WALDRON& JENNISON

[2011] FamCA 1092

FAMILY COURT OF AUSTRALIA

WALDRON& JENNISON [2011] FamCA 1092

FAMILY LAW – CHILDREN – Parental responsibility – whether the presumption of equal shared parental responsibility should apply – where parents are unable to cooperate and make decisions together – not in child’s best interests for the presumption to apply – presumption rebutted

FAMILY LAW – CHILDREN – With whom a child shall live and spend time – consideration of equal or substantial and significant time – where child had been spending substantial and significant time with the father – where both parents propose either equal or substantial and significant time – equal or substantial and significant time can be considered even though the presumption of equal shared parental responsibility does not apply – where both parents are committed to the child spending equal time with each parent – child wishes to spend equal time with each parent – order made for substantial and significant time increasing to equal time

Family Law Act 1975 (Cth), ss 60CC, 61DA, 65DAA

APPLICANT: Ms Waldron

RESPONDENT: Mr Jennison

FILE NUMBER: CAC 1870 of 2010

DATE DELIVERED: 2 June 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 2 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: A B Vincent

SOLICITOR FOR THE RESPONDENT: Nicholl & Co

Orders

1. Ms Waldron (the mother) have sole parental responsibility for the long term care, welfare and development of B (the child), born on … 2002. 

2. The mother will inform Mr Jennison (the father) about:

   (a)Any serious medical issues relating to the child.

   (b)The names of the child’s medical practitioners and any practitioners of a similar sort. 

   (c)Details about the child’s schooling and progress.

   (d)Any major events in the child’s life.

3. The mother will authorise and direct the following to provide information to the father about the child, upon his request to them:

   (a)The child’s school, his teachers and any counsellors at the school (subject to professional confidentiality).

   (b)The child’s doctors, dentists and any other medical professional, such information to include any diagnosis, treatment and prognosis, as the case may be, in respect of any health matters affecting the child from time to time. 

4. Notwithstanding that she is to have sole parental responsibility for the child’s long term care, welfare and development, the mother will nevertheless, so far as she is able to do so, consult and discuss with the father any major decisions affecting the child’s wellbeing. 

5. Each of the parents will have sole parental responsibility for the day to day care of the child during times that the child is with that parent.

6. The child will spend time with his father (subject to the qualification hereafter appearing):

   (a)Until the end of school Term 2 in the year 2012, and otherwise subject to these orders in relation to special days and school holidays, for six days each fortnight, such days to be agreed between the parents or to conform to the arrangements pertaining prior to the hearing of this matter on 1 June 2011. 

   (b)Notwithstanding the last mentioned order the parties may, if they are in agreement, seek to vary the arrangements up until the end of Term 2, 2012 by orders to be made by consent.  (It is contemplated such orders would bring forward arrangements for the child to spend half his time with each of his parents). 

   (c)At the end of Term 2, unless the parents otherwise earlier agreed, the child will spend, from the first Monday after the end of Term 2 holidays, alternately one week with one parent and the following week with the other parent (unless the parents otherwise agree). 

   (d)The child will spend one half of each school holiday with each of his parents subject to the qualifications set out hereunder.

   (e)For the holidays at the end of Terms 1 and 2, either parent may give to the other, one half a Term’s notice that that parent seeks that the child spend the whole of those holidays with that parent.  Subject to such notice being given that parent will have the child for the whole of that Term school holiday.  The other parent will have the child for the whole of the following school holiday. 

   (f)The Christmas school holidays will be spent (subject to the special arrangements about Christmas and New Year) on the basis that half of the holidays will be spent with each of the parents.  The parents will agree as to whether those arrangements will be on the basis of week and week about or several weeks at a time with one parent and several weeks with the other parent. 

7. The child will spend time with his parents on special days as follows:

   (a)In 2011 with the father from noon on Christmas Eve until noon on Christmas Day and with the mother from noon on Christmas Day until noon on New Year’s Day.

   (b)These arrangements will alternate each year between the parents so the mother will have the child from noon on Christmas Eve until noon on Christmas Day in the year 2012 and the father will have the child from noon on Christmas Day until noon on New Years Day in the year 2012.

   (c)The child will spend between noon and 4pm on Father’s Day with his father if that day falls on a time when the child would otherwise be with his mother.

   (d)The child will spend between noon and 4pm on Mother’s Day with his mother if that day falls on a time when the child would otherwise be with his father.

   (e)(i)      the child will spend from 9am on Good Friday until noon on Easter Sunday with the parent who is scheduled to have the child on that weekend in the year 2012.

   (ii)And from noon on Easter Sunday until 5pm on Easter Monday with the other parent in the year 2012.

   (f)(i)       the child will spend from 3:30pm on the night before the child’s birthday until 1pm on the day of the child’s birthday with his mother in the year 2012 and every alternate year thereafter.

   (ii)the child will spend from 1pm on his birthday until 9am on the following day with his father in 2012 and alternating each second year thereafter. 

   (g)The child will spend from after school or 5pm (whichever may be applicable) on the day before each of his parent’s birthdays until 9am or the beginning of school on the day after that parent’s birthday (whichever is applicable).

   (h)In relation to the time that the child might spend with either parent up to the end of Term 2 in the year 2012, if the time that the child is spending with either parent falls due to end on a Sunday and the following Monday is a public holiday then the time that the child spends with that parent will be extended to include the public holiday terminating at the same time as it would otherwise have terminated. 

   (i)If either parent wishes to take the child on holidays for a period longer than one week (other than in accordance with Order 6e) that parent must:

   (i)Provide a minimum of four week’s notice to the other parent.

   (ii)Provide the other parent with evidence of the purchase of return tickets if the holidaying parent and the child are travelling overseas.

   (iii)Agree and arrange for the other parent for a similar holiday period for the other parent during the same year in substitution for the time that the child would have spent with that parent.

   (j)Neither parent will arrange holidays with the child away from the child’s place of residence on his birthday, the mother’s birthday or the father’s birthday unless both parents agree.

8. Both parents will facilitate the child’s being able to have private telephone communications with the other parent during the time that the child is with the first-mentioned parent. 

9. Each of the parents will accept the advice of Ms C, a Family Consultant attached to the Family Court of Canberra, about the appropriate courses each might attend to improve their ability to provide parenting to the child.

10. Each of the parents be and is hereby restrained from criticising, threatening, denigrating or making unkind or unpleasant remarks about the other parent or his or her partner or his or her family in the presence of or within hearing of the child and that neither parent will permit any other person to do so far as they are able to prevent such an event occurring.

11. Neither parent shall use corporal or physical punishment when disciplining the child.

12. Neither parent shall change the place of residence of the child without giving not less than seven day’s notice to the other parent.

13. Neither parent will take the child outside the Commonwealth of Australia without the prior written consent of the other parent or order of the Family Court or the Federal Magistrates Court. 

14. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

15. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

16. The matter is removed from the pending cases inventory.

IT IS NOTED that publication of this judgment under the pseudonym Waldron & Jennison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1870 of 2010

Ms Waldron

Applicant

And

Mr Jennison

Respondent

REASONS FOR JUDGMENT

Background

1. In this case the mother is aged about 39 years.  The father was, at the time of final hearing, aged about 41 years.  The parties began a de facto relationship in mid-1999 and B, who is the child subject to these proceedings, was a little over nine years at the time of final hearing. 

2. The parties separated at the end of 2009 after, therefore, approximately 10 years together.  The proceedings for the adjustment of property interests as between the parties were concluded by consent orders made by me on 10 May 2011.  Those proceedings are relevant to the extent that, it is agreed, the dispute between the parties had a negative effect on the parties and on their relationship with the child.

3. Since separation, the child has spent time with each of his parents on the basis (at least after a formal order from Brewster FM) of eight days with the mother and six days with the father in each fortnight.  That order was in those general terms on 7 December 2010, but was reflective of the situations applying before that time. 

4. These proceedings were originally commenced in the Federal Magistrates Court with and initiating application filed on 22 November 2011.  They are transferred to this Court because of the Federal Magistrates Court’s inability to make orders about matters under the Domestic Relationships Act 1994 (Cth). 

5. An amended application was filed by the mother on 4 March 2011 and response was filed by the father on 24 March 2011.  The report of Family Consultant C dated 3 May 2011 was in evidence before the Court and the parties engaged in cross-examination of Ms C.

Proposal of each party

1. In essence, the mother seeks sole, and effectively determinative, parental responsibility for the long-term care, welfare and development of the child and for the child to live principally with her on the basis of nine days in each fortnight and five days with the father in each fortnight. 

2. The father seeks orders for equal shared parental responsibility and for the child to live with each parent in a week-about arrangement. 

3. The arrangements about Christmas in each year, which have represented one of the bones of contention between the parties, have fortunately been agreed between the parties.

4. The original minutes of Orders sought by each of the parties appear as annexures to this judgment. I have already alluded to the final comments from each of the parties as to what orders I should make and their inability to reach conclusions. 

5. A final hearing occurred over the course of 1 June 2011, and at the conclusion of the hearing, I provided the parties with an opportunity to confer after all the evidence was concluded and final submissions had been made on the basis that they might nevertheless, even at this late stage, agree to particular final orders or to limit the scope of the dispute. They were not able to do so.

Summary of orders made

1. This is a matter in which there should not presently be equal shared parental responsibility. There will be sole parental responsibility in favour of the mother, which will be qualified as set out in the minute of orders sought by the mother, unless the parties otherwise agree.  No application may be made by either party to change that before the end of the second term of the 2012 academic year.

2. I note that in the documents that have been sent through to the Court overnight, which documents will become exhibits in these proceedings for identification purposes, the father had sought that should there be a continuation of the existing arrangements for the child, or some variation thereof, that they should terminate in February 2012. The mother had originally sought that there could have been a change at the end of this year.  I do not think either of those is appropriate. The earliest of any change in the time spent with each parent, should occur at the end of term 2 in 2012.

3. So far as the time that the children spend with their father is concerned, it appears to me there is no particular virtue in change at this point from the existing arrangement, where the child spends eight days in each fortnight with the mother and six days in each fortnight with the father.  One day is not going to make any difference in the overall picture between now and the end of term 2 in 2012 when, unless the parties earlier agree, the child will spend equal time with each of his parents. 

4. The child will spend half of each school holiday period with each parent. But in any year either parent may choose, on giving not less than half a term’s notice to the other parent, to have either the entire term 1 or term 2 school holidays with the child; the other parent will then have time with the child for the entirety of the other school holidays.

Parental responsibility

1. In these proceedings, the parties are seeking parenting orders.  As a parenting order is sought, it is necessary under the Act that I give consideration to a number of factors. 

2. The first is that there is a presumption of equal shared parental responsibility.[1]  That presumption may be rebutted in a number of different circumstances. The first is where there is family violence between the parties or abuse of the child.[2] The presumption may also be rebutted if the Court is satisfied that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility.[3]

   [1] Family Law Act 1975 (Cth), s 61DA(1).

   [2] Family Law Act 1975 (Cth), s 61DA(2).

   [3] Family Law Act 1975 (Cth), s 61DA(4).

3. Family violence was a live issue before the Court in this matter.  There is no suggestion in this case that there has been any abuse of the child, although there were some references to inappropriate discipline.  I will deal with evidence relating to family violence first to satisfy the terms of the presumption and its potential rebuttal. 

4. The allegations of family violence are made by the mother against the father on the basis that he has, on a number of instances, (set out in the mother’s affidavit) exhibited violence either towards physical objects in the house or alternatively towards animals within the house.  In relation to those matters, I find the mother’s evidence more convincing than that of the father and find the incidents as described by her to have occurred in the way in which she says they occurred. 

5. Whether that, in itself, constitutes a proper basis for rebuttal of the presumption is a different question.  It is not the case that any violence alone must necessarily bring about a rebuttal of the presumption.

6. In my opinion, however, the presumption of equal shared parental responsibility should not apply in this case and is rebutted by the fact that the parents have so far exhibited an inability to cooperate with each other to work out what might be in the best interests of the child. 

7. I do not believe that the matter is beyond recall, although I think the prospect of requiring the parties to attend further counselling is a waste of time and money.  The parents in this case would need to make decisions themselves about how they will communicate in a businesslike manner and about how they will work together for the benefit of the child.  If they are unable to do so, then the presumption ought not to apply in any event. 

8. It has been suggested to me in the course of the proceedings that the previous proceedings between the parties about property had been the instrument of the parties’ lack of ability to agree. I am not convinced that is exclusively the case.  The distrust that the parents have for each other is evident and commented upon particularly by the Family Consultant in this matter. It is a situation where, at present, the parties are unable to satisfy me that they could work comfortably together for the purposes of the best interests of the child. 

9. In these circumstances, the presumption is properly rebutted on the basis that it would not be in the child’s best interests for the parents to have equal shared parental responsibility. There should remain, at least for the time being, a situation where one parent has the sole parental responsibility for the child so that there is no stalemate. Sole parental responsibility does not exclude the parent who has it from the obligation of sharing information about the child with the other parent, nor does it exclude the responsibility for that parent to consult with the other parent to the extent that the parent with sole parental responsibility is able to do so.

10. What it does mean, however, is that if, having been informed and having been consulted, the parents are unable to reach agreement about what should happen about the major matters in the child’s life, then the parent with sole parental responsibility, in this case the mother, will have the right and responsibility (more importantly than the right) to make those determinations. 

11. That does not mean, of course, that when the child is with his father that the father’s parental responsibility is in some respect put on hold.  He will have responsibility for the day-to-day matters relating to the child during the time that the child is with him.  I have indicated in the summary of the orders above that this situation should apply indefinitely.  It is feasible, given that the parties agree they will move towards an arrangement where the child spends equal time with each parent, that they may be able to get to a point where their cooperation is appropriate.

12. In my opinion, these parties could not ordinarily be expected to work comfortably with a 7/7 arrangement But they both seem to be committed to the proposition that this should be so. That is a credit to them. However, notwithstanding that, and even if that should occur, it seems to me that until the parents are themselves able to agree that they should have equal shared parental responsibility, the mother should have sole parental responsibility for the child at least until the end of term 2 in 2012. 

13. After that time, if the parents are unable to agree, then either parent may, and, at some point, file a new application to seek equal shared parental responsibility.  They will be restrained by Order of this Court from making such an application before that time.

Equal or substantial and significant time

1. If the presumption had applied, then it would be necessary for me to consider whether the child should spend equal time or substantial and significant time with each of his parents.[4]  

   [4] Family Law Act 1975 (Cth), s 65DAA(1).

2. It is unnecessary for the presumption to apply for such considerations to be taken into account and I have already foreshadowed that there may be a period in which the parties have the child living with each of them week-about, but that the sole parental responsibility will rest with one of them.  The arrangements that had been applying for some time involve the child spending six nights out of every fortnight with his father. This would involve the child spending substantial and significant time (as that term is defined under the Act[5]) with his father. The arrangements proposed by the mother in her minute of orders sought were that the child spend five days a fortnight instead of six with his father. This would also have involved (within the terms of the Act[6]) substantial and significant time.

   [5] Family Law Act 1975 (Cth), s 65DAA(3).

   [6] Family Law Act 1975 (Cth), s 65DAA(3).

3. The father’s application for the child to spend seven days in each fortnight with him, was an equal division of time for all practical purposes and, certainly, a substantial and significant time.

4. On any version of the orders sought, I must consider equal or substantial and significant time. The current arrangements now involve the child spending substantial and significant time with the father. In the circumstances, consideration of equal or substantial and significant time is appropriate. I am only able to make an order that the child spend equal or substantial and significant time with each parent if I am satisfied that it would be in the child’s best interests to do so and that to do so would be reasonably practicable.[7]   

   [7] Family Law Act 1975 (Cth), s 65DAA(1) and (2).

5. Although the parties have had substantial disagreements about a number of matters, it is clear that each of them accepts that the other parent is a person who is very important to the child and, more importantly, a person who loves the child. The report from the Family Consultant has illustrated in a number of ways the dilemma that faces the child. He is confident that he is loved by both parents and wants, at his age, (mind you of about 9) to be fair to his parents.

6. It is a sad commentary on human life and on our present society and, in particular, I suppose, on the parties in this matter, that the child seems to be more concerned about what might be best for his parents than his parents were prepared to be about what might be best for him.  The child loves both his parents.  That is a concession from both parents.  He should spend time and derive benefit from both his parents. That is a concession from both parents.  The child will profit from the different but complementary parenting styles of each of the parents. That is accepted by both of the parents.  One might question, having gone through all of that, why there is a dispute between the parents. That is the question that does still trouble me just a little.

7. There is a concern on the child’s part that his parents are fighting. His parents would do well, I think, to take account of that fact and try to find some way in which they can, even if they do not like each other - and never will like each other and do not wish to be civil to each other - nevertheless, communicate with each other in a way that does not cause distress to their son. 

Best interests of the child

1. In coming to a determination about what might be in the child’s best interests, I am obliged to take account of the matters set out under s 60CC. Those matters are divided into primary considerations and additional considerations.

Primary considerations

Section 60CC(2)(a)  

1. This matter concerns the benefit to the child of having a meaningful relationship with each parent. In this case, each of the parents is agreed that this should occur.

Section 60CC(2)(b)

1. This factor is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  There is no suggestion in this matter that if the child is with his father or with his mother, there would be any psychological or physical harm arising. 

2. The mother has suggested in the past that the violence exhibited by the father and his inability properly to control his anger are factors which would reflect negatively upon the child. She has provided instances, and I have indicated in my judgment that I accept her version of the events referred to. The father has, on occasions, caused property damage, and I use that term because the father acknowledged in one instance that he had in some way broken a door (although he disputed that he put his fist through it) and that he has behaved in what the mother regarded as inappropriate ways in relation to the pets of the parties. 

3. These are events which in no way represent appropriate role modelling for the child.  On the other hand, they are events that have occurred not quite, but almost once a year over a relatively long period. I am not satisfied that in this matter there is sufficient evidence that the father will, after the termination of these proceedings (the ending of all court matters between the parties) be likely to engage in the same level of conduct.

4. There is some evidence before me that the father’s conduct in relation to the mother has been of an unreasonable and controlling nature.  It is difficult to make any formal assessment about that, given that the evidence has been relatively scant. 

5. It suffices to say that if the parents, having reached the need for a court intervention, accept the court intervention and work with it, it is improbable that they will have to put up with each other except in a formal way in the future. Therefore, the occasions on which the father might apply some form of controlling or other behaviour towards the mother will be diminished in type and time. 

6. The most recent allegation is that, during the time that the parties were waiting in a room while the child was being interviewed by the Family Consultant (to paraphrase the mother’s summary of the event), the father took the opportunity to denigrate and abuse her.

7. From the evidence, I can make no finding about the extent to which this occurred and the nature of the abuse. It suffices to say that I accept that there were some inappropriate comments made.  The frustration that each of the parties has felt about these proceedings ought to come to an end.  They ought to be able properly to communicate with each other. I am satisfied, from hearing both of them in the witness box, that this is a genuine possibility in the future, provided that there remains a will on either side to do so.  The occasions on which they are obliged to be in the company of the other and, particularly, in the presence of the child will be diminished by the orders which I will make without their agreement today. I do not believe the [past] verbal denigration and abuse would necessarily preclude the child spending time with his father – as I will subsequently order.

8. In this regard, I rely in part upon the fact that, notwithstanding all of these events, the mother has still indicated that she believes that the parties should work towards an equal shared time arrangement in relation to the child.  This indicates on her part a willingness to put the child’s best interests ahead of her own comfort and personal considerations. It also indicates the father’s willingness to accept the arrangement in the sense of accepting the responsibility. 

Additional considerations

1. The additional considerations I must take into account about this matter are as follows, and I deal with some of them briefly, because they are not seriously in contention. 

2. The Court must take account of any views expressed by the child.  These have been expressed somewhat poignantly to the Family Consultant with the child saying he would like his parents to be together again, that he wishes his mum and dad to get along with each other, that there be enough money so that there would not be disputes (presumably between the parents, about the house and property) and he would like to see his extended family more regularly.

3. His message to the Court is “I would like half and half”.  I have already commented on the fact that this, in my opinion, represents the child’s desire to be a peacemaker between his parents. But it should not be the case that the child should do what the United Nations cannot do between Israel and Palestine – and nor should he be expected to do so. 

4. So far as the assessment of his views in this matter, the Family Consultant has taken the view that, to some extent, the child is reflecting the need for both his parents to cease to be in conflict and that his real wishes may be different.  Whatever his wishes are, he is nine years old.  It is important he should be relieved from the obligation he has obviously felt to be the peacemaker between his parents. In my opinion, the existing arrangement should continue at least for the short term and the parties should move, as I suggested previously, towards the equal time arrangement which the child says he prefers and which, ultimately, both of the parents say they prefer.

5. Each of the parties has an appropriate relationship with the child.  I have little doubt that the mother is, at this point, far more involved with and familiar with the child’s present-day requirements.  This includes his schooling and I am unsatisfied by the evidence the father has given about the time he has either been able to spend at the school or willing to spend at the school.  In the father’s case outline and in his parenting questionnaire, he points out how close his home is to the school.  It seems incredible to me that he might not have realised that there had been no notice given to him of the parent-teacher interview during one of the terms. It also seems incredible to me that he might have gone through a whole term without getting any school report or notice when, clearly, that would have been something, from his own personal experiences, he would have expected to occur.

6. If he is five minutes away from the school, going to the school to make those arrangements would have been easy to do.  I hope that he will take these proceedings as being an indication that he is obliged to accept responsibility for the child. The Family Law Act provides not for equal shared rights about the children but equal shared responsibility for the children. That involves a proper application of the parents’ effort, money and time towards doing what is appropriate and necessary for the child’s best interests.  So far as the mother is concerned, I think that she has to some extent dug her toes in about some of the matters in recent times, partially in response to the attitude expressed by the father.  I hope that that may change.  I have no doubt about the closeness of her relationship with the child and her ability properly to look after him.

7. I have no doubt about the father’s ability physically to look after the child.  I hope that what he says in Court is true and that he will continue to and will apply himself towards assisting the child at school, particularly in the light of the child’s apparent difficulty with reading, which will require some attention from the parties over the next few years. 

8. I do not, at this stage, believe that either of the parents will find it easy to facilitate and encourage a close relationship between the child and the other parent.  This particular section of the Act is the subject of an amending Act of parliament at present.  It is known somewhat idiosyncratically as the “friendly parent” provision.  It is usually used by someone to indicate that someone is not friendly and is not a very helpful provision. 

9. In practical terms, the parents of a child in proceedings before this Court are unlikely to embrace with joy the proposition of encouraging the child to spend time with the other parent. If the parents have disliked each other sufficiently to maintain proceedings before this Court, it is unlikely that they will feel entirely enthusiastic about the child’s time with the other parent.  On the other hand, it is important for the child, not for the parents, to be able to have a continuing relationship with each of his or her parents, and I am satisfied in this matter, from the evidence that I have received in Court, if at no other time, that the parents, at least for the time being, are prepared to commit themselves to encouraging the relationship that the child will have with the other parent.  If the child were to spend the time that the father seeks with each of his parents, it is suggested that this would have the effect of diminishing the number of changeovers and, indeed, that will occur.

10. I accept that there have been some difficulties with changeover in the past and in particular I accept that on some of those occasions the father has taken the opportunity to say what I might loosely term ‘unkind and unpleasant things about the mother’.  This, of course, is scarcely in the child’s best interests and I can only hope that, at least in the period until the end of term 2 next year, there will be some attempt on the part of both parents, but in particular, I suggest, the father, to persuade me that the proposition that the child should spend equal time with the parent should be fulfilled.  It will be somewhat anomalous, if not contradictory, to have a situation where the child was to spend equal time with the parents to avoid the parents talking to each other. If he spends equal time with his parents, that will require cooperation, not isolation, and therefore it is important that the parents work on that while they have an opportunity to do so. 

11. There are no practical difficulties or particular expenses associated with the child spending time with either parent.  They do live some 15 kilometres distant from each other, but this is not a significant impediment to his attendance at school or attendance on either parent.  Each of the parents, at the moment, offers different facilities in the home in which he or she is living.  The father continues to live in the family home; the mother on a farm close to Canberra.  Each of those provides a different experience for the child which is probably to his benefit. 

12. I have made comments already about the capacity of each of the children’s parents to look after the child.

13. I am obliged also to consider the capacity of any other person to provide for the needs of the child.  The child has indicated a desire to have a continuing relationship with his extended family;  that is both in Canberra, where he lives, and with his grandparents and family in South Australia.  It is desirable for him to have the benefit of family and it is rewarding, for me at least, to see that both parents are both prepared to acknowledge the significance of family and to take practical steps to ensure that the child will have that benefit. 

14. There is no matter relating to background, lifestyle and culture or indigenous heritage which impacts upon my decision.  I make mention of these matters only because the Act requires me to take them into account. 

15. I have made comments already about the attitude of each of the parents to the child and to the responsibilities of parenthood.

16. I have also made comments about family violence, so far as I am aware, and there is no particular evidence about this before me.  There is no family violence order which I am to take into account in accordance with s 60CC(3)(k).

17. In this matter, although the Orders I make may give rise to further litigation if the parents can not reach agreement about sharing parental responsibility in due course, it seems to me that the present arrangement and the arrangement I propose, which provides a quarantine period from any further litigation, may be of benefit to the parties. 

18. Under section 60CC(4), I am obliged to take account of certain other matters. Without limiting the generality of those that have already been expressed, I must consider the extent to which each child’s parent has fulfilled or failed to fulfil his or her responsibilities as a parent, and, in particular, the extent to which each of the child’s parents has taken or failed to take the opportunity in participating about major decisions, spending time with the child and communicating with him.

19. The parents have been in some dispute about the extent to which each of those things occurred, but there is no doubt that each of them has committed himself or herself to those things, and I make no adverse finding in relation to that as such. 

20. I am also obliged to take account of whether either parent or each parent has facilitated or failed to facilitate the other parent participating in making decisions, spending time with or communicating with the child.  I make no finding and, in fact, I make a finding the mother has facilitated those matters with the father.  I accept that the father may believe that he has not had as great an input as he might. However, I accept that he has been appropriately consulted, and I include in that matters relating to schooling in which I am satisfied he might have participated more effectively on his own motion. He should not depend upon the mother making the information available to him.

21. Finally, I am obliged to consider whether either parent has fulfilled or failed to fulfil the child’s obligation to maintain the child. What has happened in this matter is the parents have taken the view that, essentially, each of them would bear expenses relating to the child when he is with that parent.  There has been one dispute before me about the provision of shoes. This is an argument more about need rather than about the fact that one parent should do it or not.  I think that it would probably be helpful for the father, in the course of the next few years, to observe how quickly children’s feet grow. It is necessary ultimately that the parents trust each other as to the needs of the child and it is equally important that the parents do not impose on one another in relation to this in some attempt to demonstrate that the other parent is not putting the appropriate time or effort or money into the care of the child.

22. For those reasons, therefore, it seems to me that, while it is not immediately appropriate that the parents should share the time that they spend with the child, nevertheless, it is an objective they both desire and, I think, if they are given enough time, they can probably work towards. Accordingly, I shall make orders as I have indicated previously I will do.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 2 June 2011.

Legal Associate:

Date:  21 November 2012

Annexures

Annexure 1

Minutes of orders sought by the mother

It is ordered that until further Order:

1.    The mother, [Ms Waldron] (“Mother”), have sole parental responsibility in respect of the long-term care, welfare and development of the child, [B], born … 2002 (“Child”), and inform the father, [Mr Jennison] (“Father”) about:

a.all serious medical issues relating to the Child;

b.the names of the Child’s medical practitioners and any other practitioners of a similar sort;

c.details about schooling and the Child’s progress;

d.any major events in the Child’s life.

2.    The Mother will authorise and direct the following to provide information to the Father about the Child upon request:

a.the Child’s school, teachers and any counsellors at the school (subject to professional confidentiality);

b.the Child’s doctors, dentists and any other medical professional, including information regarding any diagnosis, treatment and prognosis as the case may be in respect of any health matters from time to time.

3.    The Mother will consider consulting and discussing with the Father any major decisions affecting the Child’s wellbeing.

4.    The Father have sole parental responsibility for the day to day care of the Child during times that the Child is spending time with the Father.

5.    Notwithstanding the above Orders, the mother will have the right to make decisions about the Child’s long-term care, welfare and development.

6.    Subject to Orders 7, 8 and 9, and unless otherwise agreed in writing between the parties, the Child spend time with the Mother 9 days per fortnight, and with the Father 5 days per fortnight, made up as follows:

a.with the Father between 9.00am on Monday and 9.00am on the following Tuesday of each week; and

b.with the Father between 9.00am on Friday and 9.00am on the following Tuesday of each other week.

c.with the Mother at all other times.

7.    Subject to Orders 8 and 9, and unless otherwise agreed in writing, the Child spend time with each respective parent as follows:

a.Subject to Orders 7 b. – f., and 9 of these Orders, if, while the Child is spending time with the Mother, a Monday falls on a long weekend (which includes a public holiday), then the Child will remain with the Mother for the extra day of the long weekend and will spend time with the Father on the Tuesday following the long weekend;

b.with the Father between 5.00pm on the night before the Father’s birthday, should it fall at a time when the Child would otherwise be with Mother, and 9.00am on the day following the Father’s birthday;

c.with the Mother between 5.00pm on the night before the Mother’s birthday, should it fall at a time when the Child would otherwise be with Father, and 9.00am on the day following the Mother’s birthday;

d.with the Father between 12.00pm and 4.00pm on Father’s Day, should it fall at a time when the Child would otherwise be with Mother;

e.with the Mother between 12.00pm and 4.00pm on Mother’s Day, should it fall at a time when the Child would otherwise be with the Father;

f.with the parent the Child would ordinarily be with on Easter Sunday, between 9.00am and 12.00pm, and with the other between 12.00pm on Easter Sunday and 5.00pm the following Monday, alternating each year as necessary.

g.At such other times as agreed between the parties in writing.

8.    The Child spend time with each respective parent during the Christmas/New year period as follows, alternating each year and commencing Christmas 2011, unless otherwise agreed in writing between the parties;

a.with the Father between 5.00pm 24 December and 12.00pm 25 December; and

b.with the Mother between 12.00pm on 25 December and 12.00pm 26 December;

c.with the Father between 12.00pm 26 December and 12.00pm 27 December; and

d.with the mother between 12.00pm 27 December and 12.00pm 1 January the following year;

e.with the Father between 12.00pm 1 January and 12.00pm 7 January.

f.After which the usual arrangements resume in accordance with Orders 6 and 7.

9.    The Child spend time with each respective parent as follows to celebrate the Child’s birthday, alternating each year, and commencing March 2012:

a.with the Mother between 3.30pm on the night before the Child’s birthday and 1.00pm on the day of the Child’s birthday;

b.with the father from 1.00pm on the day of the Child’s birthday to 9.00am the following day.

10.  The Mother shall facilitate liberal and private telephone communication between the Child and the Father during times the Child is spending time with the Mother.

11.  The Father shall facilitate liberal and private telephone communications between the Child and the Mother during times the Child is spending time with the Father.

12.  The Respondent participate in, at his cost and at the earliest opportunity after the date of these Orders, no less than the following parenting and child development courses:

a.Stress and Anger Management;

b.Child Development (in the appropriate age group for the Child).

13.Neither parent shall:

a.criticise, harass, threaten, abuse, denigrate, or make derogatory or unkind remarks about, the other parent, or his or her partner, or his or her family in the presence of or within the hearing of the Child or permit any other person to do so;

b.use physical force when disciplining the Child;

c.change the place of residence of the Child without 7 days prior written notice to the other parent;

d.take the Child outside the Commonwealth of Australia without the prior written consent of the other parent or order of the Family Court or the Federal Magistrates Court.

14.  Unless otherwise agreed in writing between the parties, the time spent by the child with each parent set out in Orders 6 and 8 of these Orders are to be re-assessed by [D Centre] Canberra, or another comparable, suitably qualified and experienced service provider, in conjunction with the parties, and the Child as necessary, by 30 January 2012, or no more than three months after the Respondent complies with Order 12, which ever is the latter.  The cost of which is to be shared equally between the parties, and the parties shall adopt any recommendations of the relevant service provider.

Annexure 2

Minutes of orders sought by the father

1.    That the parents, [Mr Jennison] (“the Father”) and [Ms Waldron] (“the Mother”) have equal shared parental responsibility for the child B (“[the child]”), born … 2002.

2.    That from 15 August 2011, [the child] will live with the Father and Mother on an alternating basis on the following weekly cycle unless otherwise agreed:

(i)From 9:00am Monday on the first week, [the child] will live with the Father;

(ii)From 9:00am Monday on the second week, [the child] will live with the Mother;

(iii)In the event that the time specified at 2(i) or 2(ii) above falls on a long weekend including a Monday then the time will be extended to 5.00 pm on the Monday.

3.    That during the Christmas period in every odd-numbered year commencing 2011, [the child] will spend time with each parent as follows, unless otherwise agreed:

(i)From 6:00pm on 24 December to 1:00pm on 25 December with the Mother;

(ii)From 1:00pm on 25 December to 1:00pm on 26 December with the Father;

(iii)From 1:00pm on 26 December to 5:00pm on 31 December with the Mother.

4.    That during the Christmas period in every even-numbered year commencing 2012, [the child] will travel interstate with his Father from 9.00 am 24 December to 5:00pm on 30 December to visit the Father’s family interstate.

5.    That during the Easter holiday period, [the child] will spend from 9:00 am Good Friday to 1:00pm Easter Sunday with the Parent who is scheduled to have care for the child on that weekend, and from 1:00pm on Easter Sunday to 5:00pm Easter Monday with the other parent.

6.    That if either Parent wishes to take [the child] on holidays for a period longer than one week, that parent must:

(i)Provide a minimum four (4) weeks notice to the other Parent;

(ii)Provide the other Parent with evidence of the purchase of return tickets to Australia if the Parent and [the child] are travelling overseas;

(iii)Not arrange holidays with [the child] away from [the child’s] place of residence on [the child’s] birthday, the Mother’s birthday or the Father’s birthday unless otherwise agreed.

7.    That regardless of where [the child] may be living, he will spend

(i)From midday to 4:00 pm on the Father’s Day with the Father;

(ii)From midday to 4:00 pm Mother’s Day with the Mother;

(iii)From 9:00 am on the Father’s birthday to 9:00am the following day with the Father;

(iv)From 9:00 am on the Mother’s birthday to 9:00 am the following day with the Mother.

(v)At least half a day with his Father and Mother on [the child’s] birthday.