Waller and Zeni

[2017] FCCA 1844

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALLER & ZENI [2017] FCCA 1844

Catchwords:
FAMILY LAW – Parenting – seven year old child has lived with his father for more than four years since separation but his primary attachment is still to his mother – the mother has better parenting capacity and understanding of the child’s emotional needs – change of primary residence ordered – sole parental responsibility to the mother.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2), 60CC(3), 61DA, 61DA(2), 61DA(4) 65DAC, 65DAA(1), 65DAA(2), 65Y

Applicant: MS WALLER

Respondent: MR ZENI

File Number: PAC 1435 of 2015

Judgment of: Judge Hughes

Hearing date: 13 and 14 July 2017

Date of Last Submission: 14 July 2017

Delivered at: Canberra

Delivered on: 17 August 2017

REPRESENTATION

Counsel for the Applicant: Mr Schroder

Solicitors for the Applicant: Legal Aid Parramatta NSW

Counsel for the Respondent: Mr Greenaway

Solicitors for the Respondent: Concordia Legal

ORDERS

1. All previous parenting orders in relation to the child [X], born (omitted) 2010, are discharged.

2. Subject to order 16 below, the mother shall have sole parental responsibility for major long term issues concerning the child but, before making any such decision, she shall advise the father of the decision to be made, give him a reasonable opportunity to have input into the decision and take his views into account before making the decision.

3. The child shall live with his mother commencing today. 

4. The child shall spend time with his father as follows:

   (a)During school term, every second weekend from after school on Friday until 6pm on Sunday;

   (b)Each Wednesday from the end of school until 6pm;

   (c)For half of all school holidays being the first half in odd numbered years and the second half in even numbered years unless otherwise agreed; and

   (d)Such additional or alternative times as agreed between the parties.

5. For the purpose of these orders, school holidays are deemed to commence at 9am on the first day following the end of term and end at 6pm on the day immediately prior to the commencement of the new school term.

6. If Mother’s Day falls on a weekend when the child is spending time with his father, the child shall be returned at 6pm on Saturday.

7. If Father’s Day falls on a weekend the child is with his mother, the child shall spend from 6pm on the Saturday of that weekend until 6pm on the Sunday with his father.

8. The child shall spend at least three hours with the parent he would not otherwise see on his birthday at times to be agreed or, failing agreement, from 3pm until 6pm. 

9. The child shall spend time with each parent on their birthday if he would not otherwise see them on that day at times to be agreed or, failing agreement, from 3pm until 6pm.

10. Notwithstanding anything to contrary in these orders, the child shall spend time with each of his parents on days of special religious significance as follows:

    (a)from 10am on Christmas Eve until 2pm on Boxing Day each year with his mother;

    (b)from 10am on Good Friday until 2pm on Easter Sunday each year with his mother;

    (c)from 9am on the day of Eid-ul-Fitr until 5pm 3 days later with his father;

    (d)from 9am on the day of Eid-ul-Adha until 5pm 3 days later with his father;

    (e)from 9am on the 26^th day of Ramadan until 5pm the following day with his father; and

    (f)from 9am on the 9^th day of Thul-Hijiah until 5pm the following day with his father.

11. The child shall spend such additional or alternative times with his parents as agreed between them in writing. 

12. All handovers of the child which do not occur at school shall occur with the parent who has the care of the child delivering him to the residence of the other parent unless the parties otherwise agree.

13. During handovers, the parent delivering the child shall not approach the other parent unless invited to do so.

14. Each parent may telephone the child in the other parent’s care on Tuesday, Thursday and Saturday between 6pm and 7pm.

15. Each party shall facilitate and support the child telephoning the other parent at any reasonable time at the child’s request.

16. Unless otherwise agreed the child shall continue to attend (omitted) College at (omitted) New South Wales for his primary school education.

17. Each party is free to be fully involved in the school, sporting and extra-curricular life of the child, to receive copies of school reports, school newsletters and the like, and to attend all events and functions to which parents are invited.

18. Each parent shall advise the other as soon as practicable of any significant illness or injury suffered by the child and shall provide full details of any treating medical practitioners and, to the extent necessary, provide authorisations for those medical practitioners to provide any information sought by the other parent.

19. Each party shall keep the other advised of their residential address, email address and mobile telephone numbers and advise of any change to those details within 24 hours of the change.

20. The parties shall forthwith take all steps necessary to arrange for the child to be assessed by a paediatric neuropsychologist or educational psychologist to assess the extent of his learning needs.

21. The parties shall forthwith take all steps necessary to engage with an appropriate family therapist for the purpose of assisting the child to:

    (a)re-establish his relationship with his mother;

    (b)assist in the transition to the mother’s fulltime care; and

    (c)to develop a more secure attachment relationship with his father.

22. For the purpose of orders (20) and (21):

    (a)the parties shall equally share in the cost of the assessment and therapy unless otherwise agreed;

    (b)the parties shall make themselves and the child available as requested by the relevant experts; and

    (c)the parties may provide to the experts a copy of these orders and reasons for decision and a copy of the family report of Ms K dated 11 April 2016.

23. Each party is restrained from:

    (a)denigrating the other parent or members of their family to the child or in his presence or hearing, or allowing anyone else to do so;

    (b)discussing these proceedings with the child or in his presence or hearing, except to explain to the child the new arrangements; and

    (c)using any form of corporal punishment as a means of discipline of the child.

24. Otherwise, all extant applications are hereby dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Hughes delivered this day will for all publication and reporting purposes be referred to as Waller & Zeni.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1435 of 2015

MS WALLER

Applicant

And

MR ZENI

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in relation to the seven year old child of the parties.  Each party seeks orders for the child to live with them.  The mother was the undisputed primary caregiver until the parties separated in March 2014 when, following an incident, the child was placed with his father and has remained there since.

Background

1. The applicant mother is aged 48.  She works as a (omitted).  She is a Christian born in (omitted).  The father is aged 34.  He is a (omitted) and operates his own business.  He is a (omitted) born in Australia to (omitted) parents.

2. The parties met in 2008.  At that time they were both working as (omitted) across the road from each other.  They commenced a casual relationship.  At the time, the mother was a widow.  She had four children from her marriage who were aged about 12, 15, 16 and 17 years.  She lived with those children in (omitted).  The father was living with his father in (omitted).  He too had previously been married but had no children.

3. In mid-2009 the mother discovered she was pregnant with the child.  The father tried to persuade her to terminate the pregnancy and the parties had no communication for several months.  The parties then reconnected and discussed the possibility of an ongoing relationship.  The father insisted the child would have his brother’s name and be raised as a (omitted), would be breastfed for three years and only ever be put into cloth nappies.  The mother said she agreed to those stipulations by the father.  She said she believed at the time that, because all religious faiths have positive things in common and she values tolerance, she would be able to manage having the child raised in the (omitted) faith.  During her oral evidence she conceded that she knew that meant the child would also attend an (omitted) school.

4. The father told her he would not tell his family about the parties’ relationship until the baby was born.

5. The child, [X], was born on (omitted) 2010.  The father was present at the birth.  Following the birth he obtained his own accommodation in the suburb of (omitted).  The mother began staying in the father’s home but also travelled back and forth to her home in (omitted) to spend time with her older children.  She then encouraged her children to move to (omitted), closer to the father’s residence.  In early 2011 the parties commenced cohabitation.  The mother’s son, [A], who was aged 16 at the time also moved in with them.  The father took [A] on as an apprentice in his (omitted) business at that time.

6. In 2012 the parties undertook a traditional (omitted) marriage at a (omitted)’s office, although they were not legally married under Australian law.  Before the marriage, the mother converted to (omitted).  In about November 2013, because of difficulties in the relationship, the mother moved with [X] and her son [A] into her daughters’ home in (omitted).  She said the parties did not discuss why she had left and they had no communication after the separation.  She said she rang the father several times to offer him time with the child but he did not return her calls.  On 7 January 2014 the father answered the mother’s call and the parties agreed to meet at his home.  The parties had a good conversation and two days later they reconciled.  The mother and [X] moved back into the home the parties previously shared in (omitted).

7. The father worked long hours in his business, usually leaving between 5am and 6am and returning between 5pm and 6pm.  On Thursday nights he regularly went out with friends, often arriving home under the influence of alcohol late at night.  He took offence to the mother asking him where he had been.  The mother said he would also have friends over late at night and stopped interacting with her and the child.  She said the father often went to family functions and events without inviting her.  The father disputed that, saying that she was always invited to attend.

The incident at separation

1. In March 2014 the parties had a disagreement.  The child had been attending preschool/childcare across the road from their home on one or two days each week.  The mother withdrew the child from preschool.  The father said she began taking the child to work with her at the (omitted business) which he thought was inappropriate.  On 24 March 2014 he told the mother he had decided that the child would go to preschool five days a week.  The mother said she wanted to have a discussion about the issue rather than be dictated to.  She said the father simply said, “You should leave” and that was the end of the relationship.

2. As the mother was about to leave the home with the child that day, a violent incident occurred.  The mother said she was holding the child on her hip and the father approached her, shaking his finger at her.  She said she instinctively put her hand out to stop him coming closer.  She said that her hand connected with the father’s face, then both parties lost their balance, stumbled, and fell towards the table.  She said a short struggle ensued before she got up and left with the child.  She went to the home of the paternal grandparents.  She told them that the relationship between her and the father was not working and told them that the father was not a good husband or a good father.  She said the paternal grandparents offered that she could stay the night with them and she agreed.  She settled the child in bed and returned to the home to collect clothes for herself and the child.  She said that when she arrived the father was sitting out the front of the home.  She said he pointed in a gesture which she took to mean she should go away.  She reversed the car out to the street and called the police requesting assistance to enter the property to collect her belongings.  She said the police arrived about 30 minutes later but after speaking with both parties, they arrested her and took her to the (omitted) police station.  They arranged for [X] to be returned to the father and the child has lived with him ever since.

3. On 25 March 2014 the father obtained an ex parte interim apprehended violence order in the Local Court for the protection of him and the child.  The proceedings were adjourned to 1 April 2014.  A statement of the grounds relied upon for the application is attached to the mother’s trial affidavit filed on 7 April 2017.  In that statement the father said he told the mother he had decided to put the child in childcare five days a week.  He said the mother wanted to discuss the matter before a decision was made but he told her the issue did not need to be discussed and the child would be starting the following day.  The father said the mother became aggressive and told him he would not be seeing the child again.  According to the father’s statement, the mother then approached the father from behind, pushed him in the back, then pushed him in the nose with her open palm before grabbing his nose and shaking his head from side to side.  According to the statement, the child was on the mother’s hip and began to cry.  The mother then pushed the father in the throat with her right hand causing him to stumble backwards, trip over a chair and land on his back on a table.  While he was on his back the mother strangled him with her right hand.  According to the statement, the mother then tried to prevent the father from using his mobile phone before leaving the house with the child and calling the police.

4. The father said in the statement that he feared for his and his son’s welfare if the mother returned to the home.

5. The mother denied the version of events relied upon by the father.  She said that, while both parties have training as (occupation omitted), the father is significantly larger and heavier than she is and was an (omitted).  Her description of the parties’ physiques accorded with my observations in Court.  The mother said she did not believe the father had ever been afraid of her and that he lied to gain a strategic advantage in relation to the child’s living arrangements.

6. The interim family violence order prohibited the mother approaching within 100 metres of the father’s home or approaching the father or the child except “as authorised by a current parenting order”.  This would have allowed the parties through legal representatives to negotiate parenting arrangements but that did not occur.

7. The mother was also charged with assault.  On 26 June 2014 she was found guilty of assault but no conviction was recorded.  She was required to enter into a good behaviour bond for a period of six months from that date.

8. A final family violence order was made on 26 June 2014 for a period of 12 months. It restrained the mother from assaulting, molesting, harassing, threatening or interfering with the father or the child and from stalking or intimidating them. It prohibited her from approaching or contacting them by any means except through solicitors or as agreed in writing or permitted by an order under the Family Law Act in relation to counselling, conciliation or mediation.

9. On the same day, 26 June 2014, parenting orders were made in the Local Court which permitted the mother to have supervised access to the child at the child’s preschool/childcare centre at any time between 9am and 6pm on Monday to Friday.

10. During the proceedings the mother said she believed she received inappropriate legal advice and was advised to plead guilty to the criminal charge.  However, during cross-examination, she agreed that she gave evidence in the proceedings as did the father.  It appears therefore that the proceedings were defended.  If so, there must have been a finding by the Court to the criminal standard of beyond reasonable doubt that the mother committed the assault.

11. The mother began seeing the child for between half an hour and an hour approximately three times a week at his childcare centre.  The mother said the times were chosen to cause minimum disruption to the routine of the childcare centre.  She said the child was sometimes clingy to her when she was leaving and, in November 2014, he asked to come and live with her.  She said he also often asked about his older half siblings with whom he enjoyed a close relationship.

12. The child commenced primary school in January 2015 at (omitted) College, an (omitted) school in close proximity to the homes of both parents.

The family law proceedings

1. The mother commenced proceedings in this Court on 1 April 2015.  The first return date was 13 May 2015.  On that day, interim consent orders were made which discharged the parenting orders made in the Local Court, provided for the parties to have equal shared parental responsibility, for the child to live with the father and to spend time with his mother, initially for three hours twice a week, then for three hours each Monday and Wednesday and four hours each Saturday, a total of ten hours a week.  The orders provided for extra time on special days.  A family report was ordered and the proceedings adjourned ultimately to 29 April 2016.  A family report dated 11 April 2016 was released on 14 April 2016.

2. On 29 April 2014, orders were made by consent which provided for the child to spend every second weekend with his mother from the end of school on Friday until 6pm on Sunday, for three hours each Monday and Wednesday afternoon, for half of school holidays and for extra time on special days.  The matter was listed in a call over on 12 August 2016 and the parties were ordered to attend family dispute resolution in the meantime.

3. On 12 August 2016 the matter was listed for a two day hearing commencing 18 May 2017 but was not reached.  It was listed for two days commencing 13 July 2017.

4. The proceedings were heard on 13 and 14 July 2017.  Both parties were represented by solicitors and counsel.  The parties, the father’s wife, Ms B, and the family consultant, all gave evidence and were cross-examined.  Oral submissions were made at the end of the trial on 14 July 2017 and the proceedings adjourned for judgment on a date to be advised.

The parties’ proposals

1. The applicant mother sought orders for equal shared parental responsibility, for the child to live with her and to spend time with the father every second weekend from the end of school on Friday until 6pm on Sunday, from 3pm to 6pm each Wednesday and for half of all school holidays.  She proposed the child spend extra time with the father on the child’s birthday, on (omittied) days and on Father’s Day.  She sought orders for the child to spend time with her over the Christmas and Easter periods.  The mother sought a range of other orders concerning telephone communication, attendance at sporting events, and notification in relation to medical issues.  She sought orders restraining the parties from using corporal punishment as a form of discipline, from denigrating the other party to the child and from removing the child from Australia. 

2. The father sought orders for the parties to have equal shared parental responsibility, for the child to live with him and for the child to spend time with his mother every second weekend from after school on Friday until the commencement of school on Monday for four occasions and thereafter from after school on Friday until the commencement of school on Tuesday.  He proposed that the child spend half of each school holiday period with each parent.  He sought specific orders for the child’s birthday, for Father and Mother’s Days and for days of religious significance for each parent.  He proposed that each party be permitted to take the child on international holidays.  Otherwise, the additional orders he sought were consistent with the orders sought by the mother.

Family violence allegations

1. The mother alleged that during the relationship the father was sometimes aggressive towards her and towards the child.  She said he used offensive language to her and would sometimes push her.  She said there was one incident in which the father put a pillow over her face and pushed the pillow down during sexual intercourse.  She said she pushed the father off her but felt very unsafe.  She said she did not tell anyone about the incident.  The father denied the allegation but the issue was not otherwise explored during the trial.

2. The mother said that on about 22 June 2016, well after separation, she returned the child to the father’s home.  She said it was dark and raining when she dropped the child off.  The father was waiting out the front of his home.  She said that they all ran to the front door together but she had the sensation that the father was pulling the child as they ran.  She said she quickly handed the child and his bag to the father, then ran back to her car and left.  The father made a complaint to the police that the mother had assaulted him that evening.  The police attended the mother’s home the following day.  She denied assaulting the father.  She said the police officer told her to be careful because it appeared to the officer that the father was trying to build a case against her for the upcoming family law proceedings.  The father denied that.

3. The mother said the father was sometimes violent to the child.  She said he began smacking the child from when he was two years old and, after the child turned two and a half or three years of age, he hit him with a belt on a few occasions.  The mother said she intervened on occasions when the father was approaching the child with a belt.  That was denied by the father.  He said he had never hit the child with a belt.  He said on occasions he showed a belt to the child and snapped it together to make a sharp sound but did not use it in any other way. 

4. The mother’s allegations about family violence were not particularised in the affidavit material other than the one occasion when she said the father put a pillow over her face.  During the interviews for the family report the mother told Ms K that the father became increasingly rude and verbally aggressive in around 2013.  She said he was dismissive towards her and the child.  She told Ms K that the father would come home from work stressed and refused to talk to her and would physically shove past her, knocking her out of the way.[1]  She also alleged that he became increasingly emotionally and psychologically distant from her, showing no interest in the relationship and that he withheld financial support.  She said she felt forced to return to work to support herself and the child.  The father denied all of those allegations.  The state of the evidence does not allow me to make any positive findings one way or the other about them.

   [1] Family Report dated 11 April 2016 at paragraph 52

Other risk issues

1. The mother said that while the parties were living together she discovered in a chest of drawers in their bedroom a collection of syringes, alcohol swabs and small bottles of clear liquid.  She said she asked the father what they were and asked him whether he was taking drugs.  She said he told her that they were steroids that he had taken in the past.  She asked him to get rid of them.  When, after several months, he had not done so, she removed them.  The father did not dispute that evidence.  He said he used steroids when recovering from a shoulder injury during his weight lifting days.  He did not adequately explain why he took the steroids to the house he and the mother moved into well after the time he was engaged in competitive weight lifting.

2. The mother said the father owns firearms.  The father agreed and said they are all licensed.

The child’s care arrangements post-separation

1. Following separation the child attended preschool across the road from the father’s house on 5 days a week.  The father said he usually took the child to preschool and picked him up but, if he was unable to, he arranged for his twenty year old niece, Ms F, to do so.  He said his niece also cared for [X]’s cousins aged five years and three years.

2. In February 2016 the father entered into an (omitted) marriage with Ms N and he and the child moved into her home in (omitted).  Ms N had three children aged 6, 8 and 13 at the time.  Ms N took over the primary care of the child.  She was responsible for getting him up each day, getting him to and from school, supervising his homework and attending to all aspects of his care, welfare and development.  The family consultant observed a developing but positive relationship between the child and Ms N when she undertook the family report interviews in April 2016.

3. On 25 April 2016, the father and Ms N separated. The father said this was because he formed the view that Ms N was harsh with the child.  When that was explored he said the child had whispered to him that his stepmother had refused him permission to have a chocolate biscuit and that she had raised her voice to him, telling him to go to bed at bedtime.  He cited no other examples of poor treatment of the child by Ms N.

4. While he was in a relationship with Ms N the father tried to change the child’s school and enrol him in the one attended by Ms N’s children.  The child was not admitted into the new school.

5. After the father and Ms N separated, the father moved in with his sister and her two children aged 16 and 18 years in (omitted).  He arranged for a property he owned in (omitted) to be demolished and rebuilt as a duplex into which he and the child moved shortly before the trial in mid-2017.

6. On 21 January 2017, the father married Ms B in (country omitted).  She arrived in Australia on a spouse visa on 20 May 2017.  At the time of the hearing in July 2017 Ms B was seven weeks pregnant with their child.  The father said the child has a good relationship with Ms B and is excited about the prospect of having a baby brother or a sister.

7. On the first day of the hearing the father’s legal representatives prepared a proof of evidence of Ms B.  In that proof, Ms B said that the father leaves home for work between 5 and 6am and returns between 5 and 6pm each weekday.  She said that she prepares the child for school by waking him, providing him with breakfast and helping him to dress before he is picked up for school.  She said she is there for him after school and prepares the household meals.  She described her and [X] having “a great relationship”.  She said the father does not work on weekends and spends time with her and the child.  She said during her oral evidence that she treats the child as if he were her own child. 

8. The father said quite candidly that he expects the child to refer to Ms B as “mum”, in the same way he previously expected the child to refer to Ms N as “mum”.

The child’s education

1. The mother was concerned about the child’s education and sought orders for him to change schools.  The child was required to pass an entrance examination for entering into kindergarten at (omitted) College.  A copy of that exam came into evidence.  It appears to consist mostly of a school readiness assessment.  Although the enrolment contract provides for both parents to sign, the father alone signed it.

2. The mother said the child was struggling with reading and writing.  She argued that, because his father speaks to the child in both (language omitted) and English, and his step-mother speaks to him in (language omitted), it would be good for the child to attend an English language school to develop his English language skills.  She said she thought the child was struggling at school as a result of being taught in two different languages.  She proposed that the child be enrolled in (omitted) Public School in (omitted).  She said he could practice his (omitted) faith and be exposed to his mother’s Christian faith while with the relevant parent.

3. Documents produced under subpoena by the child’s school were tendered and became exhibit M1 in the proceedings.  The child’s 2016 school report indicated he was having difficulty with every subject except for (language omitted) language and religious studies.  The report grades each subject from A (outstanding achievement) to E (low achievement).  The child achieved an A for (omitted) Language Studies and a B for (omitted) Studies.  He received a D for English and Maths, and a C for all other subjects.

4. The school records indicate that on 5 August 2016 the father met with the child’s teacher.  One area of discussion was the mother’s desire to change [X]’s school.  The father told the teacher he had no difficulty with the child changing schools, but thought it best to wait until the end of the year.  During his oral evidence the father said he did not mean that he consented to a change of school but rather that he wanted to see how [X] was progressing by the end of the year.  It was agreed at the meeting that the father needed to assist the child with reading and writing or provide some tutoring for him.

5. The mother had a separate meeting with the child’s teacher on 13 October 2016 and requested information about tutoring and other resources that might be available for the child.

6. Both parties have co-operated with obtaining tutoring for the child.

7. The father said the child had improved significantly at school this year and had achieved awards.  The award certificates came into evidence as exhibit F2.  They relate to the child’s effort rather than achievement.  They were awarded in December 2016 and March and April 2017.

8. The mother pressed her application for the child to be removed from (omitted) College and enrolled at the local state primary school.  She agreed during cross-examination that she was easily able to access the child’s school and the teachers because the school is approximately three minutes’ drive from both parties’ homes.  She said the child has friends attending the local primary school but was unable to name any of them in cross-examination.

The family report

1. A family report was prepared by Ms K on 11 April 2016.  For the purpose of the report Ms K interviewed both parties and the child.  She also interviewed Ms N.  She carried out an observation of the child and his father and they were later joined by Ms N and her three children.  She also carried out an observation of the child with his mother and they were later joined by the child’s older half-sister, Ms N, and Ms C, the fiancée of the mother’s son, [A].

2. Both parties gave Ms K their version of the relationship history.  At the time the father was living with Ms N and her three children in a home owned by Ms N.  The mother was living in a four bedroom rented home she shared with her eldest daughter Ms N who was aged 25 years, her son [A], aged 20, and his fiancée. The mother said her two other adult children, Ms K and Ms R, lived independently with their partners nearby.  The mother told Ms K that all of her children socialised together on a regular basis.

3. The description given by Ms K of the mother was consistent with my impression of the mother in Court.  Ms K said the following:

   Ms Waller impressed being a quiet, gently spoken woman with a warm and personable demeanour and naturally introverted temperament.  Ms Waller appeared to be a sensitive person who feels passionately about family life and her role as a mother and carries an underlying note of sadness associated with having suffered grief from having been separated from her young son, but also showed herself possessed of an inner emotional strength, calm and resolve.  Ms Waller was responsive and cooperative during the interview process.[2]

   [2] Family report dated 11 April 2016 at paragraph 34

4. The mother lost an eye to a rare form of childhood cancer and for many years wore a prosthetic eye.  She told the family consultant that she had stopped wearing it to symbolise her grief associated with separation from the child which she likened to losing a part of her body. 

5. The mother told Ms K that she and the father discussed the difference in their cultural background at the beginning of their relationship.  She said they agreed it was not likely to cause any difficulty for them.  She said the father did not appear to be particularly religious while they lived together and for that reason she finds it hard to understand why he now insists the child must attend an (omitted) school and learn (language omitted).  During cross-examination, however, the mother said that when she agreed to the child being raised as a (omitted), she understood that would also include him having religious education and attending an (omitted) school. 

6. The mother told the family consultant that she stopped identifying as a (omitted) at separation. She said she still has respect for the (omitted) faith.  She said her daughter Ms R married a (omitted) man and converted to (omitted).  She said she respects the religious practices and dietary requirements of her daughter and son in law.

7. The family consultant’s description of the father was also consistent with my impression of him during the hearing:

   Mr Zeni impressed as a naturally loud, extroverted and ebullient personality.  Mr Zeni is taller than average in stature and has a strong, robust frame, but also presents as a larger than life character and personality.  When Mr Zeni enters the room he brings with him a jaunty, vivacious and spirited energy, but with an underlying restlessness and nervousness and nervous intensity as if impatient for action.

8. Ms K said the father was extremely proud of his son who was the first grandson in his family and therefore the first of that generation to carry the surname Zeni.  He told Ms K the parties’ relationship was good when the child was born and that the parties never argued.  He said he was working two jobs at the time, being his (omitted) business and a second job as a (omitted), which meant he was working six full days a week and the child was cared for by the mother.

9. The parties agreed that the mother returned to work when the child was about two years of age.  She worked on Saturday and Sunday mornings.  She left the child with her older daughters on Saturdays and with the father on Sundays. 

10. The father told Ms K the relationship began to break down in 2013 when the mother began to complain about him spending every Thursday night meeting with business colleagues and having a few drinks.  He said that once or twice a month he would also go to a party for weddings or family functions and would come home intoxicated about which the mother complained.  He said that when the mother began to work 4 days a week, [X] was put into preschool.  He said that the mother then decided to withdraw him from preschool without any explanation or discussion with him.  He said she then began to stay away from home more often, and stayed at her older children’s home.  He said she also took the child to work with her which he did not think was appropriate.  He said that by the end of 2013 it was clear they had separated and remained so for about three months until the mother rang to speak to him and they reconciled.  The reconciliation was short lived.  He said he was unhappy about the child attending the mother’s workplace and enrolled the child into preschool fulltime.  He told Ms K he did not consult the mother about that as there was no need to talk about it.  He confirmed that the parties separated on a final basis after the incident on 24 March 2014.

11. The father told Ms K that he met Ms N in January 2015 and that he and the child began living with her and her children from October 2015.  He said they married according to (omitted) custom in January 2016.  He told Ms K that he explained to the child in advance that he was going to marry Ms N and that she would be his step-mother or second mother.  He said he told the child that Ms N would be the one to cook, clean and look after him, just like one of her own children and that he should call her “mum”. 

12. Ms K met with Ms N.  At the time, her children from her previous marriage were aged 13, 8 and 6 years respectively.  She confirmed that she was responsible for organising the household and for [X]’s care in the same way she was responsible for her own children’s care.  She said that when the father worked long hours in the business that [X] therefore spends most of his time with her.

13. At the time of the family report Ms N was working from 9am until 3pm five days a week as a (omitted).  She said she needed to have all four children at school by 8am and noticed that [X] had trouble waking up on time on school days.  She collected [X] from school each day except Mondays and Wednesdays when he went to his mother and when the child had tutoring.  Ms N supervised the homework of all four children, prepared their dinner and ensured they were in bed by 8pm.  She said that [X] had more difficulty with school work than her own children and needed extra help.  She also said his behaviour at times was difficult because, when upset, he would become angry and kick and sulk.  She said her approach was generally to ignore his tantrums until he had calmed down.  She said at first [X] appeared scared when his father left and would cry when he left the room but had gradually got used to her and her children. 

14. Both parties and Ms N agreed that [X] was struggling academically and needed extra support and tutoring.

15. Ms K interviewed [X] on his own.  She said he initially seemed watchful, reserved and slightly anxious, but gradually warmed up.  She said he was respectful, compliant and responsive to questions.  She assessed that [X] found it hard to articulate his feelings.  She said that, as with most children his age, he tended to deflect questions when he felt uncomfortable.

16. Ms K said that [X] spoke fondly and happily about his father and new family, and described a particular closeness with Ms N’s son, [H].  He spoke equally warmly about his mother and his half-siblings.  He spontaneously said that he would like to sleep at his mother’s house which he had not done until then.  He called his mother “mum” and Ms N “Ms N”. 

17. Ms K said the child displayed a range of behaviour and temperament when observed with his family.  She said he had a light-hearted, exuberant and fun loving side to his personality in the right circumstances.  Ms K noted that he shares that part of his father’s temperament.  He also displayed sullen, angry and frustrated behaviour including lashing out and kicking aggressively.  She said:

    He thrives on being the centre of adult attention but also appears to lack emotional resilience, being overly sensitive and easily crushed in trying to compete against other children.[3]

    [3] Family Report dated 11 April 2014 paragraph 94

18. When observed with his father, Ms K said the child was initially quiet and watchful, and appeared eager to fit in with his father’s suggestions about what activities they would engage in.  The father offered the child a choice about activities and the child quietly moved towards the sand tray.  However the father appeared not to notice, and suggested they play cards.  Ms K said that as the game progressed, the father was enthusiastic and exuberant when he won a point, and [X] began to mirror his father’s tone.  When Ms N was introduced, the child greeted her warmly and Ms K said he seemed genuinely pleased to see her.  When Ms N’s children were introduced to the room, [X] greeted them enthusiastically.  Ms K said that as Ms N’s children vied for Mr Zeni’s attention, [X] quietly drifted away from the group, looking lost.  At one point he began to sulk and became angry when there was an argument about whose turn it was to engage in an activity.  He lashed out at his father and kicked a chair as he walked past.  He threw himself down onto lounge cushions and covered his eyes.  The father tried to console [X] from a distance, whereas Ms N chose to ignore his tantrum and give him time to settle himself.  The child eventually did become settled, sat upright and, at [H]’s invitation, joined the other children again.

1. During the observation of the child with his mother, Ms K observed that the mother was willing to follow the child’s lead and provided assistance when needed.  She spoke in a warm, gentle and quiet voice.  Ms K said the child appeared to be holding himself aloof from his mother initially but gradually relaxed and became at ease. 

2. The child’s older half-sister, Ms N, and his half-brother’s fiancée, Ms C, joined the group.  [X] was very happy to see them and became more animated and outgoing.

3. Ms K described a very affectionate interaction between the child and his mother towards the end of the observation session.  When it was time to pack up, she said [X] left the task to Ms N and Ms C and jumped into his mother’s arms, wrapped his arms and legs around her and “snuggled his face down into her neck”.  Ms K said he settled there and his mother began to rock from side to side while holding him.  She said [X] lay completely relaxed and at ease with his mother.  When it was time to go he gave his mother a big hug and kiss and embraced the two young women.

4. Ms K formed the view that [X] had retained his primary attachment to his mother despite the significant disruption caused by living apart from her since March 2014.  She said there was no doubt the child had developed an attachment to his father but there were features consistent with an ambivalent or insecure attachment rather than a secure attachment to him.

5. Ms K said the following about the loss of daily care by the child’s mother:

   It is assessed that [X] experienced significant trauma caused by the loss of proximity to his primary attachment figure, Ms Waller.  Given the disruption in trust and sense of safety for [X], it was essential for a child’s wellbeing and long term psychological adjustment to be provided with patient, consistent, and attentive caregiver in order to preserve his sense of interpersonal security.  It is also assessed that Ms Waller is best equipped to provide [X] with his much needed sense of interpersonal security and that it is in [X] [sic] long term best interest to allow [X] an opportunity to repair and reinstate his primary attachment relationship with Ms Waller.[4]

   [4] Family report dated 11 April 2014 at paragraph 141

6. Ms K said the father did not understand what a significant role the mother played in the child’s life and the implications of the traumatic loss of that relationship for the child.  She said such loss can lead to “toxic stress” which can affect a child’s brain development and affect their concentration and learning.  She said it can also affect a child’s ability to trust and relate to others and to regulate their own behaviour.  Ms K said that the child’s behaviours, which had been interpreted by his parents and caregivers as a tendency to being spoilt and to sulk, are also consistent with a child experiencing difficulties in adjustment after exposure to the trauma of family violence and loss of significant attachment relationships.  She said that in this case the child experienced the two together as he was present during the violent incident between the parties on 24 March 2014, after which he had very limited contact with his mother who was, until then, his primary caregiver.

7. Ms K said that in the father/child relationship it was the child who was highly attuned to his father’s moods and needs rather than the other way around.  She said that children can have more than one significant attachment figure but, because of the father’s work hours and the sudden removal of the child’s mother, he has been deprived of a primary attachment to either parent.

8. At the time she prepared her report, Ms K said the child may be in the process of transferring his attachment focus to Ms N who was the constantly available adult caregiver and provided the child with stability through daily routines.  However, shortly after the assessments, the father and Ms N separated and, by the time of the trial, the father had remarried and the child’s care had been delegated to the father’s fourth wife. 

9. Ms K had assessed Ms N as warm, intelligent, fair and caring, but said the child was not yet confident enough in her to seek physical comfort and physical affection from her as he was able to do with his mother.  She said physical affection is crucial to helping the child to develop better emotional containment and self-regulation.  Ms K said there was a risk of the child becoming completely estranged or alienated from his mother and half-siblings if he continues to live with his father.  She said he will become more aware of the conflict between his parents and their lack of capacity to communicate effectively as he gets older.  She said that children will often align with the stronger parent for their own psychological wellbeing and there is a consequent risk to his relationship with his mother if that occurs.  She said that, although the father had espoused respect for the role of the mother in the child’s life, his actions did not show a genuine understanding of the importance of or support for that relationship.  She assessed the mother as being more flexible and understanding of the child’s need to have a relationship with his father.

10. Ms K said there was a risk that if the child lived with his mother and she did not raise him as a (omitted) the father may withdraw from the child which would cause a further significant disruption in his attachment relationship and cause him to feel abandoned.  She said that as [X] gets older it may be beneficial for him to spend more time with or reside with his father.

11. Ultimately Ms K recommended that the child live primarily with his mother and spend significant time with his father including blocks of overnight time.  She said that if the Court decides the child should live primarily with his father he should spend significant periods of time with his mother including blocks of overnight time.  Ms K noted that all adults agreed the child needed more help with his academic endeavours.  The solution suggested by the father and Ms N was for professional tutors to be engaged because Ms N has three other children to care for and for whom she oversees homework and extra-curricular activities.  However, the mother is available to assist the child every day.

12. Ms K recommended the child undergo a full educational assessment with a paediatric neuropsychologist or educational psychologist to assess the extent of his learning needs.  She also recommended family therapy for the purpose of assisting [X] to repair and reinstate his relationship with his mother and to develop a more secure attachment relationship with his father.  She made some specific recommendations about what organisations might offer that service.  She recommended the parents both attend the “1, 2, 3 Magic” parenting skills course to assist them to understand how best to assist [X] to build emotional resilience and emotional self-regulation and to improve their attunement to the child.  She also suggested the “Keeping Kids in Mind” parenting course offered by CatholicCare may be of assistance in improving the parties’ communication and child focussed decision making. 

13. By the time of the trial the mother had completed the “1, 2, 3 Magic” parenting course and was on the waiting list for the “Keeping Kids in Mind” course.  The father said he had made some enquiries but not enrolled in or undertaken any course despite the fact that the family report was issued more than a year earlier.  There was no evidence that either party had arranged for an educational assessment or therapy to assist the child as recommended.  I intend to make orders to ensure that happens.

14. Ms K gave oral evidence on 14 July 2017 and was cross-examined by counsel for each party.  She was asked by the mother’s counsel about the likely effect on [X] of his separation from Ms N.  Ms K said it came as a great surprise that the father and Ms N had separated.  She said that, besides the adult relationship, there seemed to be a very warm and positive relationship between the father and Ms N’s children and between Ms N and [X].  She said [X] was beginning to seek out her approval and to trust her.  She said she believed [X] would have found it very confusing and upsetting to have Ms N suddenly gone from his life.  She said it was very important for [X] to have a consistent person in his life who is his touchstone, anchor and the person to whom he turns to help him regulate himself.  Clearly, his mother is available and yearning to fill that role.

15. Ms K was asked questions about the possible effect on [X] of the birth of the father’s child with Ms B, his current wife.  Ms K said she observed that [X] very much enjoyed the company of Ms N’s children but sometimes found it hard not to be the centre of attention.  She said he may feel challenged by the attention that is bound to be directed to the new baby and it is important that he does not feel displaced in his father’s affection.  She said he very much looks up to his father and seeks his approval.

16. It was put to Ms K by Counsel for the father that the father’s proposal for the child to live with him and spend time with his mother from after school on Friday until the commencement of school on the following Tuesday every second week plus half of the school holidays was reasonable.  She did not agree.  She said the child’s needs would be better met if he lived with his mother but if the Court determined otherwise, the child’s time with the mother should be much greater than what was proposed by the father.  She was asked whether the child should similarly spend more substantial time with the father than proposed by the mother if the child lived with her.  She responded that the child needs a level of stability and predictability and, if the father is available to spend time with the child, she would be very supportive of additional time with him.  There is however no evidence that the father would be more available to the child than he is now.

17. Ms K agreed that changeovers should occur at school if the parties remain in a highly conflictual or tense relationship but said the ideal would be for the child to be handed from one parent to the other.

18. It was put to Ms K that the mother was a hypocrite because she converted to (omitted) and agreed to the child being raised as a (omitted) and now wanted to change that.  Ms K did not agree.  She said the issue was very complex.  She said the way she understood the matter was that the mother was willing for the child to be raised as a (omitted) but still be exposed to Christian values.  She said she believed the mother would continue to be respectful of the child’s (omitted) heritage.  Ms K was aware that the mother proposed to change the child’s school if the child lived with her.  She said that if the child had established good friendships at school and had a sense of belonging in that community then continuing at the same school may provide a level of stability and reassurance to him, especially if his residence arrangements change significantly.

19. It was put to Ms K by the father’s counsel that she placed a great deal more emphasis on the child’s (omitted) cultural heritage than on his (omitted) cultural heritage.  Ms K disagreed.  She said that although she spoke in her report about the importance of family within the (omitted) culture, she wholeheartedly accepted that family was extremely important within (omitted) culture.  She said she made the reference to (omitted) culture to provide balance in circumstances in which the child was currently being raised wholly within the father’s culture.  It was put to her that the mother had been critical of the father and his extended family during the assessments.  Ms K denied that.  She said the mother was critical of the father’s lack of commitment to spending time with the child but was very complimentary and respectful of his extended family.

20. None of Ms K’s evidence was undermined as a result of cross-examination.  Her assessment of the nature of the relationship the child had with each parent at that time was particularly weighty.

Credibility

1. The applicant mother was a credible witness.  She was quietly spoken, thoughtful and reflective in the witness box.  She conceded reasonably, for instance, acknowledging that she must have pleaded not guilty to the assault charge if she was found guilty after a hearing.  She also demonstrated insight and empathy when giving evidence.

2. The father was also a generally credible witness.  He is a strong personality and very sure of himself.  He stated openly that he insisted on certain requirements in order to be in a relationship with the mother, including that the child be raised in the manner determined by him.  He was unabashed about acknowledging that he expected things to occur as he required.  He showed no insight or empathy about the mother’s position in the relationship. For example, he described her as attempting to dominate him when she questioned him about staying out late drinking with his friends rather than spending time with the family.

3. The father seemed unable to explain some aspects of his evidence, for instance, why he separated from Ms N.  There may be more to why he separated from her but it may simply be, as he stated, that he expects his child’s wishes to be complied with in the same manner as his own.

The legal principles

1. Whenever a Court makes a parenting order it must regard the best interests of the child as the paramount consideration.[5] In determining what is in the child’s best interests the Court must have regard to the primary considerations set out in section 60CC(2) of the Act which are:

   (a)     the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   In applying those considerations the Court must give greater weight to the need to protect the child from harm.

   [5] Section 60CA Family Law Act

2. In this case there is clearly a benefit to the child of having a meaningful relationship with both parents.  The child was exposed to a serious incident of physical violence between the parties on 24 March 2016 but that appears to be the only occasion on which anything of the kind occurred.  I agree with the assessment of Ms K that it was a one off, separation-instigated incident of violence and unlikely to be repeated.  The mother made allegations of coercive and controlling behaviour by the father which included instances of physical violence.  Those allegations were not well particularised, were denied by the father and, as mentioned earlier, the evidence is insufficient for me to make findings one way or the other about them.  I note there have been no allegations of violence since separation, other than the father’s report to police on 22 June 2016 that the mother had assaulted him but which was not relied upon by him in these proceedings.

3. In my view there is some risk of psychological harm to the child arising from emotional neglect due to the sudden changes in his primary carers.  The child had never been separated from his mother until March 2014.  From then on he has spent very limited time with her.  His father has always worked long hours in his business which has meant [X] has been cared for by other people outside of his childcare and school hours.  That role was filled initially by his mother, then his father’s niece, then by his third wife, Ms N, and more recently by his fourth wife, Ms B.  Ms K outlined the risks to the child’s healthy development from the disruption to his attachment relationships.  That risk would be ameliorated by him living with his mother who will be a warm, constant and reliable caregiver.

4. I am satisfied that there is no other risk to the child and that the benefit to the child of a meaningful relationship with both parents is therefore the primary consideration.

5. The Court is also required to take into account the additional considerations set out in section 60CC(3) of the Act. The first of these is any views expressed by the child and any factors that the Court thinks are relevant to the weight that should be accorded those views. [X] is aged 7 years. He did not express clear views about where he wants to live and nor was he asked. Given his age and relative immaturity, very little weight could be put on his views in any event.

6. The next consideration is the nature of the relationship of the child with each parent and other people including grandparents or other relatives.  I am satisfied on the evidence of Ms K that the child’s primary attachment is to his mother with whom he enjoys a loving and affectionate relationship.  That was evidenced very clearly when the child actively sought physical closeness with his mother at the end of the observation session with Ms K.  I accept that the relationship is at risk if the child does not spend significant and substantial time with her.  I am satisfied the child also has a loving relationship with his maternal half-siblings and their partners and that he enjoys his relationship with them.

7. The child also has a close and loving relationship with his father.  I accept the evidence of Ms K that the child looks to his father for approval and for cues about his behaviour and that they share the aspects of their personalities which are more exuberant and outgoing.  I also accept that there are some elements of insecure attachment to his father, which would likely improve with the child spending more time with his father.  However that requires the father to make himself available to the child.

8. The child had a developing and affectionate relationship with Ms N and her children but now has no relationship with them.

9. The father and his wife, Ms B, both asserted the child has a very good relationship with Ms B.  There may be no difficulties in the relationship but, given they have only known each other for a few months, I do not accept that the relationship is yet as strong and positive as asserted, although it may develop in that way over time.  Ms B certainly presented as a kind person who was willing to take on responsibility for the child and treat him as if he were her own.  It is clear the father expected the child to transfer his affections from Ms N to Ms B, accept the latter as a mother figure and accord to her the respect and affection he would show for his own mother.  I accept the evidence of Ms K that the change in primary carers for the child may lead to an increasing level of insecurity and emotional dysregulation in the child.

10. The next consideration is the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues concerning the child, to spend time with the child and to communicate with him.  The mother has been denied the opportunity to participate in major decision making concerning the child, to spend time with him and communicate with him to a significant extent since March 2014.  She very much desires the opportunity to do so and her lack of interaction is not through want of trying.  The father made decisions about major long term issues concerning the child with the mother’s consent and cooperation until separation.  Since then, he has delegated the day to day decision making to other people but has retained responsibility for major decision making.  He has not spent as much time with the child as he could, choosing instead to work from very early in the morning until early evening at least 5 days a week.

11. The next consideration is the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligation to maintain the child.  The father has fulfilled his obligations in that regard, fully supporting the child financially since separation without any contribution by the mother.  The mother has not provided child support.  She did not give any adequate explanation for that.  I note however that the father is in a vastly superior financial position to the mother, running his own business and owning his own home whereas the mother works part time as a (omitted) and is living in rental accommodation.  She also has older children, some of whom are still financially dependent on her.

1. The next consideration is the likely effect of any changes in the child’s circumstances including the likely effect on him of any separation from either parent or any other child or person with whom he has been living.  In my view, the effect on the child of a change in residence is likely to be positive.  His mother is available to care for him outside of school hours and to provide him with physical affection, love and attention.  She is also available to help him with his homework and provide a level of stability and predictability in his care arrangements which will assist him to develop better emotional regulation which, in turn, will assist with his learning.

2. The child is currently being cared for during most days by his step-mother, Ms B.  The child has only known her since January 2017 and a separation from her is likely to be of relatively low impact.  He will continue to see her when spending time with his father.  The effect of separation from the child’s father might have a greater impact but the child really only sees him on weekends and for a short period before he goes to sleep each night.  The weekend time can continue every second weekend as it is now.  Any adverse impact on the child from not seeing his father in the evenings can be mitigated by the father spending quality time with the child during school holiday periods.  On either party’s proposal the child will continue to spend substantial and significant time with his father and will be able to continue to develop his relationship with him in that way. 

3. The next consideration involves practical difficulties but there are none in this case as the parties live reasonably close to each other and both of them are within a short distance of the child’s school.

4. Next is the capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs.  I am satisfied on the evidence that both parents can provide well for the material needs of the child.  It is common ground that the child has had some difficulties at school and needs additional support.  The parents have organised tutors for the child but the mother is also available for the child to give him additional assistance every day after school which the father is unable to do.  His wife, Ms B, would be responsible for caring for the child after school every day if he remains living in his father’s household.  Ms B has some English language skills but required an interpreter to give evidence during the proceedings.  At least in the short term she is likely to have some difficulty providing assistance to the child with his English language studies.

5. I am satisfied on the evidence that the mother has a far greater capacity to provide for the child’s emotional needs which are considerable.  She is well attuned to the child.  Ms K assessed the child as likely to be suffering trauma from having his primary attachment to his mother disrupted as well as being exposed to the parental conflict at separation.  She said it was essential for his wellbeing and healthy long term psychological development to have a consistent and attentive caregiver in order to increase his sense of security.  That sense of security and predictable caregiving can be provided by his mother who loves him deeply, is devoted to his wellbeing and is available to care for him.  I have no doubt that Ms B is positively inclined towards the child and would do her best, but her care is no substitute for the love and attention available to the child from his own mother.

6. The next consideration involves cultural issues.  The child has a rich and varied cultural heritage.  I am satisfied on the evidence that the child will be exposed to his (omitted) and (omitted) culture through his father and extended paternal family.  He will be exposed to his (omitted) and Christian cultural heritage through his mother and her extended family.  I am satisfied the mother has a greater level of tolerance for all aspects of the child’s cultural heritage than his father who has not facilitated a meaningful relationship between the child and his extended maternal family.  I accept the evidence of the mother that the father refused requests by her and her adult children for the child to spend time with them on significant occasions.  I am satisfied on the evidence that the mother will be much more generous and accommodating of the father and his extended family.

7. The next relevant consideration is the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.  The evidence about this is similar to the evidence concerning the capacity of each parent.  I am satisfied that each parent has a good attitude to their responsibilities as a parent.  I am satisfied however that the mother has a great deal more insight into the child’s needs than the father does.  The father provides very well in a material sense for his son but does not have a good understanding of the child’s deeper emotional needs.  He has a responsibility to actively promote the child’s relationship with his mother but has failed to adequately do so.  The mother has a more responsible attitude, is very attuned to the full range of the child’s needs and can better provide for them.

8. The next consideration concerns issues of family violence which have already been discussed.  I am satisfied there was an incident of family violence at separation for which the mother was convicted.  The family violence order made at the time has now expired.  There seems little risk of any further violence between the parties and no risk to the child from it.

9. The next consideration is whether it would be preferable to make an order which is least likely to lead to the institution of further proceedings in relation to the child.  The child has better prospects of having the full range of his needs met if he lives with his mother than if he continued to live with his father.  The child can still have a meaningful relationship with his father almost to the same extent as if he continued living with him.  I am satisfied the mother will promote the child’s relationship with his father but am far from satisfied the father will adequately support the child’s relationship with his mother.  There is therefore a greater likelihood of further proceedings if the child continues to live with his father.

10. For all of these reasons I am persuaded that the child should live primarily with his mother.

Parental responsibility

1. The Court is required to apply a presumption that it is in the child’s best interest for the parents to have equal shared parental responsibility.[6]  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or child abuse.[7]  In this case, the violent incident between the parties at separation means that the presumption does not apply.  The presumption may also be rebutted by evidence that such an order would not be in the best interests of the child.[8] 

   [6] Section 61DA Family Law Act

   [7] Section 61DA(2) Family Law Act

   [8] Section 61DA(4) Family Law Act

2. In this case, both parties seek an order for equal shared parental responsibility for the child.  Such an order would require them to consult each other and make a genuine effort to reach a joint decision about major long term issues.[9]  I am not prepared to make that order as, in my view, it is simply unrealistic to expect the parties to negotiate about major long term issues when there is no equality in their negotiating power or attitude.  The mother is a naturally accommodating person and the father assumes his views will always hold sway.  The only way the parties are likely to reach agreement about major issues concerning the child is if they happen to have the same view or if the mother submits to the father’s view which she has done in the past.  This would not be in the child’s best interests because the father lacks insight into the child’s needs.  This has resulted in him failing to facilitate a meaningful relationship between the child and his mother, and simply expecting the child to transfer his affections to the person arranged by the father to care for the child at any given time.  Given the mother’s superior capacity to anticipate, understand and meet the child’s needs, it is imperative that her views about major long term issues are influential.  In my view the best way to ensure the best interests of the child are met is for the mother to have sole parental responsibility but, before making any major long term decision concerning the child, she should be required to consult the father, give him a reasonable opportunity to have input to the decision and consider his views before making her decision.  In my view she can be trusted to genuinely consider the father’s views.

   [9] Section 65DAC Family Law Act

3. If an order for equal shared parental responsibility is made, the Court must consider whether the child spending equal time with each parent is in the child’s best interests and reasonably practicable, and if it is, the Court is required to consider making such an order.[10]  In this case, given an order for equal shared parental responsibility will not be made those provisions do not apply.  I must still however consider the precise arrangements for the child.  The child spending equal time with each parent is reasonably practicable but in my view is not in the child’s best interests.  The father is largely unavailable to the child during weekdays and has delegated the responsibility for the day to day care of the child to other people who have done their best to fulfil that role.  For the reasons discussed, I am satisfied that it is in the child’s best interests to live primarily with his mother and spend time with his father when his father will be available to him.

   [10] Section 65DAA(1) of the Family Law Act

4. In the event the child lives with the mother, the father proposed that he spend time with the child from after school on Friday until the commencement of school on Tuesday every second weekend.  If the father was available to spend time with the child and take him to school, that would be an attractive option.  I am satisfied on the evidence of the father and Ms B, however, that the father leaves for work by 6am and there is no advantage to the child in spending that extra time in the father’s household.  If the father was able to reduce his work hours on two days a fortnight and take the child to school and collect him, such an order might be in the child’s best interests as it would allow the father to be involved in the child’s school life and extra-curricular life.  As Ms K commented, as the child gets older he may well desire to spend extra time with his father which will be an important part of his development.  Given the mother’s accommodating attitude, I am persuaded that she can be trusted to allow the child to spend some extra time with his father if he persuades her that he is available to spend that time with the child. 

5. The child will need to develop a relationship with his half-sibling due to be born in about 7 months.  If the child spends half of each school holiday period with his father it is likely his father will be at work for some of that time and the child will be with Ms B and the baby.  That will allow his relationship with those people to develop over time.

6. The orders sought by the mother provide for the child to spend time with his father from after school on Friday until the following Sunday every second week and each Wednesday from after school until 6pm.  This provides an opportunity for the father to be involved in the child’s schooling and his afterschool activities if he wishes.  Otherwise the child will spend Wednesday and Friday afternoons with Ms B and his half-sibling.

7. For these reasons, I intend to make orders broadly in line with the mother’s proposals in relation to the time the child spends with his father.

8. There are two specific issues that still need to be determined which involve the child’s school and international travel.

The child’s school

1. The mother made a compelling case for a change of school for the child because of his difficulties coping with core subjects.  She said she felt it was too much for the child to be developing his English language skills at the same time as learning (language omitted) and engaging in (omitted) studies.  The father and his counsel asserted the child had improved in his capacity and performance at school.  The school reports do not support a finding to that extent.  The mother seemed to accept there had been some improvement, presumably as a result of the extra tutoring the child was receiving.  I am mindful that the child returning to live in his mother’s fulltime care is a major change to his arrangements.  I accept the evidence of Ms K that his school life may provide a level of consistency and stability while he undergoes that change.  The mother asserted the child had friends at the local state school which she wanted the child to attend but she was unable to name any of them.  The weight of the evidence suggests the child is likely to have stronger peer relationships at his current school and the mother said she was able to access the school and the child’s teachers with ease.  The mother wanted the child to be exposed to his Christian faith but there will be ample opportunity for that given the child will be living with her.  I am mindful of the mother’s agreement to the child being raised as a (omitted) and attending an (omitted) school in the first place.  I am not persuaded that the potential benefit to the child of changing schools outweighs the possible detriment to him of doing so.  I will order that the child at that school for his primary school education unless the parties otherwise agree.

International travel

1. The father sought an order which permitted the parents to travel internationally with the child. The mother sought an order which prohibited such travel. Neither party presented any evidence about the issue and neither counsel made submissions in support of or against either proposal. In those circumstances I do no propose to make any order about international travel. Given the provisions of section 65Y of the Family Law Act and given there are parenting orders in place, if either party wants to travel internationally with the child they will have to obtain the written consent of the other parent or a Court order. If the issue becomes significant enough, the parties may have to make another application to the Court.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date: 17 August 2017