Webb and Aiken - [2011] FMCAfam 1048

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEBB & AIKEN

[2011] FMCAfam 1048

FAMILY LAW – Parenting – considerations relating to equal shared parental responsibility or sole parental responsibility – determination that best interests of child reflected in equal parental responsibility – substantial and significant time with father appropriate and beneficial to the child – consideration of principles generally – findings as to reasonable practicability.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61C(2), 61D(1) & (2), 61DA(2) & (4), 65DAA(1)-(5), 65DAC, 65DAE(1) & (2)

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238)
Chappell and Chappell (2008) FLC 93-382

Applicant:

MR WEBB

Respondent:

MS AIKEN

File Number:

BRC 9953 of 2010

Judgment of:

Coker FM

Hearing dates:

12 and 13 September 2011

Date of Last Submission:

13 September 2011

Delivered at:

Townsville

Delivered on:

20 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr Galloway

Solicitors for the Applicant:

Schultz Toomey O'Brien Lawyers

Counsel for the Respondent:

Mr Hodges

Solicitors for the Respondent:

M-Y Family Lawyers

ORDERS

That the Father and the Mother have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2006, including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision
Notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.
That the child live with the Mother.
That the child spend time with the Father at all reasonable times as may be agreed but in particular:
(a)From after school Thursday until before school Monday or Tuesday, should the Monday be a public holiday or pupil free day.
(b)For one half of the school holidays as follows:
(i)The first half of the end of Terms 1, 2, 3 and 4 school holidays in even numbered years with the Father and the first half of the end of Terms 1, 2, 3 and 4 school holidays in odd numbered years with the Mother;
(ii)The second half of the end of Terms 1, 2, 3 and 4 school holidays in odd numbered years with the Father and the second half of the end of Terms 1, 2, 3 and 4 school holidays in even numbered years with the Mother.
For the purpose of these Orders, the school holiday time shall commence:
(a)when a parent’s time falls in the first half of the holidays, from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(b)when a parent’s time falls in the second half of the holidays, from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 9.00am on the day the school term commences;
(c)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.
That the operation of the orders with regard to time to be spent during the gazetted school terms be suspended during the gazetted school holidays.
That the child shall spend time with the parents on special occasions as follows:
(a)For Christmas Day and the child’s birthday:
(i)From 2.00pm Christmas Eve until 2.00pm Christmas Day in odd numbered years with the Father and in even numbered years with the Mother;
(ii)From 2.00pm Christmas Day until 2.00pm Boxing Day in even numbered years with the Father and in odd numbered years with the Mother;
(iii)From 2.00pm Boxing Day until 2.00pm on the child’s birthday in odd numbered years with the Father and in even numbered years with the Mother.
(b)With the Father on Father’s Day (in a non-contact weekend) from 9.00am until 5.00pm with the Father to be responsible for the collection and return of the child;
(c)With the Mother on Mother’s Day (if a non-contact weekend) from 9.00am until 5.00pm with the Mother to be responsible for the collection and return of the child;
(d)In the event that the Term 1 gazetted school holidays do not include the Easter long weekend, as agreed between the parties, but failing agreement, the Father to spend time with the child from 6.00pm on the Thursday prior to Good Friday until 6.00pm Easter Saturday in odd numbered years and from 6.00pm Easter Saturday until 6.00pm Easter Monday in even numbered years and the Mother to spend time with the child from 6.00pm on the Thursday prior to Good Friday until 6.00pm Easter Saturday in even numbered years and from 6.00pm Easter Saturday until 6.00pm Easter Monday in odd numbered years.
(e)That should the child not be in the care of the Father on the Father’s birthday, then the Father will spend time with the child from 9.00am until 5.00pm on a non-school day, however, if a school day, for at least two hours.
(f)That should the child not be in the care of the Mother on the Mother’s birthday, then the Mother will spend time with the child from 9.00am until 5.00pm on a non-school day, however, if a school day, for at least two hours.
That the Father is to be responsible for the collection and return of the child during the school term, during school holiday periods Father to be responsible for collection and child and Mother to be responsible for collection of child at conclusion of holiday time.
That unless otherwise agreed between the parties, that the child will attend day care/school as agreed between the parents and failing agreement as follows:
(a)At her current day care centre until 2012, when she attends Prep;
(b)[P] primary school for Prep in 2012;
(c)A primary school in the catchment area, as it applies to the Mother’s place of residence;
(d)A high school in the catchment area, as it applies to the Mother’s place of residence.
The child shall have telephone communication with the parents at such times as the child reasonably requests and in relation to such communication each parent shall:
(a)Ensure that the child is available to receive the telephone call;
(b)Arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstance the child misses the telephone call from that parent;
(c)Ensure that the child has privacy during the conversation.
That the parents authorise, by this Order, the school or daycare centre attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
That in the event either party is informed by a medical practitioner of the need for a specialist medical appointment then that parent shall notify the other parent within 24 hours and provide the parent with a copy of the referral and details of the appointment and invite the other parent to attend the appointment.
That the Mother will provide the Father with the most current version of the child’s asthma plan or current treatment requirements within 24hrs of any changes or at the commencement of the next time that the child spends with the Father or the paternal grandmother, whichever is the earliest.
That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That the process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:
(a)Family Dispute Resolution Practitioner be jointly appointed;
(b)The parents shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;
(c)The parents shall pay the costs of he Family Dispute Resolution Practitioner equally;
(d)In the event that the parents are unable to, for any reason, have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(e)The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list;
(f)If the Father fails to choose then the Mother may choose.
That unless there are some emergent circumstances, before an Application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in the preceding Order.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 9953 of 2010

MR WEBB

Applicant

And

MS AIKEN

Respondent

REASONS FOR JUDGMENT

These proceedings relate to orders sought with regard to the parenting of the child [X]. [X] was born [in] 2006 and is therefore at this stage four years of age. She is the child of Mr Webb, whom I shall refer to as the father, and Ms Aiken, whom I shall refer to as the mother.
The proceedings were commenced on 25 October 2010 when the father filed an application seeking orders on both a final and interim basis in relation to the arrangements with regard to the parenting of the child. The orders that have been sought have over time varied to some extent, but were finally encapsulated within the amended application filed on 4 August 2011. The orders were in fact repeated, though in exactly the same terms in the case outline which was filed on 6 September 2011. The orders sought by the father were as follows:
1.That all previous Orders and Parenting Plans be discharged.
2.That except as otherwise stated the Father and the Mother have equal shared parental responsibility for the major long term issues of the child [X] born [in] 2006.
3.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
a.they shall inform the other parent about the decision to be made
b.they shall consult with each other on terms that they agree
c.they shall make a genuine effort to come to a joint decision.
4.That notwithstanding the provisions of Order 3:
a.the Mother shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with her
b.the Father shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with him.
Time with the parents
5.That the child is to live with the Mother, and spend time with and/or communicate with the Father as agreed between the parents and if they fail to agree then as follows:
a.that the child shall live with the Father at all times that she is not living with or spending time with the Mother;
Until the child commences School:
b.that the child spend time with the Father every second weekend as agreed and failing agreement from Friday afternoon after daycare (6.00pm) to commencement of daycare on Monday with the Father to collect the child from daycare at commencement of time and deliver the child to daycare at conclusion of time;
c.each week the child will spend time at the Father’s residence from 6.30am on Tuesday morning until 6:00pm on Wednesday afternoon. The parties acknowledge that the paternal grandmother will be responsible for caring for the child during the hours the Father is at work and in the event that the paternal grandmother is unable to care for the child on these days then the Father will be responsible for making alternative arrangements. The paternal grandmother or the father will be responsible for collecting the child from the mother’s residence at commencement of time and the Mother will be responsible for collecting the child from the Father at conclusion of time at the Father’s residence;
d.that the Father will be entitled to spend holiday time with the child for a period of 4 weeks in total during 2011 corresponding with the Father’s annual leave and the father will give the Mother at least 2 weeks written notice of his intention to exercise this time, such time not to exceed 2 weeks at any one time;
e.that the Father will be entitled to spend time with the child for special occasions such as family birthdays, weddings, engagement parties and other special or significant events, provided the Father has given at least 1 week written notice to the mother of his intention to do so;
After the Child Commences School
f.every second weekend from Friday afternoon after school to commencement of school on Monday with the Father to collect the child from school at commencement of time and deliver the child to school at conclusion of time;
g.for one night during each week from after school until commencement of school on a night (which is the same night each week) to be agreed between the parties once the child has commenced school.
6.That the child shall spend time with her parents for school holiday periods as follows:
a.being the first half of the autumn, winter, spring and summer school holidays in even numbered years with the Father and in odd numbered years with the Mother;
b.the second half of the autumn, winter, spring and summer school holidays in odd numbered years with the father and in even numbered years with the Mother;
c.for the purpose of these Orders, the school holiday time shall commence:
i.when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
ii.when a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 9.00am on the day the school term commences;
iii.school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.
Special Occasions
7.That the child shall spend time with her parents on special occasions as follows:
a.for Christmas Day and [X]’s birthday:
i.from 2.00pm Christmas Eve until 2.00pm Christmas Day in odd numbered years with the father and in even numbered years with the Mother;
ii.from 2.00pm Christmas day until 2.00pm Boxing Day in even numbered years with the Father and in odd numbered years with the Mother;
iii.from 2.00pm Boxing day until 2.00pm on the child’s birthday (27 December) in odd years with the Father and in even years with the Mother.
b.with the Father on Father’s Day (in a non-contact weekend) from 9.00am until 5.00pm with the father to be responsible to collect and return the child;
c.with their Mother on Mother’s day (if a non-contact weekend) from 9.00am until 5.00pm with the Mother to be responsible for collecting and returning the child;
d.with each parent for Easter, as agreed between the parties, but failing agreement the Father to spend time with the child from 6.00pm on the Thursday prior to Good Friday until 6.00pm Easter Saturday in odd numbered years and from 6.00pm Easter Saturday until 6.00pm Easter Monday in even numbered years and the Mother will spend time with the child from 6.00pm on the Thursday prior to Good Friday until 6.00pm Easter Saturday in even numbered years and from 6.00pm Easter Saturday until 6.00pm Easter Monday in odd numbered years.
8.The child shall communicate with her parents on the telephone at such times as the child reasonably requests and in relation to such communication each parent shall:
a.ensure that the child is available to received the telephone call;
b.arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstance the child misses the telephone call from that parent;
c.ensure that the child has privacy during the conversation.
9.That when the child is spending time with a parent during school holidays that parent shall be at liberty, during their school holiday time, to take the child overseas and in relation to same:
a.the travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates, a contact telephone number for the travelling parent and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child will stay) at least 28 days prior to scheduled departure;
b.upon receipt of same the other parent shall forthwith release to the travelling parent the passport for the child;
c.the travelling parent shall then provide to the other parent a copy of the return air tickets for the child;
d.during the trip the travelling parent shall arrange for the child to telephone the other parent on at least one occasion in each week;
e.each party will be at liberty to remove the child from the Commonwealth of Australia for up to0 2 weeks which may include the other parent’s time with the child, provided the travelling parent has provided at least 4 weeks written notice and the parties have agreed to arrange make up time for the non-travelling parent within 3 months of return from travel.
Time with Paternal Grandmother
10.That the paternal grandmother, who is the Second Applicant, will spend time with the child at any time the child is spending with the Father. In addition to this time the paternal grandmother will be entitled to spend time with the child as follows:
a.on Tuesday of each week from 6.30am with the paternal grandmother to collect the child from the Mother at commencement of time until 6.00pm with the paternal grandmother to deliver the child to the Father at conclusion of time until the child commences school after which this time will cease;
b.on Wednesday of each week from 6.30am (or as agreed with the father) with the paternal grandmother to collect the child from the Father at commencement of time until 6.00pm with the Mother to collect the child from the Father’s home at conclusion of time until the child commences school after which this time will cease;
c.one weekend every 5 weeks from midday on Saturday until 6.00pm on Sunday evening with the paternal grandmother to be responsible for collecting the child from the Mother or the Father at commencement of time and delivering the child to either the Mother or the Father at conclusion of time;
d.five days of holiday time once per year at a time to be nominated by the paternal grandmother provided she has provided the parties with at least 4 weeks written notice of her intention to exercise this time and this time does not interfere with the child’s schooling. The paternal grandmother is to be fully responsible for collecting the child at commencement and conclusion of time;
e.that the paternal grandmother shall be entitled to participate and attend any special events at the child’s school and any extracurricular activities that the child is undertaking and the parties will keep her informed of such events/activities.
Collection and Delivery
11.That except as otherwise ordered, the Father, Mother, paternal grandmother or their respective families or partners shall collect the child from and return her to daycare/school during times that they have the child.
12.That if the child is not attending daycare/school:
a.the child shall be collected by the Father or his nominee from the Mother or her nominee at the commencement of his time with the child at the Mother’s residence;
b.the child shall be collected by the Mother or her nominee from the Father or his nominee at the conclusion of his time with the child at the Father’s residence.
13.That each parent shall deliver and return the child’s clothing, school supplies and belongings at the child’s clothing shall be returned in a clean condition.
Schooling
14.That the child will attend [S] School for Prep to Year 6 with the costs of the education to be met equally by the parties.
15.That the child will attend high school as agreed between the parties.
Exchange of Information
16.That the Mother and Father shall:
a.keep the other parent informed at all times of their residential address and landline contact telephone number;
b.keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child;
c.inform the other parent as soon as reasonably practicable (but within 24 hours) of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
17.That the parents authorise, by this Order, the school or daycare centre attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
18.That in the event either party is informed by a medical practitioner of the need for a specialist medical appointment then that parent shall notify the other parent within 24 hours and provide the parent with a copy of the referral and details of the appointment and invite the other parent to attend the appointment.
19.That the Mother will provide the Father with the most current version of the child’s asthma plan or current treatment requirements within 24hrs of any changes or at the commencement of the next time that the child spends with the Father or the paternal grandmother, whichever is the earliest.
20.That during the time the child is with either parent, that parent shall:
a.respect the privacy of the other parent and not question the child about the personal life of the other parent;
b.speak of the other parent respectfully;
c.not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
21.That the process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:
a.Family Dispute Resolution Practitioner be jointly appointed;
b.The parents shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;
c.The parents shall pay the costs of he Family Dispute Resolution Practitioner equally;
d.In the event that the parents are unable to, for any reason, have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
e.The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list;
f.If the Father fails to choose then the Mother may choose.
22.That unless there are some emergent circumstances, before an Application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in the preceding Order.

The mother responded to the application on 13 December 2010. Again, there were some variations included along the way, but in her final amended response filed on 24 August 2011 she sought orders which provided, in particular, for shared parental responsibility, though it was stressed to me by counsel for the mother that it was not equal shared parental responsibility, and also proposed various arrangements in relation to time to be spent, as well as detailing more specifically issues in relation to the more mundane, though important, aspects of the child’s life, including special days and times, as well as, of course, specifically arrangements with regard to educational arrangements, passport and overseas travel arrangements, and extra-curricular activities.
In particular, the proposed orders had a subheading, “Time With the Paternal Grandmother”, and simply noted that the paternal grandmother was to have the opportunity to spend time with [X] during the times that the child was with the father, as may be agreed between the father and the paternal grandmother, and at other times as may be agreed between the mother, the father and the grandmother. There was specifically a notation, however, that the grandmother would have liberty to attend day care and school functions, to which grandparents are invited.
It was noteworthy that that was included because there was previously an application where orders were sought in respect of the grandmother intervening in the proceedings and becoming the second applicant. That application was unsuccessful and was dismissed by Spelleken FM on 26 August 2011. Notwithstanding that, the father in the orders sought by him, specifically sought the inclusion of an order relating to time with the paternal grandmother.
That particular aspect of the matter was dealt with at the commencement of the proceedings, and I specifically found that the order sought should be dismissed, in light of the fact that the grandmother was no longer, or at all, a party to the proceedings, though it, of course, did not prevent the court from making orders which would appropriately provide for opportunities for the grandmother to spend time with [X].
I have not set out specifically the orders that were sought by the mother in relation to this matter as detailed in the amended response filed on 24 August 2011, because on the second day of the hearing an indication was given, that following evidence heard in relation to the matter, the mother’s instructions with regard to the arrangements with regard to parenting had changed and as a result of that, new orders were to be sought. Those orders were prepared afresh and specifically included a notation to the effect that the mother sought sole parental responsibility for the care, welfare and development of a long-term nature involving the child [X].
Additionally, some other small changes, more by way of clarification, were included and referred to in orders 13.1.2 as well as some further clarification as necessarily required in order 15 of the proposed orders. The final orders therefore that were asked to be made in relation to these proceedings were those which were included in the draft handed to the court on 13 September 2011. The orders as sought by the mother were in these terms:
Parental Responsibility
1.That subject to Orders 6 and 7 herein, the Mother shall have sole parental responsibility for the care, welfare and development of a long term nature involving the Child, [X], born [in] 2006.
Orders for day to day care, welfare and development
2.That the Mother shall have sole responsibility for making decisions about the Child’s day to day care, welfare and development during times the Child lives with or spends time with the Mother.
3.Subject to Court Order, that the Father shall have sole responsibility for making decisions about the Child’s day to day care, welfare and development during time the Child spends time with the Father.
Orders for Parental Communication
4.That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:
4.1any medical problems or illness suffered by the Child, whilst in the care of the Father;
4.2any medication that has been prescribed for the Child;
4.3any proposed specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the Child;
4.4any social or school functions which the Child is to attend;
4.5the residential address of the Child whilst staying with the Father;
4.6the telephone contact number of the Child whilst staying with the Father;
4.7any other matter relevant to the welfare of the Child.
5.That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:
5.1any medical problems of illness suffered by the Child, whilst in the care of the Mother;
5.2any medication that has been prescribed for the Child;
5.3any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the Child;
5.4any social or school functions which the Child is to attend;
5.5the residential address of the Child whilst living with the Mother;
5.6the telephone contact number of the Child whilst living with the Mother;
5.7any other matter relevant to the welfare of the Child.
Orders for Dispute Resolution
6.Subject to any Domestic Violence Orders and on the Undertakings of the Father:
6.1That the Mother and the Father shall use their best endeavours to agree issues about:
a.    the education of the Child – both current and future;
b.    the religion of the Child;
c.    the health of the child;
d.    any change to the Child’s living arrangements that may make it significantly more difficult for the Child to spend time with any parent.
7.Subject to any Domestic Violence Orders and on the Undertakings of the Father:
7.1That in the event the parents cannot reach a joint decision about:
e.   a major long-term issue involving the Child; or
f.    the interpretation of these Orders; or
g.   the implementation of these Orders; or
h.   enforcement of these Orders; which involve the Child,
each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.
8.Subject to any Domestic Violence Orders on the Undertakings of the Father:
8.1That before an Application is made to the Court for a variation of these Orders to take account of the changing needs or circumstances of the Child or of the parties, each of the parents is to take the following steps:
i. the Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act;
ii. the Father and the Mother shall each participate in Family Dispute Resolution with a person authorised under the Family Law Act (“Dispute Resolution Clause”).
9.In the event a party does not attend Family Dispute Resolution within 21 days of written request by the other party, then that party is at liberty to make an Application to the Family Courts.
Day care/School Events
10.Each parent may attend at [X]’s day care/school for the purpose of any function or activity attended by parents.
Living with the Mother and spending time with the Father
Orders for living with the Mother
11.The Child shall live with the Mother.
12.That the father shall spend time with the Child, subject to his compliance with Undertakings of the Father in relation to no alcohol abuse, no ingesting illicit drugs and maintaining psychiatric treatment and medication as follows, that the Father:
12.1attends with Dr L, Psychiatrist, at least every six months ( and provide the Mother with copies of the receipts for the same);
12.2takes all prescribed medication and keeps all medication locked away;
12.3shall not take illicit drugs and not drink alcohol, and shall ensure that he otherwise be and remain sober during the times spent with the Child, and is not recovering from excessive alcohol or drugs (i.e. hangover);
12.4that whilst the Child is in the care of the Father, the Child shall not be placed in an environment in which persons coming into contact with the Child are drinking excessive alcohol, under the influence of any illicit substance or undertaking risk-taking behaviours, other than immediate family functions; and shall otherwise remover her from any risk;
12.5shall contact the Mother at any time in relation to the Child, and that the Father shall not otherwise contact the Mother;
13.Subject to paragraph 12 hereof, that the Father spend time with the Child as agreed between the parties and failing agreement in accordance with the Orders of this Court, as follows:
13.1Until the Child Commences Prep School in 2012:
13.1.1subject to paragraph 13.1.3 hereof, that the child spend time with the father every second weekend as agreed between the parents and failing agreement, from Friday afternoon after Daycare to Sunday afternoon and to effect same the following shall apply:
13.1.1.1the Father, Father’s Mother or other party as agreed between the parents shall collect [X] from daycare by no later than 5:00pm every second Friday; and
13.1.1.2the Father, Father’s Mother or other party as agreed between the parents shall return [X] to the Mother’s residence by 5:00pm on the Sunday afternoon;
13.1.2subject to paragraph 13.1.3 hereof, that the child spend time with the Father from after day care Wednesday until 7:30pm on Wednesday night, and to effect same the following shall apply:
13.1.2.1the Father, Father’s Mother or other party as agreed between the parents shall collect [X] from after day care Wednesday; and
13.1.2.2the Father, Father’s Mother or other party as agreed between the parents shall return [X] to the Mother’s residence by 7:30pm Wednesday night;
13.1.2.3in the event that the Father is unable to care for the child on these days, then the Father will be responsible for making alternative arrangements and be responsible for any fees in relation to same.
13.1.3That the child spend up to two weeks extended times with the Father being two occasions each of a maximum period of 7 days, at times to be agreed, with the Father and Child principally living with his mother or other agreed person during the said periods.
13.2After the Child Commences Prep School in 2012:
13.2.1subject to paragraph 13.2.3, that the child spend time with the Father every second weekend from Friday afternoon after school, to the commencement of School on Monday and to effect same the following shall apply:
13.2.1.1the Father, Father’s Mother or other party as agreed between the parents shall collect the Child from school at 3:00pm, or otherwise organise and pay for [X] to attend after school care until the Father, Father’s Mother or other party as agreed between the parents can collect [X], being by no later than 5:00pm; and
13.2.1.2the Father, Father’s Mother or other party as agreed between the parents, shall deliver the Child to school the following Monday at the school commencement time, or otherwise organise and pay for [X] to attend before school care until the school commencement time;
13.2.2subject to paragraph 13.2.3, that the child spend time with the Father each week from after school on Wednesday afternoon until 7:3pm on Wednesday night, and to effect same the following shall apply:
13.2.2.1the Father, Father’s Mother or other party as agreed between the parents shall collect [X] after school at 3:00pm, or otherwise organise and pay for [X] to attend after school care until the Father, Father’s Mother or other party as agreed between the parents can collect [X], being by no later than 5:00pm; and
13.2.2.2the Father, Father’s Mother or other party as agreed between the parents shall return [X] to the Mother’s residence by 7:30pm that night.
Holidays
13.2.3Paragraph 13.2 is subject to the child spending holiday time with the Father as follows:
13.2.3.1The Child spending holiday time with the Father in even numbered years as follows:
a.The first week of the June/July gazetted school holidays;
b.The first week of the September gazetted school holidays.
13.2.3.2The Child spending holiday time with the Father in odd numbered years as follows:
a.The second week of the June/July gazetted school holidays;
b.The second week of the September gazetted school holidays.
13.2.3.3The Child spending holiday time with the Father for up to one week during the Christmas holidays, other than on [X]’s Birthday and in the Christmas Eve to Boxing Day period, at a time to be agreed between the parties, and failing agreement, in the second last week of school holidays from 9:00am Sunday morning until 9:00am the following Sunday morning.
13.3That the extended times spent by the father with the child shall be times that the Father and Child principally lives with his Mother or other agreed person during the said periods, and the father shall notify the mother o f the identity of the other person in advance of the said extended times;
13.4For the purpose of these Orders, ‘school holidays” shall be deemed to commence at the close of school on the day the school term finishes and conclude at 9.00am on the day the child returns to school.
14.The arrangements in paragraph 13 are subject to the following specific arrangements for particular Special Days and Times.
15.That the child shall spend time with each of her parents on special occasions as follows:
15.1with her Father on Father’s Day from 9.00am until 5.00pm (if [X] is not ordinarily staying with the Father at that time), with the Father to be responsible for collecting and returning the child to the Mother’s residence;
15.2with her Mother on Mother’s Day from 9.00am until 5.00pm (if [X] is not ordinarily staying with the Mother at that time) with the Mother to be responsible for collecting and returning the child to the Father’s residence;
15.3In the event that the Father’s birthday occurs on a school day, [X] will spend from after school on the Father’s Birthday until 9:00am the commencement of school the next day with the Father, if [X] is not ordinarily staying with the Father at that time, and to effect same:
15.3.1the Father, Father’s Mother or other party as agreed between the parents shall collect the Child from school at 3:00pm, or otherwise organise and pay for [X] to attend after school care until the Father, Father’s Mother or other party as agreed between the parents call collect [X], being by no later than 5:00pm;
15.3.2and the Father, Father’s Mother or other party as agreed between the parents shall deliver [X] to either:
15.3.1.1school the following day (if the following day is a school day) at the school commencement time, or otherwise organise and pay for [X] to attend before school care until the school recommences; or
15.3.1.2the Mother’s residence by 9:00am the following day.
15.4In the event that the Father’s Birthday occurs on a Saturday or a Sunday when [X] is not ordinarily staying with the Father, from 9:00 until 5:00pm on his Birthday;
15.5In the event that the Mother’s Birthday occurs on a school day, [X] will spend from after school until 9:00am the commencement of school the next day with the Mother, if [X] is not ordinarily staying with the Mother at that time, and to effect same:
15.5.1the Mother, or Mother’s partner or other party as agreed between the parents shall collect the Child from school at 3:00pm, or otherwise organise and pay for [X] to attend after school care until the Mother, or Mother’s partner can collect [X], being by no later than 5:00pm; and
15.5.2the Mother, or Mother’s partner or other party as agreed between the parents shall deliver [X] to either:
15.5.2.1school the following day (if the following day is a school day) at the school commencement time, or otherwise organise and pay for [X] to attend before school care until the school recommences; or
15.5.2.2the Father’s residence by 9:00am the following day.
15.6In the event that the Mother’s Birthday occurs on a Saturday or a Sunday when [X] is not ordinarily staying with the Mother, from 9:00am until 5:00pm on her Birthday;
15.7Unless otherwise agreed in writing between the parties, [X] will spend time at Easter with each of the parents as follows:
15.7.1In even numbered years, [X] will spend time with the Father from after school on the Thursday immediately before Good Friday until 5:00pm on Easter Monday, and to effect same the following shall apply:
15.7.1.1on the Thursday immediately before Good Friday, the Father, Father’s Mother or other party as agreed between the parents shall collect the Child from school at 3:00pm, or otherwise organise and pay for [X] to attend after school care until the Father, Father’s Mother or other party as agreed between the parents can collect [X], being by no later than 5:00pm;
15.7.1.2at the conclusion of this period, the Father, Father’s Mother or other party as agreed between the parents shall deliver [X] to the Mother’s residence for the conclusion of the school holidays by 5:00pm and the arrangements specified in clause 13 (as appropriate) shall re-commence;
15.7.2In odd numbered years, [X] will spend time with the Mother from after school on the Thursday immediately before Good Friday until 5:00pm on Easter Monday and to effect same the following shall apply:
15.7.2.1on the Thursday immediately before Good Friday, the Mother, Mother’s partner or other party as agreed between the parents shall collect the Child from school at 3:00pm, or otherwise organise and pay for [X] to attend after school care until the Mother, Mother’s partner or other party as agreed between the parents can collect [X], being by no later than 5:00pm;
15.7.2.2at the conclusion of this period, the child shall remain with the Mother and the arrangements specified in clause 13 (as appropriate) shall re-commence.
15.7.3In odd numbered years the Father shall have the Easter holiday week, but if such week immediately proceeds or follows Easter public holidays, time shall conclude at 5:00pm Thursday before Easter or commence at 5:00pm Easter Monday, respectively.
[X]’s Birthday and Christmas
16.[X] will spend time on Christmas and her Birthday with the Mother and Father as agreed between the parties and failing agreement:
16.1In odd numbered years:
16.1.1[X] will spend from 5:00pm on the 24 December (Christmas Eve) until 12:00pm Christmas Day with the Mother;
16.1.2[X] will spend from 12:00pm Christmas day until 2:00pm on 27 December with the Father;
16.1.3[X] will spend from 2:00pm on 27 December until 10:00am on 28 December with the Mother;
16.1.4At the conclusion of this Christmas/Birthday period, [X] will remain in the care of the Mother and clause 13 (as appropriate) shall re-commence.
16.2In even numbered years:
16.2.1[X] will spend from 5:00pm on the 24 December (Christmas Eve) until 12:00pm Christmas Day with the Father;
16.2.2[X] will spend from 12:00pm Christmas Day until 2:00pm on 27 December with the Mother;
16.2.3[X] will spend from 2:00pm on 27 December until 10:00am on 28 December with the Father;
16.2.4At the conclusion of this Christmas/Birthday period, the Father shall return [X] to the Mother’s residence and clause 13 (as appropriate) shall re-commence.
Collection and Delivery
17.That other than as set out in these Orders, that the changeovers shall occur at places agreed between the parties and failing agreement:
17.1if the child is at day care/school/vacation care that day, then the party who is commencing their time shall collect [X] from day care/school/vacation care at the commencement of their time;
17.2if the child is not at school/day care/vacation care that day, then the party who is ceasing his or her time shall transport the child to the residence of the party who is commencing his or her time with the child; or as otherwise agreed between the parties.
18.That other than set out in these Orders, the Mother, Mother’s Partner, Father, Father’s Mother or other person as agreed between the parents, shall be responsible for taking the child to/from any changeovers.
Time with the Paternal Grandmother
19.That the Paternal Grandmother may spend time with the Child during the Father’s times with the Child, as agreed between the Father and the Paternal Grandmother; and other times as agreed between the Mother, Father and Grandmother.
20.That the Grandmother be at liberty to attend day care/school functions to which grandparents are invited.
Schooling
21.That unless otherwise agreed between the parties, that [X] will attend day care/school as agreed between the parents and failing agreement, as follows:
21.1[X] shall continue to attend her current day care centre until 2012, when she attends Prep;
21.2[X] shall attend [P] primary school for Prep in 2012;
21.3[X] shall attend a primary school in the catchment area, as it applies to the Mother’s place of residence;
21.4[X] shall attend high school in the catchment area, as it applies to the Mother’s place of residence.
Passport and Overseas Travel
22.That when the child is spending time with a parent during school holidays, that parent shall be at liberty, to take the child overseas and in relation to same:
22.1the travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates, a copy of the return tickets, a contact telephone number for the travelling parent and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child will stay) at least 28 days prior to scheduled departure;
22.2the parties shall ensure that the travelling party has the passport of the Child for the trip and that the passport is returned to its agreed holding place within 7 days of the return of the Child to Australia; and
22.3the holding place of the Child’s passport is to be as agreed by the parties and failing agreement the holding place shall be with the Mother;
22.4each party agrees to sign all necessary documents and do all things necessary to ensure the Child has a valid passport, including signing and returning any passport Application to the requesting party within 14 days of any request, and both parties shall share equally any costs incurred in relation to same;
22.5During any overseas trip, the travelling parent shall arrange for the child to telephone the other parent on at least one occasion each week.
22.6Each party will be at liberty to remove the child from the Commonwealth of Australia for up to 3 weeks per year (save for the Father no more than 1 week without prior consent of the Mother) which may include the other parent’s time with the child, provided the travelling parent has provided at least 3 weeks written notice and the parties have agreed to arrange make-up time for the non-travelling parent within three (3) months of return from travel.
Extra-Curricular Activities
23.The Mother and the Father shall endeavour to confer prior to enrolling [X] in any extra-curricular activities and both parents shall be at liberty to attend any extra-curricular activities in which [X] participates, regardless as to which parent has enrolled them in any particular activity.
24.Subject to paragraph 25 hereof, unless otherwise agreed in writing between the parties, the party who enrols [X] in a new activity shall ensure that that particular activity occurs during his or her times with [X] in accordance with these Orders and that parent will be liable for paying any and all costs associated with same.
25.That unless otherwise agreed between the parties, the Father shall take [X] whilst she is enrolled in same to her [omitted] class/es, located at [omitted] on each Saturday when [X] is in his care and:
25.1he shall pay for [X]’s class/es that day;
25.2both parties shall ensure that [X] attends the end of year concert, regardless of whose care [X] is in on that day and both parents are entitled to attend at the end of year concert.
Orders for Communication
26.Telephone communication is to be agreed between the parties and failing agreement as follows:
26.1That the parties shall ensure that the Child shall have the following communication with the Father:
26.1.1Regular telephone communication during times the Child lives with Mother as agreed between the parties, failing agreement, at least three times each week;
26.2That the parties shall ensure that the Child shall have the following communication with the Mother:
26.2.1Regular telephone communication during times the Child stays with the Father as agreed and failing agreement, at least one time each week;
26.3That each parent shall encourage the Child to telephone the other parent for the purposes of regular telephone communication with the other parent;
26.4Should the Child be unable or unwilling to come to the telephone, the parent with the Child shall return the telephone call for the Child to the other parent at the earliest reasonable opportunity;
26.5That each of the parties shall keep the other informed of the habitual primary residential address of the Child (and shall advise any change of residence within 48 hours) with any changes in contact telephone numbers (and any mobile telephone numbers), including such information as address and contact telephone number at which the Child might be contacted by the other parent during school holiday periods.
Additional orders
27.That the parents authorise, by this Order, the school or day care centre attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at the expense of the parent who makes the request).
28.That during the time the child is with either parent, that parent shall:
28.1Respect the privacy of the other parent and not question the child about the personal life of the other parent;
28.2Speak of the other parent respectfully in the hearing or presence of the child;
28.3Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Review
29.That the Mother and Father shall seek to undertake a Review Process for the times spent with the father, no later than by the end of 2015, or otherwise as agreed between the parties in writing, failing which, these Orders shall continue until the child is eighteen, subject to any appropriate Variation or further Court Order.
30.That the Father pay the Mother’s costs of and incidental to this Application.
Notation
31.That the mother seeks that the Father, Father’s partner and the Grandmother agree to attend a Triple P Parenting Program within six (6) months from the date of these Orders.
32.That pursuant to Section 65DA(2) of the Family Law Act 1975 (as amended) the particulars of the obligations that these Orders create and the particulars of the consequences that may flow if a person contravenes these Orders and these particulars are included in the Notation of the Orders.
33.That the Mother and Father are solely responsible for any major decisions in relation to [X].

In the end, like so many matters that come before the court, there was a great deal of agreement, but also, unfortunately some fundamental issues which gave rise to concerns held by either one parent or the other.
In this matter I had the advantage and benefit of some additional independent evidence in relation to certain of the issues, including particularly with regard to the issue of the father’s mental health. That did loom large in relation to the case presented by the mother in respect of the arrangements with regard to the parenting of [X] and in that regard expert evidence was provided by the father’s consultant psychiatrist, Dr L, and I shall comment upon the evidence of Dr L a little later in these reasons.
Also available in relation to the proceedings and in fact forming an exhibit to these proceedings, was the family report prepared by Mr S, on 3 March 2011. The report by Mr S, a registered psychologist, was of particular assistance in relation to the determination of this matter, though it should be noted that Mr S was not required by either party for cross-examination.
There were also, in addition to the parents themselves, a number of other witnesses who provided affidavit evidence in relation to the matter, though not all were required for cross-examination. I intend to comment as appropriate in relation to the evidence of each of those other witnesses before turning then to the evidence of the parents themselves, it being, I think, seminal in relation to the final determination of this matter.
On the part of the father, it was understandable that two significant women in his life gave evidence in relation to these proceedings. The first of those women was the father’s fiancée, Ms E. Ms E had filed an affidavit on 12 August 2011, though the affidavit was quite short. In particular she noted at paragraphs 4 and 5 the following:
I fully support Mr Webb with his Application and I am prepared to assist Mr Webb in any way I can when it comes to [X]’s care.
During the time I have spent with Mr Webb whilst [X] has been in his care I have observed Mr Webb to be a loving, caring father.
Ms E was required for cross-examination, though her cross-examination was not lengthy and it was noteworthy that those two matters detailed in paragraphs 4 and 5, to which I have referred, and in particular her observations of the father’s interaction with the child, particularly as a loving and caring father, was not in any way challenged in relation to this matter.
The witness was asked about what she knew of the father’s past, including issues with regard to drug and alcohol abuse, and issues with regard to mental health. To the father’s credit, as well as, of course,

Ms E’s credit, she acknowledged that she knew that the father took medication, that it was taken for a mood disorder as well as for depression, and that she knew of his past in relation to both alcohol and drug issues. She also confirmed that she knew that the father had been suicidal in the past, and that she had been told of that, by the father.
I thought Ms E was a most impressive witness. She gave me the distinct impression that she realised the distinction between the role of a step-parent and the role of a parent and the importance of standing back from that relationship between a child and a biological parent, but of being there to support her partner as would be the case here, in his interaction with the child. Ms E, I thought, was a witness of particular genuineness and one whose evidence could be relied upon as being an accurate reflection of her observations and given in an honest and frank manner.
I also had the opportunity of seeing the father’s mother, the paternal grandmother, Ms W, in the witness box. Ms W is a [occupation omitted]. She has a number of qualifications, all in and about the area of health, including [omitted].
Ms W impressed me as a genuine woman who was there to support her son, but recognised that there had been difficulties in the past, no doubt contributed to by both the mother and the father, and that her primary concerns here related to the child [X].
I was particularly impressed with the fact that Ms W, in cross-examination, was immediately asked what positives she was able to make reference to in relation to the mother’s parenting. She indicated that the mother was a good person, a good citizen and a good mother and that she loved her child very much. When pressed, Ms W was able to go on to say that the mother had a great interest in her child and assisted [X] in her activities. In particular, when asked to be specific, she confirmed that in her opinion the mother was doing a good job.
Of course, that was not always the case in relation to this matter, and it is clear that there were certainly situations in the past where Ms W had less than a positive view in relation to the parenting of the mother. She had been a notifier on at least one occasion in the past to the Department of Communities about concerns with regard to the mother’s parenting of the child, and I must say that on occasion it would seem that there was a degree of exaggeration or hyperbole included in the notifications that she had given about the behaviours of the child.
I say that because, of course, when she was asked in cross-examination about concerns that she might have had for [X], for example, in or about October of 2009, she acknowledged that [X] had had a rash on her face for a number of weeks, she was concerned about issues with regard to her vocabulary and she was also concerned about the child’s gait and her capacity to walk up steps and made passing comments about the child apparently not chewing her food properly or responding to calls made to her, when her name was called.
However, when the Department of Communities file was noted, there were comments of a far more significant or serious nature in relation to issues with regard not only to [X] but also to her sister, a child of a prior relationship of the mother’s, [Y], to the effect that the child was uncoordinated, that she was thin, gaunt, her hair was unbrushed, and that in [Y]’s case basic skills, including a capacity to eat with cutlery, were absent, and that the child struggled to follow instructions.
Similar concerns were noted in relation to [X] with regard to the child having what appeared to be a vacant stare and also concerns were expressed with regard to bruising to the child. A comment was made, and it was reiterated a number of times during the proceedings, that the notifier, and it appears acknowledged that it was Ms W, had noted that the neglect that the child suffered from was “covert, subtle and insidious”. Quite simply, Ms W had little of a positive nature to say about the mother, certainly at that time.
It is, of course, a not uncommon situation that arises in relation to proceedings before courts dealing with Family Law matters where there is, to at least some degree, an element of overreaction to any issue of concern, and certainly an element of exaggeration when it comes to describing what matters might or might not be of concern to a notifier, particularly a notifier to the Department of Communities.
It was clear that the grandmother had concerns, though I must say that the extent and the emphasis that was placed upon many of the issues that were notified to the Department of Communities in or about October of 2009 appear certainly to be issues which were exaggerations over and above what may have properly been the subject of concerns held by the paternal grandmother, or in fact the father, at the time of the notifications.
Notwithstanding those particular issues, however, and they did arise again, for example, following what might be called the “Teddy Bear” incident in September of 2010, the relationship between [X] and the paternal grandmother appears to be one of a positive nature.
Again, that is not an uncommon finding that is made in relation to issues with regard to the breakdown of a relationship. The interaction between a child, the subject of proceedings and the parents and other significant family members is generally perceived by the person experiencing time with the child to be very positive and to have no real difficulties, whilst an outside observer, particularly from the other side of the family, for example, there are far less positive responses or outlooks and more an impression that there are concerns in relation to interaction.
The “Teddy Bear” incident was a good example of that. The father’s evidence, which apparently was communicated to the grandmother, was that he had collected [X] from the mother, had presented her with a teddy bear, and that, whilst waiting for a train at the station, he noted, having moved away from the child and then returned, that [X] had put the arm of the teddy bear into her vagina. The father’s evidence was that the arm was about a half inch across and that it had been inserted into her vagina for a small but, no doubt, significant length. The grandmother had seen, perhaps in light of the concerns expressed by the father, issues there, and she had explored them further by inquiry of other qualified persons, including social workers, as to what stance should be taken in relation to this matter.
Interestingly, of course, the father said that he was not, as he recalled it, the notifier in relation to that particular notification to the Department of Communities, but it was also the case that the paternal grandmother indicated that she was not the notifier. It would appear, of course, that certainly one or other was the notifier, but, to be frank in relation to the matter, it seems to me that it is of little consequence whether it was the father or the paternal grandmother because both were acting in conjunction, upon the observations that the father had said that he had made in relation to the behaviour of the child.
In any event, there were issues of concern, and they were, I think, significantly exaggerated. In that regard, for example, the notification that was given was specifically to the effect that the behaviour was far beyond what was perhaps normal exploration by a child in relation to their body and to issues of sexuality. Whether or not that was the case is, again, a matter which will need to be more fully considered a little later in these reasons. But it is interesting that the position taken by the father’s side of the family, he and his mother, as opposed to the mother’s side of the family, was so diametrically opposed.
Tragically, of course, there was no communication or discussion between the father and the mother as to what he had observed, but there was a very divergent view taken by each in relation to the matter, the father and his side of the family being of the view that there were real concerns that it was outside the scope of normal sexual exploration, whilst, from the mother’s perspective, it was simply a case of a lie, and that the incident had never occurred. Flowing from that, there are difficulties that arise in relation to that position being taken because there must be proper parental observation and, at the very least, discussion in relation to such issues, whilst here the two totally divergent perspectives meant that there was little capacity, if any, for the parents to communicate and to discuss with each other what might or might not actually be happening.
A similar situation to the “teddy bear” incident arose a few months later when, in January of 2011, it was noted by the paternal grandmother that the child had inserted her fingers into her vagina whilst bathing, and had then indicated to the grandmother, holding the fingers up to the grandmother’s face, that she should “smell this:. Again, it was behaviour, from the grandmother and no doubt the father’s perspective, which gave rise to concerns as to it being far more than normal sexual exploration, but, from the mother’s perspective, the position was to say that it had never occurred and that it was, in fact, a fabrication concocted by the father and the paternal grandmother for the purposes of denigrating the mother’s parenting and care for the child.
I am inclined to the view that certainly something on each of these occasions had occurred, though the reaction of the paternal grandmother and the father to what had occurred and to its implications were, I think exaggerated far beyond what might or might not have been the actual import of such activities.
The real concern was that there were notifications given without the opportunity for discussion between the mother and the father, and that has heightened the issue of conflict between the mother and father to the extent, where there is now a real lack of trust or belief on the part of either the mother or the father.
I thought generally that the paternal grandmother was a genuinely decent, caring and compassionate grandmother. There were certainly, however, some elements of concern with regard to those notifications and behaviours on the part of the grandmother, to which I have referred previously, and there was, of course, a rather unpleasant exchange between the paternal grandmother and the mother on an occasion when the family was together and steps were being taken to make arrangements for rubbish and other items to be removed from the house. The father made a request of the mother that a garden screen remain at the property for a longer period of time and there was an altercation which culminated in the grandmother abusing the mother.
It was interesting, however, that when questioned in relation to that particular exchange between the grandmother and the mother that the grandmother did not seek to avoid the serious nature of the exchange and the rather unpleasant terms that were used in the exchange. Rather, the grandmother acknowledged that the words had been spoken, that they were most unpleasant words and, I thought, to her credit, it was acknowledged by the grandmother that she very much regretted the use of the term, directed toward the mother.
The fact is, unfortunately, that that, and no doubt other small issues, have led to a gradual development of the hurt in the relationship between the mother and the paternal grandmother, and that that has jeopardised the future opportunities and benefits for [X] in having a relationship with someone as important to her as the paternal grandmother.
As indicated, I consider that Ms W has, on occasions, overstepped the mark. She was perhaps being overly protective of her son’s position, and that perhaps is explained by the fact that the father has, in the past, had a number of issues with regard to his mental health, as well as alcohol and illicit substance abuse, which would have led to the most horrendous concerns on the part of a caring, loving and supportive parent, not the least in the situation of the paternal grandmother here, who had some significant degree of medical expertise and must have been most distressed at what those substance-abuse problems were doing to the father, particularly when, of course, it was afterwards noted that the father was suffering from a mental health issue, and that would have been significantly and seriously exacerbated by the drug and alcohol use and abuse.
Additionally, of course, the grandmother had her own demons, and it was noted in cross-examination, for example, that she has suffered from depression and is currently on medication herself, and has been a sufferer for a period in excess of 40 years, the paternal grandmother noting that the first episode that was experienced by her was when she was about 18 years of age. The grandmother, however, dealt with that particular issue in relation to her own health and wellbeing I thought in a most appropriate manner.
She did not seek to avoid the fact that she had been unwell, but that she was properly medicated at this time, and it seems to me that whilst she could, perhaps understandably, have taken a degree of offence at the line of questioning, no doubt directed at the instruction of the mother in relation to this matter, she dealt with the issue in an appropriate and proper way.
Overall, I gained the impression that the paternal grandmother had a positive and beneficial relationship with her granddaughter, as she noted she had with other of her grandchildren.
Of course, I note that she has been quick, on occasion, to find fault with the parenting of the mother and that that no doubt has led to a deterioration in the relationship between the two adults. However, I do not think that there was, to any extent, if at all, a degree of malice in relation to many of the actions that were taken, but perhaps simply a lack of appreciation of the possible consequences of her actions in regard to notifications being given, and that there appears now, with the intervention of a paediatrician and other experts, a greater appreciation on the part of the paternal grandmother and, I think the father, of the qualities of the relationship between the child and the mother, and that there is little further likelihood of unwarranted notifications being given in relation to the mother and the child, or behaviours on behalf of the child.
Ms W, I thought, was an impressive witness and one who could be relied upon in relation to ensuring that the welfare and best interests of the child were to the fore, and one who would act protectively, even in situations where there may have been a conflict between the attitude of the father and the paternal grandmother to the parenting of the children.
Suffice it to say that my impression of these two significant women in the father’s life was that they provided a backstop or a support in relation to his relationship with his daughter and his parenting of [X] which would ensure that there was a suitable and stable environment provided for the child.
Insofar as the mother’s evidence in relation to this matter was concerned, I note also that there were affidavits by Ms H, the director of the [M] Child Care Centre, as well as by Mr L, the de facto partner of the mother in these proceedings.
Ms H was not required for cross-examination. She made comments, however, in her professional capacity about her observations of [X] since [X] had been attending the [M] Child Care Centre, which commenced on or about 13 September 2010. Ms H noted, and it was unchallenged, and the child was happy, outgoing and confident, and that she had observed the child’s developmental level to match that of children of a similar age group.
Additionally, she attached to her affidavit various records that the [M] Child Care Centre kept in relation to children attending there, and there were notations to the effect that [X]’s development was progressing well, that the child was beginning to draw recognisable objects, and that there was proper progress being made in relation to the child’s developmental levels in respect of, it would appear, speech and social interaction.
I accept the evidence of Ms H in relation to this matter and, in any event, would note that the observations of her and others working within the confines of the [M] Child Care Centre, all were observations similar to those which were noted by the child’s paediatrician at the time that a report was prepared, in relation to such issues.
Mr L gave evidence in relation to this matter. Mr L, in his affidavit, spoke of his relationship with [X], and noted that they had a caring relationship, and that he treated [X] like he would his own daughter. He noted that he spent time with the child, and that his observations were of a happy child, affectionate towards her mother, and affectionate towards her sister [Y] and himself. Mr L also noted that he was respectful of the father’s role as the father in relation to these proceedings, and in that regard, for example, indicated that he had taken, as best he could, steps to ensure that [X] did not called him “daddy”, though it slipped out on occasions, but rather used other terms, such as [nicknames omitted] or “Daddy [first name omitted]”.

I have no doubt that Mr L would be true to his word there, and that, at least in that respect, for example, he acknowledged the distinction to properly be drawn between him and the father, insofar as the interactions with [X] are concerned.
However, there were some matters that troubled me in relation to the evidence of Mr L. In particular, he commented in paragraph 12 of his affidavit filed 23 August 2011 as follows:
I am concerned for [X]’s safety when she is in the Father’s care, in the event he drinks alcohol or takes illicit drugs.
He then goes on:
I am concerned that the Father doesn’t provide a stable environment for [X].
And, finally:
I am concerned by the amount of time that Ms W (“the Paternal Grandmother”) is seeking that [X] spends away from her Mother, her sister and me, in addition to time spent with Mr Webb.
When cross-examined, however, he noted that his impressions in almost every respect, apart from a passing and almost inconsequential meeting in 2009, was arising entirely from what he had been told or had been communicated to him by the mother. Whilst no doubt he is supportive of the mother and, of course, believes her when she sets out the various concerns in relation to the child, that is a very different thing to having the concerns that he says he has with regard to the father’s alcohol or illicit drug consumption, and certainly appears quite unjustified when there are statements made with respect to the father not providing a stable environment for [X].
Interestingly, and I will obviously comment upon it again, there was a real distinction between the support persons of the father as opposed to the support persons of the mother when it came to recognising the qualities of the other parent. As I noted previously, the paternal grandmother was able to speak at some length about what she saw as positive qualities with regard to the mother’s capacity in relation to the parenting and support of [X].
However, Mr L, when asked what he had heard of the father’s good personal qualities, indicated that he knew that the father loved [X], but otherwise, he didn’t know the father. It was telling in two respects, because it was clear that the only impressions that Mr L had in relation to the father were those that had been transmitted to him by the mother, and there was clearly nothing of a positive nature in relation to the father, Mr L, in fact, acknowledging at the end of his cross-examination that he would have put in positives about the father in his affidavit if he had been told them, but clearly he hadn’t been told them, as there were none there.
But it was also noteworthy that there was a lack of appreciation, I thought, of the very great significance of the father in the child’s life, and of the importance, not only, of course, to the father, but much more significantly to [X], in having that positive relationship between she and her father fostered and developed.
I thought Mr L was an honest witness. I thought, however, that his honesty, in fact, emphasised the difficulties that were apparent in relation to the interactions between the mother and the father and its impacts upon the relationship with the child.
Before turning to the evidence of the father and the mother in relation to this matter, it is important that I should also comment upon the matters that were contained within the report of Mr S, dated 3 March 2011, which became an exhibit to these proceedings, and, of course, also the evidence of Dr L in relation to this matter.
In that respect, the report of Mr S was not challenged, and in fact, Mr S was not required for cross-examination. However, I and, no doubt, the parties were assisted by the report provided by Mr S. In passing, for example, she commented about the contented play between [X] and [Y] during the time of interviews and observations, but also noted that the relationship between the two sisters was, perhaps, normal, in that there were occasions where they were annoyed with each other, dismissive of each other, and generally reflected what one would expect would be the relationship between two properly aligned and agreeable young children.
At paragraph 67 under the heading Evaluation, Mr S said the following:
Observations were consistent with bonds between [X] and both of her parents, her sister, paternal grandmother and mother’s partner. However it was clear that it was her mother that she used as a secure base from which to explore and a safe haven to which she could return. While she was clearly confident and relaxed with her father and sought time with him, it was her mother that she consistently sought out when feeling uncertain about new environments. Ms Aiken was able to successfully encourage and reassure [X] and these things would not usually be seen if a child had received neglectful or inconsistent responsiveness and care by that parent.
Quite clearly, the relationship between [X] and her mother is the primary bond that the child has. It is understandable and appropriate that that should be the case, and it is appropriate, as indicated in the father’s material, that he does not seek to interfere with that primary bond, but rather to hopefully have the opportunity to reinforce and develop the bond between he and the child without detriment to that primary bond, so as to ensure that the child’s best interests were able to be met.
That was emphasised, I thought, by Mr S at paragraph 69, where she made the following comment:
Although Mr Webb did not appear to be [X]’s primary attachment figure, observations did suggest that he was a significant attachment figure. He does have a history of poly substance use and mental health issues that have resulted in anti-social and self-harming behaviour and required a number of hospitalisations. However the information available suggested he had managed to get these issues under control over the past few years and had been stable for at least 18 months.
She went on at paragraph 70 to note:
Mr Webb’s mental health condition and susceptibility to substance abuse remain risk factors, particularly with regard to his ability to successfully navigate through life stressors. However the information available suggested he was currently able to be consistent and emotionally responsive parent to [X] who can provide her with the boundaries necessary to guide her behaviour and promote her social development and emotional security.
When commenting about those issues, Mr S, at paragraph 72, noted:
Research is inconclusive about the impact of substantial time in non-parental care (including comparisons of centre and home-based child care as well as care by relatives). It is suggested that child outcomes actually have a greater association with the quality of child care, carer to child ratios, and parent and family factors than with the number of hours spent in non-parental care.
It is important that this be noted in relation to this matter because there were certainly issues in relation to the father’s wish to have more time with the child, which would lead to less time in day care, and the contention on the part of the father that that would be of greater benefit to the child than the benefits of day care, and the position taken by the mother with regard to it having become a settled and stable arrangement in relation to the child, and that a change in that settled and stable routine would be detrimental to the child. I shall come again to that issue a little later in these reasons.
In particular, Mr S noted in commenting upon that issue that:
[X] has been attending child care five days a week for a few years and in 12 months time will be at school. In view of this it is unlikely that a change in child care arrangements at this stage will have a significant impact. Where [X] attends school and her parents’ work commitments will affect the amount of time she is required to spend in non-parental care. Her paternal grandmother has indicated a willingness to care for [X] a couple of days per week so if the parents prefer that [X] spends less time in centre-based care, this could be an avenue to pursue. As the parents’ and children’s commitments will change over time, this is an area where the parents and extended family need to work together to agree on and provide care arrangements outside of school hours.
Unfortunately, it was perhaps a forlorn hope on the part of Mr S that the parents and, of course, the paternal grandmother would be able to work on such issues, because there is little agreement, and in fact, it appears clear from the material filed by the mother, as opposed to the material filed particularly by the maternal grandmother, that there would not be agreement in relation to additional time being spent by the paternal grandmother with the child, over and above what might be able to be envisaged as agreed between the paternal grandmother and the father.
When talking about the primary care attachments in relation to this matter, Mr S noted at paragraph 75 the following:
A change in primary care at this time would require considerable adjustment for [X]: changing parenting arrangements across the transition period; greater periods of separation from her mother and sister; new child care arrangements; and another new home when her father moves back to [suburb omitted]. She will also have to adjust to quite considerable changes to her daytime routine when starting school next year. In addition, Mr Webb has been in his current relationship for a relatively short period of time and the home the couple live in belongs to his partner’s mother. Consequently his living arrangements over the coming year can not offer the stability to [X] that Ms Aiken’s can.
Quite clearly, that held some relevance in relation to the recommendations of Mr S because in her final paragraph under the heading Evaluation, she said at paragraph 77:
It does not seem that a change in primary care or an equal/shared care arrangement would be in [X]’s best interests at this time in view of her primary attachment to her mother and the criticality of stability and consistency for a child who seems to be exhibiting some developmentally inappropriate behaviour. It is important that [X] experiences consistency and regularity in her time with each parent and ideally a child of her age would spend some time with a non-resident parent each week. Communication and information sharing about [X] needs to improve between Ms Aiken and Mr Webb in an effort to achieve greater parity in [X]’s routines and boundaries. A paediatric assessment may assist in identifying and addressing the underlying causes of the toileting and sexualised behaviour issues.
That recommendation with regard to a preparation of a paediatric assessment occurred, and it appears to have been quite significant in relation to this matter because the paediatric assessment assisted, specifically with Dr S on 23 May 2011, noting that:
In essence, from my direct observational assessment across a range of developmental skills, I did not identify any specific delays that may potentially disadvantage her, as she progresses into the formal education system next year. I have reassured both parents and have discussed some suggestions on ways that they may be able to assist [X]’s future development.
Quite clearly, that paediatric assessment which was suggested by Mr S was designed to put the parents and, of course, in addition, the paternal grandmother’s mind at ease, and I accept that that appears to have, at least to some degree, had that outcome in relation to this matter.
I was particularly assisted by the report of Mr S in relation to this matter, and note the strong recommendations put forward by her with regard to the child remaining in the mother’s primary care, but that [X] have regular and consistent time and communication with her father, and specifically that she spends time with him each week, in addition to phone communications which the parents deem appropriate.
Additionally, it is noteworthy that Mr S, notwithstanding the difficulties in communication between the parents, recommended that joint parental responsibility for significant decisions about [X], such as child care and schooling arrangements, should continue. It is noteworthy that in that respect, however, there has been some areas where agreement has been able to be reached, but the issue of the school to be attended by the child has been a particularly divisive issue, and in fact, was a matter that was the subject of quite significant evidence and submission in relation to these proceedings.
As I indicated, I also had the opportunity to hear evidence from Dr L, as well as to peruse his report of 13 December 2010, which is annexed to his affidavit of 3 February 2011. Dr L noted in the report on page 2 the following:
I confirm that I have been treating this man since 02 May 2007. The diagnosis of the medical condition being treated is a MOOD DISORDER. Using the DSMIV terminology this condition is a BIPOLAR DISORDER.
He then goes on, having commented about the father having had periods of depression and, at times, crisis, in particular when there is issues of stress from relationship breakdown, alcohol or drug abuse, but that:
He has responded well to treatment. A period of unemployment posed severe financial difficulties for him in 2009. He has found a new job which he enjoys.
And finally:
At last review on 01 October 2010 his mood was normal. This man does not have a psychotic illness. There is no clinical concern of alcohol excess. He denied using CANNABIS. He is compliant on medication which must continue indefinitely.
Dr L noted in evidence-in-chief at the commencement of his evidence in relation to this matter that there was an update, and that on

16 August 2011 he had re-examined the father at a routine review. Dr L noted that the father continued to display a stable mental state, and that there was no evidence of psychiatric disorder. He noted that the father was in a happy state, and that he had prescribed further medication, and had noted that a further visit would be appropriate in about six months’ time.
Quite simply, Dr L noted at the conclusion of the evidence, and of course it should be noted that it was evidence sought from the father’s legal representatives, that the father had a clean bill of health, though it was a clean bill of health assessed from a 20 minute evaluation or a, “snapshot in time”.
In cross-examination, Dr L, I thought, generally remained positive about the father’s circumstances and his capacities in relation to the parenting of [X] and the benefits to [X] of a relation to her interaction with the father. Dr L however expressed some doubts and, I think, concerns about what appeared to have been a less than excellent behaviour by the father in relation to restraints upon his consumption of alcohol whilst [X] was in his care.
In particular, when asked what his reaction would be to a situation where the father had been ordered not to drink alcohol and to remain sober, and then had, on at least two occasions, subsequent to the making of the orders on 14 October 2010, consumed alcohol, he noted that that would be a concern. Dr L indicated that, because if there were a court order, as there was, then he would expect that a parent would comply with the order, and that it raised at least to some extent, a doubt about the accuracy of all the other information and particulars that had been provided.
Whilst I accept that Dr L answered that question in an appropriate way, I must say that I thought that there was, perhaps, an element of misunderstanding on the part of Dr L, in that certainly, whilst the father had not complied fully with the orders in relation to the non-consumption of alcohol, there appeared to be no evidence whatsoever that he had consumed alcohol to excess, and that the best evidence appeared to be a celebratory drink on New Years Eve and a glass of beer at an RSL club on an occasion when inquiries were being made about wedding arrangements.
Whilst there appeared also to be indications in the mother’s material that the child had made certain comments about seeing and, in fact, having the opportunity to consume alcohol whilst in the care of the father, I note that the father’s evidence in relation to that matter was that there was a denial in respect of the use or consumption of alcohol in any respect with regard to the child being present and observing the consumption, and I am more inclined to the view that, whilst the father did not comply exactly with the terms of the order, that there was in no way a suggestion of excessive or uncontrolled use and abuse of alcohol.
I was generally impressed with the assessment of Dr L in relation to this matter and noted, for example, that in answer to certain questions directed by counsel for the mother, the evidence of Dr L was that he had seen the father 14 times since first seeing him in 2007 and that his opinion was that when the father was in what might be described as a high state in his mood, that it was sufficient to show the indicators of a bipolar disorder but that in the whole of the circumstances he, being Dr L, was less concerned about more severe mood swings because in the last few years the father had been so stable.
I was most impressed with Dr L's evidence in relation to this matter. I gained the distinct impression that he had most appropriately turned his mind to the father's state of health and was impressed with the stability that had been shown by the father over a quite considerable period of time, the father's continued appropriate use of medication that was prescribed for him and that he had dealt, no doubt, with the stressors involved in the court proceedings as well as changes of accommodation, jobs and periods of unemployment in a most appropriate and sensible manner. I was much assisted by the evidence of Dr L in relation to this matter.
I turn now, obviously, to the evidence of the parties themselves. The father is the applicant in these proceedings. I thought he was a most impressive witness. He had had many demons in his life and he acknowledged that there had been alcohol and drug use and abuse.
It appears clear that he had what could only be described as a troubled childhood and that from perhaps 13 years of age he had commenced the use of illicit substances and that use had escalated. It appears also to be the case that the father has shown in previous situations, times where he has acted inappropriately. He has displayed suicidal ideations, he has self-harmed and he has acted in a manner which has brought him to the attention of police or other authorities.
It is also clear, however, that he has sought out help in relation to these various issues and in particular, since apparently having a proper diagnosis attended to in relation to the issue of bipolar disorder, has been able, to a very significant degree, to turn his life around, to form a stable relationship with Ms E and one that appears, at least on the face of it, to be progressing toward marriage or at least a settled long-term interaction between the two.
It appears clear also that he has, since having a diagnosis and treatment in relation to bipolar disorder, been able to a very significant degree, if not entirely, to exclude alcohol abuse from his life as well as illicit substance use. Additionally, he has been able to find employment and as noted in the evidence before the court now, he has been employed by his current employer for a period of about five months and appears both settled and stable in that arrangement.
The father has, quite clearly, moved forward from those very distressing times that existed for many years and of course must have existed during the relationship with the mother. No doubt his behaviours on many occasions have been troubling in the extreme for the mother and have led to the very many doubts and hurts that she still feels in respect of interaction with the father.

Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.” That situation does not arise here.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Here the mother says that there should not be equal shared parental responsibility and having originally indicated that there should perhaps be shared parental responsibility, now suggests that there should be sole parental responsibility vesting in her. She says that that is because there needs to be a person to make the decision, but unfortunately I gained the impression that, perhaps exclusive of this issue of education and the school that the child is currently to attend, there is much more an element of determination on the part of the mother that she should have the final say, or if you like, “the whip hand”, in relation to decisions to be made with regard to the child, and that that was what would be appropriate in relation to the child and the child’s parenting.
There was, if you like, and it was emphasised by counsel for the father, an unremitting negative on the part of the mother when it came to any issues relating to the father and his capacities to care for the child. It gave me grave concerns in relation to the matter and whilst there is no doubt an issue of concern in respect of the future school for the child, apart from that particular aspect of the matter, I gained the impression that these parents could and should work together because that is what would be beneficial to the child, and it clearly could and should be reflected in the orders that were to be made.
Issues of parental responsibility and in particular equal shared parental responsibility can be rebutted in circumstances where the parties can’t communicate, or of course in circumstances where domestic violence, or concern as to the wellbeing of the child or one of the child’s parents arises.
However, here there is little if anything that gives rise to concerns in respect of issues of domestic violence or psychological harm to the child, other than perhaps what might arise from the behaviours from the mother in failing, as I would see it, to properly foster the relationship with the father. Other than in relation to the issue of schooling, I am of the view that it is appropriate that there should be equal shared parental responsibility.
It is not a presumption that could properly be rebutted, and in my assessment in fact it would be extremely beneficial to this child for there to be equal shared parental responsibility because it would show [X] that her parents are able to put to one side the concerns that they have in relation to their interaction with each other and to work toward ensuring that her best interests are met.
In any event, both of the parents indicated that they were hopeful of ensuring that there were alternatives to further litigation and that the parents would utilise the services of family relationship centres and the like to attempt to reach a mediated settlement. If that cannot occur, then it may be necessary to review the situation in respect of this matter and whilst I would not think that under any circumstances that would be necessary, it may need to be further considered, however in my view equal shared parental responsibility is appropriate at this time.
In that respect it is necessary then to follow the legislative pathway to consider those matters that are set out in section 65DAA and to ensure that there are issues that are properly dealt with in relation to the arrangements. The Act provides that there must be consideration of equal time or substantial and significant time, and sets out a definition of what those matters might properly be. Section 65DAA(1) to (5) is in these terms:
Equal time
(1)If a parenting order provides (or is to provide that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interest of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are or particular significant to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In this instance I am not of the view that equal time is appropriate. It is not something that is suggested on the part of the report writer and in fact it is not now pushed on the part of the father, though previously there was certainly a suggestion on his part that that would be an appropriate course to follow in relation to the matter. What he does however seek is substantial and significant time, and sets out in his proposed orders how that might be able to occur.
The mother suggests that there should be weekends and limited opportunities for time during school holidays, but of course that does not accord with the definition of what constitutes substantial and significant time as set out in section 65DAA (3). There is not the opportunity appropriately afforded to provide for arrangements in relation to the father’s involvement in the child’s life. That’s particularly more so the case, if there were restrictions on midweek overnight time, though the mother does acknowledge that there might be the opportunity to spend time with the child from after school or day care until 7.30 pm each week, but that, again, does not necessarily afford the father the opportunity to be fully and completely involved in the child’s life, which is envisaged by substantial and significant care.
That must of course be balanced against the disruption that would be caused if, as suggested by the father, there was overnight time spent by the child with him, particularly once school has commenced, and there would be significant travel required, no matter how that might be put into effect. If the father’s suggestion with regard to the child attending [S] school were to occur, then there would be an enormous amount of travel unnecessarily required by the mother with the child, to attend at the school. If the mother’s position were taken insofar as school was concerned, then for [X] to spend a mid-week overnight period with the father would similarly have a destabilising effect, in that there would be significant travel at the end of a school day and at the commencement of the next school day, particularly as of 2012, when [X] is to commence preparatory classes.
It is not, in my view, appropriate that that should occur, but perhaps some other alternative in relation to opportunities for the father to spend time with the child which provide for greater block periods would be appropriate and, of course, I am mindful of the fact that I am not bound in any way by the proposals put simply by the father or the mother, but can and should make orders which, in my assessment, are in the best interests of the children. I shall come to that particular aspect of the matter a little later in these reasons.
In any event, substantial and significant time can and should be facilitated. Equal time is not sought and, in any event, in light of the primary attachments of the child to the mother, I would not think that they were child-focused or appropriate.
In this regard, I note, the considerations of ‘reasonable practicality’ as defined in section 65DAA(5). In respect of each consideration and particularly that relating to the capacity to implement such an arrangements, I am satisfied that substantial and significant time can be facilitated.
To determine, then, what might be the most appropriate arrangements in relation to time to be spent with the father, I must consider those matters which are set out in Section 60B, the objects and principles relating to the determination of matters with regard to the parenting of children and, of course, the considerations set out in Section 60CC, subsections (2) and (3), which are, to all intents and purposes, the reflection of the objects as set out in Section 60B. Those sections are in these terms:
60B
(1)[Object of Part] The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)[Principles underlying object] The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)[Right of Aboriginal child or Torres Strait Islander child to enjoy their culture] For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Section 60CC(2) and (3) are in these terms:
Primary considerations
(2)The primary considerations 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.
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parent son a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child;
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact of any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
This child has a meaningful relationship with both parents. It is a different relationship and, no doubt, a stronger relationship with the mother, but there is nothing that would suggest that there is any detriment to the child in the relationship that she has with the father, and, more particularly, there is nothing to suggest that she would not benefit enormously from a significant development and growth of that quality relationship with her father.
When one is mindful of the primary considerations set out in Section 60CC(2)(a) of the child’s right to a meaningful relationship with both parents, and in this case, of course, particularly the father, there needs to be consideration of how that can be best fostered and developed.
I am not of the view that section 60CC(2)(b) holds great weight in relation to this matter, certainly from a perspective of the father’s time with the child, although I must be frank and say that I am troubled as to the child’s psychological wellbeing when there is a very significant stance taken on the part of the mother, that there is little of a positive nature in the father, and that there is a genuine risk or fear for the wellbeing of the child, if the child were to spend any significant periods of time with the father.
There is no basis upon which such a consideration could be given to concerns in relation to the father, and it is therefore, of course, even more troubling that the mother should so firmly hold a view to that effect. And, again, it is a matter which needs to be dealt with in relation to this matter, but certainly it does not affect the benefits to the child of a meaningful relationship with both parents.
I do not intend to canvass at great length those matters which are set out in the additional considerations noted in Section 60CC(3). Quite clearly, the child has a good and positive relationship with both parents, and an important relationship with other persons significant in her life, including, of course, her paternal grandmother, as well as her sister [Y] and her relationship with Mr L, and one which no doubt will develop if the relationship between the father and Ms E is to continue, with Ms E. They are all positive, and they are all beneficial to the child.
The matter that does trouble me very much in relation to these proceedings are the issues that arise pursuant to the provisions of Section 60CC(3)(c) relating to:
…the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

The fact is, and one would hope that it is clear from the very many comments already made by me in relation to this matter, that the mother does not, I think, genuinely hold a determination to foster and develop the relationship between the father and the child and, in that regard, there must be, therefore, in place orders which would ensure that that relationship is fostered and developed. The mother has obviously set out to find fault with the father. Incredibly, it was the case that she even found fault with the father at Christmas time in 2010 when, having [X] in his care, he determined that she was distressed and therefore gave an opportunity for the mother to spend some additional time with the child, during the time that he was to spend with the child, and yet she could not see that this showed, very positively, the father’s keen interest in the child’s welfare, wellbeing and safety.
In my assessment, this little girl must have significant opportunities for time to be spent with her father to enable him to be involved in all aspects of her life, but most significantly to enable that important meaningful relationship to develop which I am concerned would not be as fully fostered or encouraged as might properly be the case, if there were great limitations, as the mother seems to suggest, in relation to time being spent by the father with the child.
Both parents are intelligent, capable people. They can meet the educational needs of the child. They can meet the responsibilities of parenting of the child and, in the father’s case, he has the additional assistance and support of both Ms E and the paternal grandmother. They are able to provide the basics in relation to housing, accommodation, clothing, food and all of those other matters that are important in relation to the parenting of a child.
What is clear, however, is that there must be the time for the father’s relationship with the child to grow, and whilst it may not necessarily be equal time, it must be substantial and significant. In that regard, I note that Mr S suggested very clearly that there should be the opportunities for time to be spent by the child with the father each week, and the proposals that each parent put forwarded included a period of time during the school week which was either, from the father’s perspective, to include an overnight period, or, from the mother’s perspective, to include an opportunity for the father to spend time with the child, perhaps to share a meal and to spend some time together, but not overnight.
I am more inclined, however, to the view that the more appropriate course is for the father to have the opportunity to spend time with the child that commences in one week and concludes, following a weekend, in the next week, though not a period of seven days because her primary attachments are to her mother, but a period that would enable the family to have a full weekend together. It would also mean that there was the opportunity for a parent, in this case the father, to be more fully involved in the child’s education and to participate in school activities by commencing the time with the child earlier and allowing it to proceed until after the weekend, and, therefore, full involvement in the child’s life.
It would meet that criteria that was touched upon by Mr S, of ensuring that the child had the opportunity for interaction with the father each week, but a period of time that would be able to be facilitated in one block so that there was less disturbance, for example, with the child either spending a time each week with the father at his home but then being required to return from one home to the other, including the intervening period at school, but rather a commencement time at the end of one week, concluding at the beginning of another week, which means that there would be time spent with the father during each week, but that they were in block periods.
It would also, in my assessment, facilitate the child’s great comfort in spending more time with the father because, as the father suggested, there should be a sharing of the school holiday periods, but the mother’s perspective in that regard was to say that that was not appropriate, reflecting back upon what had happened at the Christmas time period 2010. It failed, as I indicated, however, to recognise that the father had, in every respect, acted appropriately in relation to arrangements with regard to the parenting of the child and ensuring that the child’s best interests and welfare were met.
I intend to make orders which are somewhat different from those proposed by each of the parents, therefore, in relation to weekends and other times. What I intend to do is to provide for the father to have a four-day period with the child. He says, and I accept, that he has particular flexibility in relation to his employment, such that arrangements can be made with regard to transportation of the child. It would also mean that there would be a greater opportunity to develop the relationship between the father and the child very quickly, so as to facilitate and ensure that there was that comfort in the relationship between [X] and her father, such that more lengthy periods of time, because it is envisaged that there would be, at some stage, more lengthy periods spent with the father, being able to occur sooner rather than later.
It needs to be also recognised that it would reinforce with [X] the benefits that flow from a relationship with her father, rather than the rather stilted nature of the interaction that she was to spend with her father and the possible consequences upon the relationship, which was to develop between the two.
I was troubled by much in relation to this matter, as is perhaps obvious. I was more troubled by the mother’s determination to, I think, exclude, to any real extent, the father in the child’s life than from any concerns that might have been expressed with regard to the father’s prior behaviours, including issues in relation to his mental health. They appear clearly to be properly monitored and the assurances and comfort that can be taken from the evidence of Dr L is obvious.
It is appropriate that there should be more time spent by the child with the father. It is appropriate that the relationship between them, which is already of significance, be fostered and developed. It may not ever become the primary attachment, and there is no detriment to the child in that regard, but there is certainly detriment to the child in not having the opportunity for that proper relationship to grow and develop.
The only other issue that needs to be addressed is that which relates to the school to be attended by the child and, in my view, it is clear that, with her primarily living in the care of her mother, as envisaged by both parents, that it is appropriate that she should attend a school nearby to where she lives. The mother emphasised the need for stability and a settled arrangement in relation to the child, and certainly in relation to her educational arrangements, limiting travelling distances at the commencement and conclusion of every school day is an appropriate arrangement.
The orders that I intend to make may mean that, for two days each fortnight, there would be more significant travel involved with school, but it, of course, would become part of the routine that the child would quickly become adjusted to and, in that regard, I note, of course, that for a significant period, until the latter part of 2010, travel was an integral part of this child’s life and there did not appear, at that stage, to be a concern expressed by the mother as to a detrimental effect upon the child. With respect, the mother cannot now seek to rely upon the travel as an issue that would preclude the father’s further opportunities for time to be spent with the child.
The orders that I intend to make in this matter therefore are more a reflection of those sought by the father in relation, particularly, to school holidays, but insofar as other arrangements with regard to time to be spent during the school term, are a block period which will enable the father to have interaction with the child at the end of one week and the commencement of the next week, such that there is that regular interaction, but which would not then lead to further disturbance to the child which would, I think, arise from a weekly additional period of time. It is appropriate that there should be arrangements made to provide time, but with less opportunity for dispute between the parties.
The orders that I intend to make in relation to this matter therefore are as stated at the beginning of this judgment.

I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 20 October 2011