, in which case the incidents do not meet the definition of “family violence” found within s 4 of the Act.

4. I accept the mother’s submissions that there are no issues of family violence or abuse which influence the outcome of these proceedings.

Best interests of the child – additional considerations

Section 60CC(3)(a)

1. The child has only just turned two years of age.  It is trite to observe that the child is too young to express any view about the parenting orders which will affect her life.

Section 60CC(3)(b)

1. Each of the parties concedes that the child has a positive relationship with each parent and each set of grandparents.

2. The mother also asserts that the child has a positive relationship with her current partner, Mr N, whom she intends to marry within the next few months.  The father does not contend to the contrary.

Section 60CC(3)(c)

1. I find on the evidence that the father has a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the mother.

2. The mother concedes that the father has obeyed the interim parenting orders, and that he has on occasions amicably swapped with the mother time that the child was to spend with him in order to suit the mother’s convenience. The mother also concedes that the father has occasionally agreed to undertake some of the travel with the child, which responsibility would otherwise have been borne solely by the mother pursuant to prevailing orders. There is no evidence to suggest that the father has undermined the relationship between the child and the mother in any way.

3. The Family Consultant is mildly critical of the father in relation to his original Application seeking orders that the child live with him, filed in February 2008, when the child was barely four months of age.[16]  Arguably, the filing of an Application in that form did demonstrate a lack of insight on the part of the father, in that it failed to recognise the importance of the relationship that then existed between the child and the mother as the figure of primary attachment.

   [16] Family Report, para 37

4. On superficial analysis, that act tended to demonstrate an unwillingness to facilitate the relationship between the child and the mother.  However, it must be remembered that the father filed the Application seeking those orders in circumstances where the mother was, in all probability, actively thwarting any interaction at all between he and the child.  The father’s personal requests of the mother for the child to see him had been rebuffed, and the request made of the mother by the father’s solicitors had been ignored.  The father said that he only started the case because the mother would not allow him to see the child. The father’s allegations in that regard were not challenged, and the mother concedes that the child was not seeing the father at all at that time. Understandably, the father must have been aggrieved with the attitude then being demonstrated by the mother.

5. From the time of filing her Response until the commencement of trial, the mother refused to countenance anything other than the child spending extremely restrictive time with the father and, at least initially, only then when subject to supervision at a contact centre. There is no evidence that would justify such a restrictive attitude to the relationship between the child and the father. Whatever criticism might be levelled at the father for lack of insight demonstrated by his original Application, the mother is liable to no less criticism for the lack of insight demonstrated by the position adopted by her in her Response.

6. The father has maintained his claims for the child to spend increased time with him, and he has reached consensual arrangements with the mother at Court events from time to time. The Amended Application most recently filed by the father recognises the need for the child to continue living predominately with the mother for another 12 months, with a continued escalation in the regime of time spent by the child with him over that period.  On the father’s primary proposal, the child will have attained the age of three years before his proposal for equal time is implemented. It could not be fairly suggested that the father’s position is unreasonable, or that it does not promote the relationship between the child and the mother.

7. The willingness and ability of the mother to facilitate a close and continuing relationship between the child and the father, on the other hand, is not so clear cut.

8. The mother says that she recognises the necessity of the child maintaining a relationship with the father. She has continued to undertake all of the travelling with the child in order that her relationship with the father subsists, which does objectively demonstrate some level of commitment. But there are some aspects of the evidence which cast doubt upon the mother’s willingness to promote the relationship between the child and the father.

9. The father harbours a belief that the mother’s conduct has frustrated the development of the child’s relationship with him. His opinion has vacillated as to whether the mother’s conduct is deliberate. In his affidavit the father implies a belief that it is intentional,[17] and when he spoke to the Family Consultant he believed it was deliberate,[18] but when he was cross examined he said that he was unsure.

   [17] Father’s affidavit, para 61

   [18] Family Report, para 13

10. The father points to numerous examples of the mother’s conduct which lead him to conclude that the child’s relationship with him is liable to corrosion, including:

    a)The mother’s relocation of residence with the child from the outer western suburbs of Sydney to the northern suburbs of Sydney;

    b)The mother’s continued practice of breastfeeding the child, despite the child’s age, which tends to militate against the child spending overnight time with the father;

    c)Repeated episodes of the mother failing to deliver the child to the father punctually in accordance with interim orders;

    d)Repeated episodes of the mother failing to deliver the child to the father at all, ostensibly on the basis that either the mother or the child is unwell.

    e)The mother’s apparent encouragement of, or at least her consent to, the child referring to her partner Mr N by the name “Dadda”, which ought be a name reserved exclusively for the biological father.

11. Each of those aspects of the evidence deserves closer analysis.

12. The mother and child moved with Mr N to the northern suburbs from the outer western suburbs on 16 May 2009.  The mother accepts that she assured the father that the change of residence would not curtail the time spent by the child with the father pursuant to the interim parenting orders made on 23 January 2009. It seems from the transcript of the hearing of the father’s interlocutory application on 18 May 2009, tendered as Exhibit F8, that the mother gave no such express assurance to the Court, but an assurance of that sort is reasonably implied from the submissions made to the Court by the mother’s lawyer.

13. The mother agreed in cross-examination that whilst she resided in the former matrimonial home in the outer western suburbs, she did all of the travelling at her insistence.  She agreed that the father had offered to share the travelling but that she declined his offer because she did not feel comfortable about the child travelling with the father.  She did not elaborate in her evidence as to why she felt that way. Whatever her reasons, she wanted to control the travel arrangements.

14. The father alleges that since the mother has moved to the northern suburbs he has offered to share the travelling with her so as to implement the time spent by the child with him, but only on condition that the travelling time then incurred by the father is not counted as part of the time that the child spends with him.  He alleged that the mother has been unwilling to share the travelling on that condition. The father was not challenged about those allegations and I accept his evidence.

15. Before the relocation, the mother’s entrenchment in the western suburbs was readily apparent.  She and the child lived in the former matrimonial home in the western suburbs, of which she had become the sole legal proprietor as a consequence of property adjustment orders made between the parties.  The home in which the mother and child lived was in very close proximity to the home of the maternal grandparents, who play a significant role in the life of the child. In particular, the maternal grandmother cares for the child whilst the mother attends her part-time employment.  The mother’s part-time employment is located relatively close to her former residence.  The father lived with the paternal grandparents in another western suburb, which was also close by, and the child spends time with them on four separate days each fortnight.

16. In those circumstances, the father wonders about the mother’s motivation to relocate her residence to a place so far distant from the milieu of the working and social lives enjoyed by her and the child in the western suburbs of Sydney.

1. The mother did not explain her motivation for the relocation in her affidavit. That was investigated during her cross examination. The mother’s only explanation is that she did not wish to live with her new partner in the same household that she had formerly shared with the father. Whilst that may explain a relocation from that particular house, it still does not adequately explain the need to move so far away. As for the northern suburbs as a destination, the mother glibly states that she thought the educational opportunities for the child would be superior on the north shore of Sydney. Given that the child is barely two years of age, and the mother’s concession that she made no inquiries of other educational institutions in closer proximity to the former matrimonial home, I do not find that a convincing explanation.

2. The mother’s new partner, Mr N, was formerly living with his parents in the northern suburbs of Sydney, but there is no obvious reason why the place of residence of Mr N’s parents ought dictate where the mother, child, and Mr N lived.

3. In submissions, the mother’s counsel observed that the father could not be heard to complain about the mother’s relocation because he delayed the institution of proceedings to restrain the mother from relocating until 9 April 2009, when he was aware that the northern suburbs was the mother’s preferred destination from some time in February 2009. The mother’s counsel implied initial acquiescence by the father.

4. The father in fact admits knowledge of the northern suburbs as the preferred destination from as early as January 2009.[19] But I do not find on the evidence that the father unequivocally agreed or acquiesced to the mother’s move to the northern suburbs. Were it otherwise, what was the need for the mother’s formal notification of that plan through her solicitor’s letter dated 17 March 2009?[20] The father moved with reasonable haste to confirm his opposition to the move by his solicitor’s letter dated 26 March 2009[21] and the filing of his interim application on 9 April 2009. The mother was still living in the former matrimonial home in the western suburbs when those things occurred.

   [19] Father’s affidavit, para 55

   [20] Father’s affidavit, Annexure R

   [21] Father’s affidavit, Annexure S

5. The father suspects that the move may have been designed to put distance between the households of the child and the father.  I am not satisfied on the evidence that the mother was so spitefully motivated, but I do infer that she wanted to live with Mr N on the north shore for personal reasons and did not care what ramifications that held for the child and the father.

6. The father’s fears about the tyranny of distance have been realised. A complaint made by the mother in these proceedings is that the distance between the two households is too great for her and the child to maintain compliance with the existing interim parenting orders.  Implicitly, the mother now concedes the validity of the father’s concerns expressed to both her and the Court when he opposed the mother’s relocation.

7. The Family Consultant reported that the father was unwilling to consider changing his own residence to move closer to the current residence of the child,[22] but the father explained that situation in his evidence.  Rather than being unwilling to move to the north shore of Sydney, the father says that he is simply unable to do so for financial reasons.  I accept the evidence of the father in that regard. The Family Consultant was asked about that in her cross examination and she agreed that she believed that the father’s predicament was financially based.

   [22] Family Report, para 38

8. The Family Consultant reports that the father perceives that the mother persists in breastfeeding the child so as to delay his plans to have the child stay overnight with him.[23]  The mother was cross examined about her continued practice of breastfeeding the child, but she maintained that her motive was genuine. 

   [23] Family Report, para 13

9. The Family Consultant said that the child does not require breastfeeding for either nutritional or emotional reasons. She commented upon the practice as follows[24]:

   “It is generally accepted in child rearing practices in a western society that a child by the age of two would not need breast milk for nutrition.  [The child] was observed to be active and healthy on both occasions of the assessment and was observed to enjoy eating.  However, in terms of emotional development, a child at age two years should be given the opportunity to learn to be comforted, or to be settled at night by other means of soothing than suckling at the breast.  It is reasonable for [the father] to question whose needs were the breastfeeding served (sic)”

   [24] Family Report, para 39

10. The Family Consultant was not challenged about those opinions.

11. Although the mother professed reliance upon peer advice and practices of an organisation described as the “Breastfeeding Association” to justify continuation of the breastfeeding, she did not adduce any evidence to rebut the opinions of the Family Consultant.

12. The mother conceded that the child had been bottle fed from as early as nine months of age, and that the child now heartily ate solid food and drank easily from a cup. The mother also conceded that she intended to cease breastfeeding the child by the age of three years, and begin weening the child from now until the child attains that age. The mother therefore proposes ten months of weening, even though the Family Consultant says it can be accomplished in weeks.

13. Whatever the mother’s motivations, whilst ever she continues to breastfeed the child it will be an obstacle to the child spending overnight time with the father.  I accept the evidence of the Family Consultant that there is no longer a need for the child to be breastfed for either nutritional or emotional reasons.  To the extent that continuation of the breastfeeding impedes a proper amount of time being spent by the child with the father, the breastfeeding practice will need to yield.

14. The mother conceded that she had experienced trouble in delivering the child to the father at the times required by the interim parenting orders.  On numerous occasions, the mother reported to the father by mobile telephone that her arrival at his home with the child had been delayed by traffic or road works.  The father gave evidence about several such specific incidents occurring on Saturday 29 August 2009,[25] Monday 31 August 2009, [26] and Monday 14 September 2009.[27]

    [25] Father’s affidavit, para 88

    [26] Father’s affidavit, para 89

    [27] Father’s affidavit, para 93

15. During the mother’s cross-examination, the father tendered the Roam Tolling E-tag account records of the mother pertaining to the period between 2 May 2009 and 2 October 2009, which became Exhibit F3.  That period encompasses each of the three specific dates mentioned above. The significance of the mother’s Roam Tolling records is that they record the times of her habitual use of the M2 and M7 toll roads as her routes of travel between her residence and those of the father and maternal grandparents. 

16. The only reasonable inference to be drawn from the mother’s Roam Tolling records on the three specific dates nominated by the father in his evidence is that the mother encountered no real traffic delays on those toll roads.  The mother was distinctly uneasy when confronted with those records, and the apparent inconsistency between those records and the content of the messages she had conveyed to the father alleging her delays in traffic. The evidence of her messages to the father was accurate. The mother did not dispute it.

17. It follows, on the balance of probabilities, that the mother’s messages to the father on those dates about the reason for her delayed delivery of the child were untruthful. She could not have been mistaken, because she must have been aware at the time that she was in transit sending the contemporaneous text messages to the father informing that she was delayed in traffic, that she was not delayed in traffic.

18. The mother’s delay was not caused by traffic congestion. So much is evident from the times that she entered and departed the toll roads, recorded in Exhibit F3. In the absence of any other plausible reason advanced by the mother, I consequently infer that the mother had no good reason for not delivering the child to the father punctually on those occasions.

19. She was compelled to admit that on one of those occasions she stopped to visit her mother. Whatever the reasons for her delay, the mother concedes that on numerous occasions she has not complied with existing orders.  She has often failed to deliver the child to the father punctually, despite her conceding the need for her diligent compliance with the orders.

20. Apart from lack of punctuality, I am also left with a sense of disquiet about the mother’s failure to ensure implementation of the child’s time with the father on other occasions at all. 

21. The father tendered a 2009 calendar as Exhibit F1. It was marked by him with those dates upon which the child ought have spent time with him pursuant to interim orders, and those dates that the child actually did spend time with him.  There is a pronounced disparity between those two sets of dates.  The child, for one reason or another, failed to spend time with the father on many occasions. Except for two specific dates over the 2009 Easter weekend, the mother admits the accuracy of the exhibit.

22. Exhibit F1 discloses 14 separate occasions upon which the child has failed to spend time with the father within the last three months alone. There were many more occasions extending back over earlier months.

23. The mother alleges that some of those more recent failures are attributable to a serious illness suffered by the child in the form of a respiratory tract infection, which she contracted on or about 18 October 2009, and which lasted for up to three weeks.  I accept the mother’s evidence that the child was indeed ill and consulted numerous doctors in relation to that particular condition. That seems clear from the medical certificates comprising Exhibit M5. But even so, that is only a partially satisfactory explanation, because it only accounts for eight missed visits. The mother does not explain the many other occasions upon which the orders were breached, other than to simply say that either she or the child was too unwell to travel to the father’s home.

24. That explanation was facile, given that the mother conceded that many of those instances were not verified by either medical visits or certificates. The father’s position was that, even if the child was feeling unwell, if she was not so unwell as to require medical attention, he was as well equipped to deal with the child’s transitory illness as the mother.

25. The mother expressly denied that she had taken the child to the maternal grandmother’s home on any day that the child was due to spend time with the father, after having told the father that the child was too ill to attend upon him. She was then starkly contradicted with one example on Monday 10 August 2009.

26. On that date the child was required to spend time with the father under the interim orders, but she did not do so. The mother told the father by telephone that morning at around 8.30 am that the child was too ill to visit him, and that she would provide him with a medical certificate.[28] The mother did procure a medical certificate in apparent verification of the child’s illness, which was tendered as Exhibit M6. It curiously reads as follows:

    “…[The child] was seen at this practice today…and will be unable to attend to her usual duties from 10/08/2009 to 10/08/2009 inclusively.”

    [28]  Father’s affidavit, para 85

27. The mother’s Roam Tolling records[29] show her to have used the M2 toll road between 11.36 am and 5.31 pm that day on the route that she would ordinarily take to visit her own mother. The mother was compelled to admit that she did in fact visit the maternal grandmother with the child in her company between those hours on that day.

    [29]  Exhibit F3

28. Notwithstanding the medical certificate that the mother obtained, the child was well enough to be driven from the northern suburbs to the western suburbs to visit with the maternal grandmother that day for nearly six hours. There can be no doubt that she was therefore well enough to visit with the father in the same vicinity for three hours.

29. The mother’s deceit on that occasion is patent. She lied to the father on that day when she told him that the child was too unwell to visit with him. Even if her evidence in cross examination was not a lie, because she did not advert to the incident when asked a broad question, her evidence on the issue was still false. The mother’s evidence must be regarded with caution.

30. The mother’s commitment to the child spending make-up time with the father is also demonstrably poor.

31. The father alleges that he has requested make-up time with the child on numerous occasions, both personally and through correspondence written on his behalf by his solicitors, but that his requests have been ignored. 

32. Tendered in evidence as Exhibit F2 was a collection of correspondence between the parties’ solicitors covering the period between 12 June and 29 October 2009.  The subject of that correspondence was make-up time between the child and the father.  The mother’s solicitors failed to reply to the father’s solicitors requests for make-up time in a timely fashion.  When the mother’s solicitors did reply to the father’s solicitors, such as in their letter dated 31 July 2009, the mother’s solicitors simply observed:

    “The orders do not require our client to give make-up time in the circumstances of [the child] and our client being ill”.

33. That is indeed true, but it hardly reflects well on the mother’s commitment to promotion of the relationship between the child and the father to hold to such a technical and rigid view in the face of so many missed visits with the father.

34. More recently, in a letter dated 2 October 2009, the mother’s current solicitors make reference to the prospect of swapping times – but swapping time is to be distinguished from making up the time of which the child and the father have already been deprived.  As was pointed out by the father’s solicitors in reply, by way of letter dated 29 October 2009, the mother’s solicitors did not make any proposal concerning make-up time between the child and the father.

35. The mother asserted in evidence that she had offered some make-up time to the father directly, but that he had refused her offer. Her evidence is inconsistent with the tenor of the correspondence of the parties’ lawyers comprised within Exhibit F2, and in the absence of corroboration, I do not accept the mother’s evidence about that. Unlike the father, for reasons already explained, the mother tended to be an unreliable witness.

36. I comfortably conclude that the mother has little, if any, interest in facilitating or permitting the child to spend make-up time with the father for episodes of non-compliance with parenting orders. 

37. Even if the incidents of missed time occur for genuine reasons, the mother’s disinclination to countenance make-up time calls into question her willingness to facilitate and encourage a close and continuing relationship between the child and the father.

38. There is evidence that justifies an inference that the mother has been promoting the relationship between the child and her current partner, Mr N, in a way that has a tendency to impinge upon the relationship between the child and the father.  The mother volunteered to the Family Consultant that the child referred to Mr N as “Dadda”.[30]  The father gives evidence of witnessing that occur.[31] The Family Consultant considered that the mother perceived Mr N to be more of a father to the child than the father, and that the child had a closer relationship with Mr N than the father.[32] During her evidence the mother said that the child referred to Mr N as “Dadda [N]”.

    [30] Family Report, para 15

    [31] Father’s affidavit, para 67

    [32] Family Report, para 35

39. On any view of it, those are dangerous developments.  The child should clearly understand that her father is the biological father and not Mr N.  It reflects poorly upon the mother and Mr N that they would permit that parental relationship to be blurred.

40. Despite all of that evidence, it was submitted by the mother’s counsel that the fact that the child continues to enjoy such a positive relationship with the father is testament to the mother facilitating and encouraging the development of that relationship. That is the utmost favourable inference that could be drawn from the evidence. While I do not find that the mother has actively sabotaged the relationship, in light of the evidence to which I have adverted, I am not satisfied that she has utilised her best efforts to facilitate and encourage it.

Section 60CC(3)(d)

1. The Family Consultant observes that the mother has been the child’s primary carer for the last two years and that any precipitous changes in the child’s routine would likely cause her some distress.[33]  The father has not argued to the contrary.  He proposes that the child continue to live with the mother and spend time with him on a gradually increasing basis over the next 12 months. He wants change, just not precipitous change.

   [33] Family Report, para 37

2. On the evidence adduced, the child will not be disturbed by any separation from the mother pursuant to a regime of time spent by her with the father, even if that shift in time away from the mother occurs at a more accelerated rate than desired by the mother.

3. The child, according to the Family Consultant, appears intellectually and emotionally advanced for her age. She interacts well with all of her close relatives. Despite the mother’s comments to the contrary, the child exhibited no separation anxiety. The Family Consultant was of the view that overnight time could be introduced within weeks, when the child is weened.

Section 60CC(3)(e)

1. The mother’s decision to relocate her residence with the child to the northern suburbs  has brought with it some practical difficulty and expense in the child spending time with the father.  The difficulty and expense is not insurmountable, but it still makes arrangements inconvenient.

2. The mother is unhappy about the amount of travelling she is required to undertake in order to comply with the interim parenting orders, to which she agreed in January 2009.

3. That disenchantment arises from the fact that the child is not presently spending any overnight time with the father, which means that the mother is required to undertake two return journeys from her home to the father’s home on each of the four days per fortnight that the child spends time with the father.

4. The obvious way of ameliorating that problem is to implement overnight time between the child and the father and reduce the number of changeovers.  That will immediately reduce the number of return journeys required of the mother.

5. Requiring the father to share the travelling is another. That measure is not the subject of dispute. The parties mutually suggest sharing the travelling.[34]

   [34] Exhibit F7 Orders 6-7; Exhibit M2 Order 6

6. Both parties enjoy modest, but reasonable, financial circumstances and each party has access to a car.

7. The father’s employment does not pose an impediment to the child spending extended periods of time with him. He presently works from Monday to Friday inclusive, although he spends each Monday morning at home with the child. Currently, he takes incremental annual leave to cover the Monday mornings he spends with the child.

8. The father’s employer is, however, prepared to be sufficiently flexible to permit the father to work at home every second week to accommodate the father’s wish to have the child spend equal time in his household.[35] The mother is apparently sceptical. The father was cross examined about why he only had a confirmatory letter to verify that fact, and not an affidavit from his employer, but he was resolute about the reliability of his employer’s position. The father said that if his employer did not make good on that promise then he would terminate his employment and seek alternate employment that would accommodate such a residential arrangement with the child. He rated his relationship with the child in priority to his employment. I accept the father’s evidence about that.

   [35] Father’s affidavit, para 104, Annexure LL

1. The mother intends to remain employed in a permanent part-time position. She currently works two days per week and relies upon the maternal grandmother to care for the child whilst she is at work. The mother’s employment may not remain fixed at the western suburbs location. She is currently making inquiries about employment at other locations closer to her home.

2. As is the case with the mother and maternal grandmother, the father has the back-up support of the paternal grandmother.

Section 60CC(3)(f)

1. Each party readily acknowledges that the other has the capacity to provide for the needs of the child, including the child’s emotional and intellectual needs.

Section 60CC(3)(g)

1. There is nothing about the maturity, sex, lifestyle or background of the child or either of the parties which is relevant to the outcome of these proceedings.

Section 60CC(3)(h)

1. Neither the child nor the parties are Indigenous Australian.

Section 60CC(3)(i)

1. I find on the evidence that the father demonstrates a proper attitude to the child and to the responsibilities of parenthood.

2. The father enrolled in and completed a workshop entitled “Facing the Challenge: I am a Dad”, conducted by Uniting Care Burnside, in order to assist him with parenting a young child.[36]

   [36] Father’s affidavit, para 24

3. The father has recognised that the level of communication between himself and the mother is poor. He wishes that it would improve.  The father instructed his solicitors to write to the mother’s solicitors in November 2008 proposing that the parties participate in a counselling program in the hope of improving their communication.[37]  I infer, from the lack of evidence to the contrary, that the mother simply failed to respond.  That reflects poorly upon her attitude to the responsibilities of parenthood.

   [37] Father’s affidavit, para 44

4. The Consent Orders entered into by the parties on 23 January 2009 required the parties to attend upon a counselling course, nominated by the Family Consultant.  Pursuant to those orders, the Family Consultant referred the parties to a psychologist, Ms V.[38]  The father continues to attend upon Ms V, but the mother does not.

   [38] Father’s affidavit, para 64

5. The Family Consultant reports that the mother ceased her attendance after two sessions.[39]  The mother did not provide the Family Consultant with any reason for her discontinuation of the counselling with the psychologist.[40]

   [39] Family Report, paras 6 and 9

   [40] Family Report, para 18

6. During her cross examination the mother said that she stopped attending because the psychologist failed to book a third session for her. Even though the mother admitted that she expected to participate in more sessions, she sat idly by and failed to make further inquiries when she heard nothing more from the psychologist. The mother’s lethargy is even more surprising in light of her concession that she derived assistance from the two sessions that she did attend. I infer that the mother did nothing further about it because it suited her not to do so.

7. The mother’s failure to proactively avail herself of such counselling suggests that she is not committed to any improvement in the level of communication between the parties, which she accepts is quite poor. 

8. Ultimately, the poor level of communication between the parties was a central plank of the mother’s opposition to the child spending equal time with each parent, and to justify the very gradual increase in time spent by the child with the father. The mother deprived her own argument of serious weight by demonstrating so little interest in improving the quality of her interaction with the father. The mother cannot be reasonably heard to complain about the communication difficulties she experiences with the father if she is not prepared to commit to their rectification.

Section 60CC(3)(j)

1. The issue of family violence has already been addressed with respect to s 60CC(2)(b).  There is nothing to add.

Section 60CC(3)(k)

1. There is no family violence order in existence, nor has any such order existed in the past.

Section 60CC(3)(l)

1. The parties now jointly advocate a position that they be allocated equal shared parental responsibility for the child.

2. The mother concedes that the child should spend time with the father, without supervision.

3. The only remaining point of dispute between the parties is how much time the child will finally spend with the father, and how quickly the regime of time should escalate to that point.

4. I conclude from the narrowness of the argument that, whatever orders are made by the Court dictating the residential arrangements of the child, litigation is no more or less likely depending on whether the orders bear closer resemblance to the proposal of either party.

Parental responsibility

1. The presumption of equal shared parental responsibility is not displaced under s 61DA(2) in this case because there is no evidence of child abuse, and no material evidence of family violence.[41]

   [41] See paras 61-62 above

2. The presumption will therefore apply unless rebutted, pursuant to s 61DA(4), by reason of the best interests of the child requiring otherwise.

3. An orthodox view is that equal shared parental responsibility can only be allocated to the parents of a child if they are capable of co-operation.[42] It usually follows that if they cannot communicate civilly then they cannot calmly and rationally discuss the major long-term issues that affect the life of their child.

   [42] Family Report, para 38

4. Both parties in this case acknowledge that the standard of their communication is poor, but neither takes any responsibility for that predicament. Axiomatically, the responsibility falls to both of them.

5. Each party conceded that it would benefit the child if they could improve their communication. The father has shown a superior inclination to act on his sentiments. The mother is undoubtedly an intelligent person. She has the intellectual capacity and emotional maturity to improve her relationship with the father if she genuinely desires it.

6. Although they profess difficulties communicating with one another, their perceptions are not entirely consistent with the objective evidence. Their affidavits and some exhibits are replete with references to, and examples of, their written communication by text messages and in the communication book that they keep with the child. Some of their written comments to one another are intemperate, but not always so. There is no good reason why they cannot maintain communication principally in writing, which would include email, if that is a less confrontational method. The mother asserts that she is able to communicate effectively in a communication book.[43]

   [43] Mother’s affidavit, paras 36-37

7. Mr N volunteers that the father has been cordial to him,[44] which he confirmed in evidence was an experience he had had with the father on more than one occasion. The parties are both intelligent people. Mr N too seemed a reasonable man. The parties are just presently living in a state of heightened emotion, principally due to the uncertainty of outcome of the unresolved litigation.

   [44] Affidavit of Mr N, para 10

8. Notwithstanding their level of mutual distrust at this point, each party has petitioned the court to make an order allocating equal shared parental responsibility for the child to them. Both parties were capably represented. Such an order would not have been proposed inadvertently. The father has always sought such an order. The mother altered her position at trial to seek such an order, following consultation with her learned counsel. I infer that she only did so after reasoned consideration. The mother’s preparedness to compromise on that issue demonstrates a tendency to reasonableness.

9. In the circumstances I do not find that the best interests of the child demand rebuttal of the presumption and I will accordingly order the allocation of equal shared parental responsibility, as mutually requested by the parties.

Living Arrangements

1. Once equal shared parental responsibility is allocated to the parties, the Act posits an imperative of the child spending equal time in each household, or alternatively, substantial and significant time in the non-residential household, unless the child’s best interests dictate otherwise, or it is not reasonably practicable. The court is obliged to consider those two alternatives.

2. As was recognised in Goode & Goode (2006) FLC 93-286 (at 80,901), there is now a legislative intent evinced in favour of substantial involvement of both parents in their child’s life, both as to parental responsibility and as to time spent with the child.

3. The recommendation of the Family Consultant in the Family Report was that, once weened, the child could start to spend one overnight per week with the father over a period of six months, progressing to two overnights per week thereafter.[45]

   [45] Family Report, para 37

4. The Family Consultant’s recommendation as to the time spent by the child with the father into the future is at considerable variance from the proposals of both parties. 

5. Moreover, the regime of time to be spent by the child with the father as proposed by the Family Consultant does not meet the definition of “equal time”, and barely meets the definition of “substantial and significant time”, found in the Act.

6. The Family Report does not adequately explain why it is in the child’s best interests for the child not to enjoy the benefits of either of those concepts, nor the reasoning which lies behind the Family Consultant’s recommendation that the child’s time with the father start with one overnight stay per week and progress to, but stop at, two overnight stays per week. That was explored in her cross examination.

7. The Family Consultant agreed that she observed a very close bond between the child and the father, and that she had no concerns about the father’s ability to care for the child.

8. The Family Consultant believed that the only impediment to immediate introduction of the child to overnight time with the father was the continued practice of breastfeeding, which she considered was now only being used as an evening settling routine for the child rather than for nutritional purposes. The Family Consultant believed that the weening process should begin immediately, and that it would take several weeks to ween the child.

9. The Family Consultant initially stated that the overnight time spent by the child with the father should not begin until the weening process was complete, but she agreed that it was perhaps unnecessary to be as rigid as that after she was told of the admission by the mother that she had been away from the child overnight before and that the child had not needed the mother’s breast to settle for sleep.

10. The Family Consultant also agreed that the process of weening entailed refusal of the breast when desired by the child. The mother would then need to settle the child without the aid of a breast. The argument of the father is that for one night a week when the child would initially spend overnight time with him, he has no breast to offer her, and that he is otherwise as well equipped as the mother to settle the child. The logic is difficult to fault.

11. The Family Consultant was asked about the parenting orders proposed by the mother. She agreed that the introductory phase of time to be spent by the child with the father, as proposed by the mother, would not be detrimental to the child. But that is not the test the Court is required to apply. The Court is required to adopt a course which is in the best interests of the child, rather than adopt a course which merely avoids detriment to the child.

12. The Family Consultant asserted that it is important for the child to spend overnight time with both parents. It was implicit from the Family Consultant’s evidence that she regarded the mother’s proposal as introducing the overnight time for the child with the father at too slow a rate.

13. Conversely, the Family Consultant was of the view that the staged escalation in time to be spent by the child with the father, as proposed by him, occurred at too fast a rate.

14. The Family Consultant did not accept that the living arrangements for the child should ever escalate to the point that the child spends equal time in each household. It was clear that her reason for reaching that conclusion was that she presumed the parties to be entrenched in acrimony. It was not that she perceived any problem between the child and either parent. She said on more than one occasion in her evidence words to the effect of “the difficulties in this case are with the parents, not the child”.

15. There is no evidence to support a finding that the child will be deleteriously affected by a gradual increase in the amount of time she spends with the father. I find to the contrary. The gradually increasing time spent by the child separated from the mother is not likely to cause any disadvantage to the child.  The real questions to be determined are the speed of the escalation in time spent by the child with the father, and the amount of time ultimately spent by her with the father at its zenith.

16. The residential recommendation eventually distilled by the Family Consultant in cross examination was an arrangement where the child would spend five nights per fortnight with the father. She volunteered that five nights per fortnight was an arbitrary number.

17. The Family Consultant agreed that it was only her assumption that the parental conflict would not improve in future years that precluded her from recommending that the child spend more than five nights per fortnight with the father. She also agreed with the proposition that it is difficult to forecast the future. The Family Consultant did not profess any expertise that would imbue her assumptions about the future relationship of the parties with any more credence than any other person’s predictions about that.

18. For reasons already explained, I am not as pessimistic about the prospect of unmitigated parental conflict over the long term. It is true that the evidence does not permit an inference that the conflict will swiftly abate, but it must be remembered that the child is just two years of age. In view of the obvious intelligence of the parties, the evidence does not warrant an inference that their mutual distrust will endure unabated over the remaining 16 years of the child’s minority. There is room for cautious optimism that the parties’ relationship will improve once this litigation is behind them.

19. The recommendation of the Family Consultant, and the reasoning which provides its foundation, is difficult to reconcile with the principles now established by the Act.

20. An arbitrary fixation of five nights per fortnight for the child to spend with the father is an unconvincing recommendation when the reasoning process of the Family Consultant is refined to simply an assumption of continued acrimony between the parties. I am not satisfied that such a reasoning process supports a finding that the child’s best interests demand the arbitrary outcome recommended by the Family Consultant in lieu of equal time in each household, or substantial and significant time with the father.

21. The age of a child does not of itself determine whether a regime of equal or substantial and significant time is an appropriate outcome. Age is however a factor that will influence a determination about what regime best promotes a child’s interests, and what is practicable. The evidence in this case warrants a conclusion that the child spending equal time spent with each parent is an outcome that can be properly attained in due course, but that because of the child’s young age, that result should be reached through an introductory phase of the child spending substantial and significant time with the father. There is no evidence that reasonably leads to the conclusion that the child’s best interests justify some other outcome.   

22. Although the evidence is that the parties presently live in geographically distant parts of Sydney, and intend to continue doing so for the foreseeable future, that may not always be the case. Even if it is, both parties profess either part-time or flexible work arrangements, and each party has the assistance of members of their families of origin in attending to the child’s needs.

23. The parties will need to carefully consider the school at which the child will be enrolled in due course because of the distance between their present households, but that of itself is an insufficient reason at this stage to preclude an outcome of equal time.

24. The vexed question is the rate at which the change between the current parenting arrangements and the ultimate outcome of equal time should be implemented.

25. For reasons already discussed, the mother is not making her best endeavours to promote the relationship between the child and the father. Although the child presently enjoys a close and happy relationship with the father, there is a risk that the relationship will stagnate or wane if the process of implementation of a more balanced living arrangement moves too slowly.

26. The rate at which a more balanced living arrangement should be implemented must therefore strike a balance between swiftly increasing the time spent with the father to promote the child’s relationship with him, but slowly enough that the child’s sense of security is not undermined.

27. The evidence points to a conclusion that the child should begin spending overnight time with the child forthwith. By the time these reasons are published the mother will have already had a couple of weeks within which to begin weening the child. The process should be well advanced and nearly at an end.

28. The Family Consultant recommends the introduction of one overnight stay per week with the father as soon as the child is weened, and that after six months of that routine, the child’s time with the father can be increased to two overnight stays per week. That will equate to four overnight stays per fortnight after the elapse of six months. The orders I have made adhere to that recommendation.

29. For a further year, the orders introduce a fifth overnight stay per fortnight. That also accords with the numerical recommendation of the Family Consultant, although she did not recommend consecutive nights. The Family Consultant loosely recommended that the time be spread over the fortnight, but in circumstances where she regarded that as the final arrangement that would apply for the remainder of the child’s minority. The consecutive nights will enhance the child’s routine and be a more seamless introduction to the equal time regime which will follow.

30. The regime of equal time will be reached in two years time. By then it will be 2012. The child will have attained four years of age and will likely attend a pre-school with regularity that year. The parties anticipate that the child will begin school in 2013.

31. That escalating regime strikes a balance between the proposals of the parties. It initially follows the graduated introduction of the child’s time with the father recommended by the Family Consultant. Although the orders go further than recommended by the Family Consultant, I do not accept the rationale behind the Family Consultant’s arbitrary opinion that the child’s time with the father should be capped at five nights per fortnight.

Explanation of orders

1. The parties have equal shared parental responsibility for the child.

2. The orders gradually introduce the child to equal time in the household of each parent over a period of two years. In the meantime, the child will live predominantly with the mother.

3. Provision is made for the special occasions of Christmas Eve, Christmas Day, Boxing Day, Mother’s Day, and Father’s Day. The child will share those days with the parties equitably.

4. The parties are required to share the burden of travel. They agree to do so.

5. The child may communicate by telephone with the other parent when living with one parent for more than a few consecutive days.

6. Orders 7-11 inclusive were the subject of each party’s consent.

1. No orders are made restraining the parties’ relocation outside the Sydney metropolitan area, as was proposed by the father. That is because neither party has proposed to do so. Moreover, the parties have equal shared parental responsibility for the child. To the extent that one party proposed a relocation that would frustrate the operation of these orders, that party would be obliged to raise the matter with the other as an issue of parental responsibility.

2. Nor have I made any specific order in respect of school enrolment for the child, as sought by the father. That is also an issue that falls within the embrace of the parties’ equal shared parental responsibility.

3. I have ordered the continued use by the parties of a communication book to facilitate their communication concerning the child. Neither party solicited such an order, but the evidence is that they already use one. It is sensible that they continue to do so.

4. I have ordered that the parties undertake a post-separation parenting program approved by the Family Consultant. The father sought an order of that kind in respect of the mother, presumably because of her failure to proceed with the counselling already recommended by the Family Consultant with Ms V, psychologist. The evidence is silent with respect to the mother’s participation in any post-separation parenting program, except for her two sessions with the psychologist. Although the father has voluntarily undertaken a parenting course and continued to see the psychologist, it is important that he be seen by the mother to be subject to the same obligation as her. Equality will hopefully induce harmony. The Family Consultant can determine whether the course the father has already undertaken meets the definition of a post-separation parenting program.

5. Although no specific order to this effect was sought, I have ordered that the parties reserve names such as “Mum” and “Dad” for exclusive use by the child in respect of the biological parents. Despite some initial equivocation, the mother said that she would consent to an order that requires her to stop the child from referring to Mr N as either “Dadda” or “Dadda [N]”.

6. Orders 8 to 12 inclusive set out within the mother’s amended Minute of Orders (Exhibit M2) were abandoned by her. No such orders have been made.

7. For these reasons I am satisfied that the orders identified at the beginning of this judgment are in the child’s best interests.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  18 December 2009