Weimann & Weimann - [2021] FedCFamC2F 70

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Weimann & Weimann [2021] FedCFamC2F 70

File number(s): LNC 628 of 2018

Judgment of: JUDGE TURNBULL

Date of judgment: 23 September 2021

Catchwords: FAMILY LAW – parenting – best interests of the child – meaningful relationship – time agreed between parties except for Week 1 of a two week time-sharing routine – whether time in Week 1 should occur Thursday until Sunday or Friday until Monday – equal time – substantial and significant time – where allegations of denigration of one party to the other party through child – parental conflict – decreasing the impact of parental conflict upon child

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 60DAA

Cases cited:
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229

Blatch & Archer [1774] 98 ER 969

Jones v Dunkel [1959] HCA 8; 101 CLR 298

Lavell & Lavell [2012] FamCA 34

MRR & GR [2010] HCA 4; 240 CLR 461

Shalhoub v Buchanan [2004] NSWSC 99

Division: Division 2 Family Law

Number of paragraphs: 212

Date of hearing: 1-2 July 2021

Counsel for the Applicant: Mr G Williams

Solicitor for the Applicant: Glynn Williams Legal

Counsel for the Respondent: Ms T Freeman

Solicitor for the Respondent: Bishops

Counsel for the Independent Children's Lawyer: Ms C Gibson

Solicitor for the Independent Children's Lawyer: Charmaine Gibson
ORDERS

LNC 628 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WEIMANN

Applicant

AND:
MR WEIMANN

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

23 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.All previous Parenting Orders be discharged.
2.The Mother, Ms Weimann (‘the Mother’) and the Father, Mr Weimann (‘the Father’) have equal shared parental responsibility for the child X born in 2014 (‘the child’).
3.The child live with the Mother.
4.The child spend time and communicate with the Father as follows:
(a)In Week 1, during school term, from Thursday after school until 5:00 p.m. the following Sunday;
(b)In Week 2, during school term, from Thursday after school until the commencement of school Friday or 3:00 p.m. if a non-school day;
(c)During school holidays, the Father is permitted to extend his weekend time by adding one or two nights to the Father’s time in accordance with paragraph 4(a) above, on up to four occasions in each year, but only once in each term holiday, subject to giving the Mother at least three weeks’ notice in writing of his intention to do so;
(d)If the child is not with either the Mother or Father on the morning of his birthday, that parent shall be permitted to telephone the child at a reasonable time on that morning;
(e)On the weekend of Father’s Day, if the child is not otherwise in the Father’s care, then from 5:00 p.m. on the Saturday before Father’s Day until 5:00 p.m. on Father’s Day;
(f)For Christmas in every odd numbered year from 10:00 a.m. on 24 December until 10:00 a.m. on 27 December;
(g)For Easter during every even numbered year from 10:00 a.m. on Good Friday until 10:00 a.m. on Easter Monday; and
(h)Such further or alternate times as may be agreed between the parties in writing.

5.Notwithstanding the above Orders the child spend time with the Mother as follows:
(a)On the weekend of Mother’s Day, in the event that the child is otherwise in the Father’s care, the child shall be returned to the Mother at 5:00 p.m. on the Saturday before Mother’s Day;
(b)For Christmas in even numbered years from 10:00 a.m. on 24 December until 10:00 a.m. on 27 December;
(c)For Easter in odd numbered years from 10:00 a.m. Good Friday until 10:00 a.m. Easter Monday; and
(d)Such further times as may be agreed between the parties in writing.

6.In the event that the child spends more than 3 consecutive nights with the Father, the Mother may telephone or Facetime the child at or about 6:30 p.m. on the 3^rd night with the Father to facilitate the call to the child’s telephone by ensuring that the telephone is fully charged, with credit and available to the child.
7.Both parties shall ensure that they keep the other party informed of their current telephone numbers and email addresses.
8.Each party shall communicate with the other by way of email or the use of an agreed parenting App, other than for necessary changes to handover which shall be communicated by text message or, in the event of an emergency, by telephone call.
9.In the event that the child suffers any accident, injury or illness requiring medical attention whilst in the care of one parent, that parent shall notify the other as soon as reasonably practicable.
10.Each parent shall authorise any medical or other healthcare professional who is consulted in relation to the child to speak to both parents about the child’s medical or other health issues.
11.In the event that the child is engaged in an agreed weekend sport, or has been invited to activities such as children’s birthday parties, both parties shall ensure that the child is able to participate in those sporting and other social activities.
12.Unless otherwise agreed in writing, handovers on a school day shall take place at school.
13.Unless otherwise agreed in writing, handovers on a non-school day are to be conducted as follows:
(a)With the child being returned by the Father or his agent to the Mother’s home, with the child moving from the Father’s or his agents vehicle into the Mother’s care; and
(b)The Father is restrained from alighting from his vehicle to effect the changeover unless an emergency relating to the child requires him to leave his vehicle.

14.The Father is restrained from returning the child to the Mother in his school uniform when handovers occur on Sundays, or any other day and time at which handover occurs where it would be inappropriate for the child to be dressed in his school uniform.
15.Unless otherwise agreed in writing, at the conclusion of a period that the child has been in a parents care, that parent shall return to the other party, via the child, at handover, any clothes and/or other items originally purchased by the other party for the child.
16.The child shall be permitted to communicate with the other parent by telephone or by Facetime at any reasonable time.
17.The Father be and is hereby restrained from consuming alcohol whilst the child is in his care, or in the 12 hour period prior to the child coming into his care.
18.Both the Mother and the Father are entitled to receive copies of any school Notices and Reports and to attend any school events, including sports days and assemblies that are ordinarily attended by parents.
19.In the event that either party receives a text message, email or missed phone call from the other parent, they will provide an acknowledgement and response as soon as practicable.
20.Neither party shall denigrate the other to or in the presence or hearing of the child, nor shall either party allow any other person to do so.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Weimann & Weimann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL

These are parenting proceedings concerning X born in 2014 (‘X’). X is currently 7 years of age.
The Applicant is Ms Weimann (‘the Mother’) born in 1971. The Mother is 50 years of age and is employed as a hospitality worker.
The Respondent is Mr Weimann (‘the Father’) born in 1961. The Father is 60 years of age and is employed as a transport worker.
BACKGROUND
The parties married in suburb B, Victoria in 1996.
There are three children of the relationship:
·Y born in 1997 aged 23 years;
·Z born in 2002 aged 18 years; and
·X born in 2014 aged 7 years.
Y and Z reside in Melbourne.
The parties separated on 11 August 2018.
The Mother filed an Application for Final Orders on 25 September 2018 seeking parenting and property orders.
On 25 February 2019 the parties finalised their parenting and property proceedings by way of consent orders. These consent orders provided that the Father spend time with X each week in the following terms:
5. That during school terms in 2019, X spend time with the Husband:
a. from 3:00pm or the conclusion of kindergarten if a school day on Friday until 6.00pm on Sunday in Week 1;
b. from 3:00pm or the conclusion of kindergarten on Thursday until 6:00pm on Saturday in Week 2; and
c. from 3:00pm or the conclusion of kindergarten on Thursday until 6:00pm on Friday in Week 3.
………
19. That changeovers occur at the Shop F car park in Suburb C, City D save where changeovers occur at G kindergarten at E Road, City D.
The Father travelled to the United Kingdom in 2019, potentially to relocate on a permanent basis. He returned to Australia in 2019.
On 15 June 2020 the Mother reported to Child Safety Service, Tasmania that X sustained a ‘neck injury’ while in the Father’s care.
On 10 July 2020 the Mother filed an Initiating Application seeking that:
1.All current orders be suspended to prevent X from having unsupervised time with the Father until further order; and
2.X have such supervised time with the Father as the Court sees fit.
On 31 July 2020 Judge McGuire (as he then was) ordered that the orders of 25 February 2019 remain in force. His Honour also ordered the appointment of an Independent Children’s Lawyer.
The parties divorced in 2020.
On 28 April 2021 the Court released a Family Report. The report makes the following recommendations with respect to the Father’s school term time:
It is recommended that X spend time with his Father in Week 1 from Thursday after school unto Sunday 5pm, in Week 2 from after school Thursday until before school Friday and from 9am Sunday until 5pm Sunday whilst Ms Weimann is employed on this day.
It is recommended that changeovers occur on Sundays and all other times when school changeover is not possible, at playground H.
The matter reached a final hearing on 1 July 2021.
AGREED ORDERS
The final hearing commenced with the parties providing to me a detailed minute of consent orders (‘the Consent Orders’) as extracted at paragraph 212 of these Reasons as Exhibit 1.
The Consent Orders confirm that:
·the parties have equal shared parental responsibility for X;
·X will live with the Mother;
·X will spend each week with the Father, with the alternate week (week 2) from Thursday after school until the commencement of school on Friday, or 3pm if a non-school day; and
·that X’s time with the Father in the holidays are to be for blocks of five nights.
The parties also agreed to a number of injunctive orders.
The Consent Orders show handwritten amendments made by this Court by consent during the hearing.
During the hearing I became concerned that the Mother was wavering with her ongoing consent to the Consent Orders. As a result, when she was giving evidence, I showed her the proposed Consent Orders and asked her if she still consented to same. The Mother read the document and then confirmed her consent.
I asked the Father the same question when he gave evidence. He maintained his agreement to the Consent Orders.
I find that the Consent Orders, as proposed, are in X’s best interests and will make orders in those terms. I will consolidate with those Consent Orders the orders that I will make in relation to the Father’s time in Week 1.
ISSUE FOR DETERMINATION
The remaining issue in dispute is very narrow.
The parties agreed that the Father’s time with X during school terms would occur over two weeks. They agreed that in Week 2 the Father’s time would occur from after school on Thursday until the following Friday before school. They could not, however, agree about the Father’s time in Week 1. This was the issue to be determined at trial.
THE PARTIES’ PROPOSALS
The Father sought time in Week 1 from after school on Thursday until 5:00 p.m. the following Sunday.
The Mother sought that the Father’s time in Week 1 be from 3:00 p.m. on Friday until 9:00 a.m. the following Monday at the commencement of school.
The parties agree as to the amount of time that X spends with the Father in Week 1. They disagree as to when that time should start and finish. This point of disagreement is, therefore, the question that I must determine in these Reasons.
Both parties gave evidence and were cross-examined. The hearing lasted for a day with submissions being given the next day.
DOCUMENTS RELIED UPON
The Mother relied upon the following documents:
·Initiating Application filed 10 July 2020;
·Affidavit of Ms Weimann sworn and filed on 1 July 2021 (on the morning of the trial); and
·Exhibit M1 being a copy of Mr Weimann’s payslip.
The Father relied upon the following documents:
·Response filed 23 July 2020;
·Exhibit F1 being correspondence from G Williams, Solicitor, dated 15 June 2021; and
·Exhibit F2 being a purported letter from the Father’s employer, Company J, dated 25 June 2021.
The Father did not file any affidavit material in relation to the issue in dispute. He did, however, give viva voce evidence in response to the Mother’s affidavit sworn and filed on the morning of 1 July 2021.
The Independent Children’s Lawyer relied upon the Family Report prepared by Regulation 7 Family Consultant, Ms B, dated 28 April 2021.
THE MOTHER'S EVIDENCE
Ms Freeman and Ms Gibson, Counsel for the Father and the Independent Children’s Lawyer respectively, cross-examined the Mother. The Mother confirmed the contents of her affidavit, of which only some parts were relevant to the remaining issue.[1]
[1] Affidavit of Ms Weimann, Sworn and Filed 1 July 2021; see [2(a)], [4], [5], [7(a)-(i)], [8], [9], [10], [11], [12], [13], [21], and [22] for the most relevant parts.
The Mother maintained under cross-examination that the Father’s time in Week 1 should commence on Friday and conclude on the following Monday morning, with the Father dropping X to his school.
The Mother pointed to the conflict and poor communication that infected the parties’ relationship over the years, particularly at changeovers, in justifying her position.[2]
[2] Ibid [7], [10].
The Mother outlines two instances, both in 2020, in which she says that X witnessed conflict at changeovers.
The first allegedly occurred on Good Friday in the deserted Shop F cark park. The Father became aggressive and used abusive language.
The second occurred on 7 August 2020. The Mother tried to take a photograph of X sitting in the front of the Father’s motor vehicle, apparently on police advice. The Father became angry at her doing this.
Under cross-examination from Ms Freeman the Mother added that, although the two incidents outlined above were the most significant, there were also ‘recent issues’. There was, however, no evidence given by the Mother as to these ‘recent incidents’ in her affidavit, nor were these issues expanded upon under cross-examination.
The Mother also claims that X has witnessed the Father denigrating her just prior to changeovers. The Mother infers this claim from observing the Father bending down and talking to X just prior to sending him forward into the Mother’s care. X has allegedly told the Mother that the Father describes her as a ‘fucking dipstick’, and that the Father will not walk up to her at changeover because ‘he hates her’.[3]
[3] Ibid [7(a)].
The Mother concedes that she has not heard the Father denigrate her at these times. The Mother says that X returns to her upset and confused, and from this, concludes that the Father has said something about her to X. In response to Ms Gibson’s questions, the Mother said that X sometimes returns confused and talking about video games incessantly. Two hours later, on her account, X then opens up and becomes very angry.
The Mother believes that, in being dropped off at school on Monday mornings, X is less likely to endure such denigration. This is because the Father will not want to upset X before the school day commences.[4] The Mother trusts the school to care for X’s needs at changeover.[5] Returning him to school, instead of directly to the Mother, decreases the risk of the Father ‘messing with X’s head’.
[4] Ibid [7(d)].
[5] Ibid.
Further, the Mother complains that X is always returned to her on Sunday nights in his school uniform, and that the Father retains school essentials and protective items that she provides to X.[6] In her view, it makes better sense to return X to school on Monday morning. If X is already dressed appropriately in his school uniform the parties need not exchange X’s clothes, and X will no longer suffer the embarrassment of putting on his school uniform on a Sunday night.
[6] Ibid, [8], [7(b)].
Finally, the Mother is concerned that if the Father’s time commences on Thursdays he will not take X to soccer training, presentations, and other activities organised by the Mother on those nights. The Mother claims that the Father regularly fails to undertake this task.[7]
[7] Ibid [13].
The Mother presented emotionally in the witness box. At times she unnecessarily added to her answers instead of directly responding to questions put to her.
This, at times, made the Mother appear evasive. For example, Ms Gibson suggested to the Mother that maintaining the Week 1, Thursday to Sunday regime (as proposed by the Father), would keep in place a pattern to which X had become accustomed over the years. Ms Gibson further put that X has been spending each Thursday and Friday with the Father. It has been agreed that X will spend Thursday night with the Father in Week 2, which is consistent with the Family Consultant’s recommendation and observation.[8]
[8] Family Report, Dated 28 April 2021, [82].
The Mother did not answer Ms Gibson’s questions directly, but rather referred to issues with X’s soccer training and her concerns about wearing seat belts. This gave the impression that the Mother was unwilling to accommodate ongoing consistency and its beneficial effect upon X. In this way the Mother showed a degree of inflexible thinking.
Ms Freeman put to the Mother that, notwithstanding her concerns, she had never sought changeover at a contact centre or a police station. The Mother replied that the Father had sought use of the contact centre, and that the shop F car park can be busy but that it is safe. Again, these answers did not directly answer the question put to the Mother.
The Mother’s answers concerning alternative changeover arrangements were somewhat confusing. Counsel raised the possibility of the Father dropping X directly to her home, or of the Mother collecting X from the Father’s home. In response, the Mother first said that the Father had never raised this as an option. Then she said that she could drop X to the Father’s house if a ‘safety plan’ was in place. After this, confusingly, she said that it may be unfair for the Father to be left with the responsibility of returning X to her home. Ultimately, despite some lack of clarity in her answers, she did not think that conducting changeovers at each other’s homes would be a good outcome for X.

The Mother accepted that changeovers will have to be undertaken in person during the holidays. The Mother believes that the impact of in-person changeovers will be lessened if they occur on more limited occasions.
In justifying his proposal for changeovers on Sundays, the Father says that this will enable him to take on early shifts on Monday mornings. In his view, he would not be able to do this if he has to take X to school on Monday mornings.
The Mother was sceptical as to whether the Father truly needed to have Monday mornings available to him in this way. That scepticism has a strong foundation. These Reasons later make it clear that the Father’s evidence about his work commitments on Monday mornings was scant at best.
The Mother acknowledged that if the Father’s income improved she may be entitled to more child support. That said, she was also (with some justification) sceptical about the possibility of receiving more child support as the Father has not submitted a tax return and as such currently makes no child support payments.
I questioned the Mother as to what would happen to X if the Father had to start work early on a Monday morning. The Mother conceded that it would not in X’s best interests to be returned to the Mother before the Father’s early shift started at 6:00 a.m. She said that X could be returned to her on Sunday night in such circumstances — a curious position, given her stated concerns about the Sunday changeovers generally.
I was concerned about the Mother’s evidence in this respect. Her answer suggests that, in proposing the Monday morning school drop-off, she seeks to covertly reduce the Father’s time with X as he will have to return X on Sunday if he works on Monday morning.
That said, the Mother is sceptical about the Father having a job which requires him to start at 6:00 a.m. on Monday mornings in any event. The Father’s evidence in this respect is poor and has not helped the decision-making process.
Ultimately, the Mother maintained that her proposal was the least likely to expose X to conflict or denigration which she believes upsets him. She maintained that the Father dropping X to school on Monday morning was in X’s best interests.
As outlined above, the Mother is concerned about conflict at changeovers. Her answers under cross-examination were, however, somewhat evasive and at times contradictory. The Mother left upon me the impression that the perceived issues were not as unmanageable as she stated them to be. She appeared unwilling to accommodate, or try to accommodate, other options for the Sunday night changeovers to make them work. This resulted in her appearing inflexible in her mindset.
Lastly, I am concerned that the Mother proposes the Monday changeover, not only to avoid conflict, but also in part to stealthily reduce the Father’s time with X.
THE FATHER'S EVIDENCE
The Father did not file an affidavit but rather provided viva voce evidence in response to the Mother’s affidavit and oral evidence.
The Father responded during examination-in-chief to the Mother’s evidence as to the conflict at changeovers in 2020. He replied that changeovers were not always smooth and that at the changeover point he does not engage with the Mother. He said that he only watches X cross a road into her care. He denied saying anything derogatory to X about the Mother as X leaves his care but does tell X that he loves him and will miss him.
The Father said that he was willing to return X to the Mother’s home on Sundays. He stated that he would not alight from his car unless X was in a situation of danger.
As to the non-return of clothes, the Father agreed that this was something neither he nor the Mother did, but that he would agree to an order for the return of any clothes if required. He did not deny that he returns X to the Mother in his school uniform. The Father did not appear to acknowledge how unusual and potentially embarrassing this is for X.
Ms Freeman then led evidence about the Father’s employment. The Father said that he was casually employed as a transport worker, and that he is sent ‘run sheets’ which set out his work roster. He stated that his shifts can start anywhere from 6:00 a.m. to 9:00 a.m. and end anywhere from 3:00 p.m. to 5:00 p.m. The Father said that, while his employer affords him the flexibility to pick X up from school while in his care, he may be able to secure a full-time position if he can commit to 6:00 a.m. starts on Mondays. The Father produced a letter, purportedly from his employer (although he could not name the person who signed the letter), but the author of the letter was not called as a witness.
The Father said that if he could commit to 6:00 a.m. starts on Mondays he could increase his current income by up to $200.00 per week.
The Father said that, to avoid conflict at in-person changeovers, he was prepared to use a contact centre. The Father also said that he was prepared to return X to the Mother’s house directly without alighting from his motor vehicle, and have the Mother do the same when returning X to his house.
Lastly, the Father said that he and X had always spent time together from Thursday until Sunday and that his proposal maintained that routine. He maintained that preserving this routine would lead to the best outcome for X and that it would allow the Father to take on more work and better provide for X’s needs in financial terms.
Mr Williams, Counsel for the Mother, cross-examined the Father as did Ms Gibson.
Mr Williams asked the Father whether he was really in paid employment with his purported employer or whether he was a volunteer. The Father maintained that he was in paid employment.
The Father was then asked about ‘Exhibit F1’, purportedly a letter from his employer. The Father’s evidence about this letter was very evasive. The letter purported to show that, if the Father could start at 6:00 a.m. on Mondays, he would obtain secure and permanent employment. The Father could not, however, provide the name of the person that signed and provided that letter for him.
Mr Williams repeatedly asked the Father if he could detail his salary and his Centrelink payments, as the Father conceded that he was in receipt of both. He could not provide this detail nor could he easily state the hours that he had worked the week before.
Ultimately, Mr Williams called for a copy of the Father’s payslip from Company B. The Father was unwilling to provide it other than to his lawyer. I directed that he provide the same to Mr Williams. After a brief adjournment, a copy of that payslip was provided to all parties and marked as ‘Exhibit M1’.
The Father’s unwillingness to provide his payslip was unhelpful and self-defeating.
Cross-examination then resumed. The Father at this time verified that he worked some 60 hours per month and that he was earning $28.00 per hour.
The Father was asked to concede that he did not have an offer of secure and permanent employment on condition of him working Monday mornings from 6:00am. His evidence was, again, evasive on this point.
I am concerned as to the veracity of the Father’s evidence with respect to the offer of permanent employment.
The Father gave evasive responses about his employment and income. This may have been because he was concerned about the impact of such evidence upon his child support obligations. The Father conceded that he has not paid child support for 6 months.
The Father also confirmed that he held $8,000.00 in a savings account and $2,000.00 in a bank account for X’s benefit. This suggests that he has been earning a strong income, irrespective of the apparent possibility of permanent employment.
The Father confirmed that he had not received a Child Support Assessment as he has not filed his most recent tax return. He was not paying any child support as at the date of the trial.
The Father maintained his evidence that he had been assured permanent employment if he was available to work from 6.00 a.m. on Mondays and other days.
The Father said that he was able to negotiate flexibility with his employer to transport X from school on Thursdays and to school on Fridays. He also said that the Friday morning drop-off allowed him to interact with the school and the teachers.
With respect to the Thursday to Sunday time in Week 1, the Father said that this was a consistent pattern for X working in with the already agreed Thursday to Friday time in Week 2.
Under cross-examination the Father acknowledged the conflict, poor communication and lack of trust between himself and the Mother, particularly since 2020. This included a lack of trust as to exchanging clothes at the end of the Father’s time, resulting in X returning to the Mother’s home on Sunday in his school uniform. The Father acknowledged his role in this unsatisfactory situation and that he needs to improve in this regard. He agreed that he has enough clothes for X to wear when returning to the Mother but he does not believe the clothes will be returned to him.
The Father maintained that he is likely to obtain permanent employment if time in Week 1 is ordered in the same terms as his proposal. He says that this will provide him with stability, being his first permanent job in a long time. In the Father’s view, gaining more secure employment will benefit X in providing the Father with more income, and will benefit the Mother in relation to child support payments.
The Father was a poor witness. His evidence regarding his employment was unhelpful and self-defeating. Had he provided his payslip prior to the hearing the Mother may have been less sceptical of his evidence regarding his employment and payslip.
Exhibit F1 and the Father’s failure to call evidence from his employer
I can give little weight to the letter from the Father’s employer, ‘Exhibit F1’. The Father could not say who provided, wrote and signed the letter. He also failed to call his employer as a witness.
The Father’s failure to call his employer as a witness allows me to infer that, if his employer had given evidence at the hearing, this would not have supported the Father’s case. As stated by Lord Mansfield in Blatch & Archer [1774] 98 ER 969[9]:
‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.’
[9] Blatch v Archer (1774) 98 ER 969, 970.
On this basis, and as foreshadowed earlier in these reasons, the Mother is right to be sceptical about the Father’s apparent offer of employment.
Murphy J in Lavell & Lavell [2012] FamCA 34 explained the ‘rules’ in Blatch v Archer and the subsequent authority Jones v Dunkel [1959] HCA 8; 101 CLR 298:[10]
122. The “rule in Jones v Dunkel” relates to the potential for an adverse inference to be drawn in circumstances where evidence presented in a case raises an inference against a party and that party is in a position to give or call evidence to refute it and does not do so. But, the “rule in Jones v Dunkel” can be seen as “a particular application” of “the rule in Blatch v Archer”. (See Ho v Powell [2001] NSWCA 168 per Hodgson JA at [15], Beazley JA agreeing).
123. The latter “... applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of that failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case ...” (Ho v Powell). The principle in Blatch v Archer can be seen as wider than the “rule in Jones v Dunkel” “because it is also available against the person bearing the onus of proof where that person does not adduce evidence that he or she was plainly in a position to adduce”. (Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 per Austin J at [439].
[10] Lavell & Lavell [2012] FamCA 34, [122]-[123].
Murphy J also extracted the following statement originating from Shalhoub v Buchanan [2004] NSWSC 99, which has been repeated in subsequent authorities including in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229:[11]
‘the failure of a party who bears an onus of proof to call an available witness who could cast light on some matter in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus.’
[11] Ibid, [124]; Shalhoub v Buchanan [2004] NSWSC 99, [71] (Campbell J); Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, [440].
The Father has failed to establish that he needs Monday mornings to be available to him for the purposes of taking on early shifts commencing at 6:00 a.m. He has also failed to establish that his employer offered to him a permanent position if he could undertake those early shifts on Mondays. As such, the Father has failed to discharge his onus of proof for these aspects of his case.
Further, the current order does not have the Father spending time with X on Monday mornings. This means that the Father has been capable of undertaking early Monday morning shifts, and yet there was no evidence that he has done so. He did not produce evidence that he was working Monday mornings, or about the income lost if he had to forego these shifts. Perhaps the Father’s position is that he can work Monday mornings if and when he is afforded full-time work as per the purported letter from his employer.
Given the Father’s evasive and unsatisfactory evidence on this point I am doubtful he does have an offer of permanent employment if he can work on Monday mornings. All that his evidence leaves me with is a possibility that he may have work available to him which may require his to start at 6:00 a.m. on Monday mornings.
The Father could have given the Court a clearer more convincing picture of his position with respect to his employment. He did not do so. As previously stated this is most unsatisfactory.
THE FAMILY REPORT
The Independent Children’s Lawyer relied upon the Family Report. Ms B, the Family Consultant who prepared the report, was not required for cross-examination.
The Family Report was written in April 2021. The parties were in dispute about a wide range of matters at this time.
It is noteworthy that, at the time the Family Report was prepared, the Mother proposed Week 1 arrangements of Wednesday to Friday night. The Father’s proposal is the same as that which he brought to the hearing.
The Mother described the Father to Ms B as ‘unreliable, possessive and self-focused’.[12]
[12] Family Report, Dated 28 April 2021 (n 8), [34].
The Mother expressed to Ms B that, in her view, the current orders are impractical. As such, the Mother would like all changeovers to occur at X’s school or at playground H, which is attached to her place of employment.[13]
[13] Ibid [37].
The Father told Ms B about his ongoing difficulties in communicating with the Mother,[14] and that he would prefer to collect and return X between family homes.[15]
[14] Ibid [47].
[15] Ibid [50].
Ms B noted the poor co-parenting communication and lack of trust between the parties.[16]
[16] Ibid [53]-[54].
Ms B noted a very warm and loving relationship between X and both of his parents.[17]
[17] Ibid [73].
With respect to the Mother, Ms B reported that she impressed as a ‘connected and sensitive mother’ who was ‘warm and responsive to him’.[18]
[18] Ibid [70].
With respect to the Father, Ms B observed him to be a ‘fun loving and interactive father’, with whom X shared ‘love and happiness … that was infectious’ at the appointment.[19]
[19] Ibid [67], [64].
Ms B did note at several points in the Family Report the Father’s emotional indifference with respect to how his behaviour affects X.[20] In particular, this includes the Father’s potential relocation to the United Kingdom.[21] Ms B also noted the Father’s ‘indifferent response’ to X’s sore neck, in that it may reflect a lack of regard for X’s welfare.[22] Ms B described the Father as having ‘poor child focus’ and making ‘poor emotional choices’.[23]
[20] Ibid [62], [75], [78]-[79].
[21] Ibid [76], [81].
[22] Ibid [77].
[23] Ibid [81].
The Father’s lack of relationship with his six other children was also noted by Ms B as having ‘some bearing on what the nature of his current and future parenting with X is and will be’.[24]
[24] Ibid [80].
Ultimately, Ms B recommended that the Father’s time in Week 1 occur from Thursday night until Sunday. This, in Ms B’s view, ‘give[s] X continuity in the time he weekly spends with his father’.[25]
[25] Ibid [82].
Ms B gave a detailed and studied opinion of the family’s dynamics. I give the Family Report, and the recommendations therein, considerable weight in determining what orders I will ultimately make.
THE MOTHER’S SUBMISSIONS
Mr Williams, Counsel for the Mother, submitted that his client’s proposal meets X’s best interests because the parties have a poor relationship and do not communicate well. In the Mother’s view, it makes sense for the Father to return X to his school on Monday mornings for two main reasons. Firstly, it is convenient as a matter of practicality. Secondly, and more importantly, this option keeps X as conflict-free as possible. The exchange of clothing is another point of conflict between the parties. Adopting the Mother’s proposal allows X to be appropriately returned to school in his uniform, as opposed to being returned to the Mother in his school uniform.
Mr Williams also submitted as to the Father’s evidence in relation to his employment and the purported offer of permanency in Exhibit F1. Mr Williams argued that this evidence was uncertain and, in light of the Father failing to name the letter’s author or call his employer, unreliable. In Mr Williams’ submission, Exhibit F1 and the Father’s position concerning his employment should be regarded with a great deal of suspicion, and I should infer that any evidence from the Father’s employer would not have supported his case. I refer to my determination above with respect to the rules in Blatch & Archer and Jones v Dunkel.
Mr Williams then submitted that, even if the Father cannot secure permanency, he can clearly continue working in his current capacity as he has done consistently for some time. I also note in this regard that I asked the Father questions about a potential offer of employment from one of his friends. The Father gave evidence in response that suggested, again, that he might need to guarantee his availability in the early hours of Monday mornings.
Mr Williams’ ultimate submission was that the Sunday changeover arrangement presents too much of an opportunity for conflict. The best way to protect X from being subject to denigration of the Mother, or any other conflict between the parties, was to ensure that he is returned directly to school.
THE FATHER'S SUBMISSIONS
Ms Freeman, Counsel for the Father, submitted that her client’s proposal meets X’s best interests as it provides consistency by continuing a routine with which X is familiar. It was argued that X has not only known this arrangement for a long time, but that it kept with the pattern of Thursday to Friday time as will occur in Week 2.
It was conceded that the current arrangement has X spending time with the Father from Thursday night until Sunday morning.
Ms Freeman also submitted that the Father’s proposal is consistent with the proposed orders in the Family Report which, in Ms B’s expert opinion, are in X’s best interests.
In relation to the ongoing conflict between the parties, Ms Freeman submitted that this was most apparent in August 2020. In this submission there is no evidence of ongoing conflict since that time. Ms Freeman also submitted on this point that the Mother’s evidence, with respect to denigration, is without foundation.
Ms Freeman also submitted that it is in X’s best interests for the Father to be able to obtain permanent full-time employment for three reasons. Firstly, a secure income allows the Father to better meet X’s needs and expenses whilst in his care. Secondly, the Father being permanently employed on a full-time basis would provide positive role modelling for X. Thirdly, an increased and more certain income should afford the Father the opportunity to provide a better level of child support.
THE INDEPENDENT CHILDREN'S LAWYERS SUBMISSIONS

Ms Gibson, Counsel for the Independent Children’s Lawyer, said that she had changed her view as to the appropriate order for Week 1, a number of times during the hearing.
Ultimately Ms Gibson concluded that, in her view, the Week 1 arrangement should extend from Thursday until Sunday consistent with the Father’s proposal.
Ms Gibson submitted that the Father’s Week 1 proposal was more suitable for X as it maintained the longstanding pattern of time commencing on Thursday, a pattern which continues in Week 2.
Ms Gibson acknowledged that the potential for conflict at changeovers could be problematic for X. In addressing this point, Ms Gibson referred me to the Family Report, specifically that:
56. X aged 6 years 10 months impressed as a happy and communicative young boy. He was keen to chat and was open and relaxed, talking about both his mother and his father and his current parenting arrangements with ease.
Ms Gibson submitted, with reference to the Family Report, that X was a happy boy and that he had a loving relationship with both parents notwithstanding the purported conflict between the parties at the point of changeovers.
With respect to the potential for conflict at changeovers on Sundays, Ms Gibson noted that the Mother did not seem too concerned about changeover taking place on Sundays if the Father had to work on Monday mornings. Ms Gibson noted that this was a clear contradiction in the Mother’s position.
Ms Gibson also noted the available alternatives with the changeover on Sundays, including a contact centre or the Father’s proposal of changeover occurring at the home of the party receiving X with the other party remaining in their vehicle.
Ms Gibson acknowledged that the Father’s evidence in relation to his employment, specifically his need to work on Monday mornings, was problematic. Ms Gibson submitted that the Father must already undertake a fair amount of work for his employer, as his payslip evidences 30 hours per week. If, however, the Father could avail himself of additional work on Monday mornings and obtain permanent employment, Ms Gibson considered that this outcome would benefit X.
Ultimately, Ms Gibson’s position was that the Sunday changeover arrangements are longstanding and that X’s return to the Mother on Sundays is a routine to which he has become accustomed. Notwithstanding any purported conflict between his parents, X appears to have coped well. Further, the evidence surrounding conflict between the parties at changeovers dates back to mid-2020.
Ms Gibson, in expressing her position concerning the Sunday changeover arrangements, was concerned about X being returned to the Mother in his school uniform. As a result, the Independent Children’s Lawyer seeks an order that the Father be prevented from continuing this practice in the future.
In all of the circumstances, Ms Gibson submitted that it is in X’s best interests for the Father’s proposal to prevail in Week 1.
THE LAW
The Family Law Act 1975 (Cth) (‘the Act’) sets out in Part VII the legislative pathway that must be followed when a Court determines a parenting matter. In MRR & GR [2010] HCA 4; 240 CLR 461, the High Court of Australia described this pathway:[26]
[26] MRR & GR (2010) 240 CLR 461, [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
6 Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by "ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child". Section 60CA requires that a Court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child's best interests are listed in s 60CC.
7         Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to 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. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
8         Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"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 interests 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." (Emphasis added.)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
"(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."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9         Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the Court considers relevant", "[i]n 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".
I intend, and am bound, to follow the pathway set out in the Act and the High Court’s interpretation of that pathway in determining orders for X’s parenting arrangements.
X’S BEST INTERESTS – SECTION 60CC CONSIDERTIONS
I will determine whether the orders proposed align with X’s best interests in accordance with the considerations set out in section 60CC of the Act.
Primary considerations
The Act sets out two mandatory considerations at section 60CC(2).
I note that section 60CC(2)(b) is to be given greater weight than section 60CC(2)(a). This means that the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to him of having a meaningful relationship with both of his parents.
Section 60CC(2)(a) — Orders which assist X in forming and maintaining a meaningful relationship with both parents
Consistent with the objects of the Act there is a clear benefit for X to maintain a meaningful relationship with both of his parents.
Whatever order I make to determine the narrow issue of changeover arrangements in Week 1, X will maintain his meaningful and secure relationships with both the Mother and the Father.
The strong and loving nature of X’s relationships with his parents was observed by Ms B. Part of the Family Report including her observations is extracted below:[27]
[27] Family Report, Dated 28 April 2021 (n 8), [63]-[70].
63. When Mr Weimann entered the observation room, X squealed with delight and leapt into his father’s arms. Mr Weimann apologised for being 10 minutes late due to car parking issues.
64. X and his father spent the next 30 minutes interacting with joy and pleasure. They had a shared love and happiness together that was infectious. X and his father laughed and giggled a lot together. Mr Weimann was seen to bring himself down to the level of a six-year-old and related to X in a “man to man” manner, possibly “us against the world” manner. There was at times a conspiratorial manner in the way he spoke to X, for example, when he asked X about needing a haircut, there was an implied criticism of his mother, saying “you haven’t been yet to get a haircut?” ...” you really need a haircut” ….”when is this happening?”
65. Mr Weimann throughout the observation peppered X with questions especially about Z who had unexpectedly arrived in City D for a short holiday. He asked, “How’s Sis?” “Did you creep into bed with her?” “Is it good seeing Sis?” Mr Weimann commented on several occasions about the need for X to get a haircut, telling him he was “way past needing one”.
66. When it was time to go, X cuddled into his father and gave him a warm kiss saying, “Goodbye Dad”. X separated with ease displaying no fuss or distress and appeared to calmly wait for his mother to join him in the observation room.
67. Mr Weimann was observed to be a fun loving and interactive father. He did not impress as being overly attuned to X’s needs as exampled by his rather offhand manner in which he dealt with X’s distress over his father not collecting him over the Easter break for extra time together.
68. X greeted his mother with pleasure and there was an ease and stability in their relationship, with no sign of awkwardness or stress. They appeared companionable and comfortable with each other, chatting about the room and the games that were in it. Ms Weimann allowed X to look at various games and eventually encouraged him to play Twister which they did with much enthusiasm and joy.
69. X and his mother discussed X meeting up with a school friend after the observation session and having a play date with him at his home. This was seen to be something that X was excited about and was looking forward to.
70. Ms Weimann impressed as a connected and sensitive mother. She displayed concern regarding X’s wellbeing, and was observed to be warm and responsive to him.
If this Court adopts the Mother’s proposal there is a danger that the Father may not be able to maintain Monday time due to his stated need to commence work at 6:00 a.m. on Monday mornings. The Mother acknowledges that it is not in X’s best interests for him to be returned to her before 6:00 a.m. on Monday mornings. She indicated that, if the Father had to work on Monday morning, he could return X to her on Sunday. This outcome creates two issues. The first issue is that the Mother’s proposed solution creates the same problem she is trying to avoid, namely, the risk of conflict at a face-to-face changeover. It is, plainly, a contradiction. The second issue is that, in a Friday to Monday time-sharing arrangement, the Father returning X on Sunday reduces the amount of time that X can spend with him. If this Court accedes to the Mother’s proposal it could, ironically, lead to X being returned to her on Sundays in any event.
The Father has failed to prove his real need to work on Monday mornings. He has also failed to prove that his employer has offered him permanent full-time employment conditional upon his commitment to Monday morning shifts. On the evidence, it cannot be said that his employer needs him to work Monday mornings or that doing so is a condition of permanent employment.
Notwithstanding shortcomings in the Father’s evidence on these points, he indicated that he intends to undertake Monday morning shifts on an ad-hoc basis if they become available to him. In a Friday to Monday time-sharing arrangement it is foreseeable that, at times, the Father may have to choose between his time with X and opportunities for additional income. If the Father chooses to spend time as ordered with X he will forego an opportunity to undertake Monday morning shifts, if and when they are available to him. If the Father chooses to work on a Monday morning he will forego time with X on Sunday night and Monday morning before school.
A reduction in the Father’s time under a Friday to Monday arrangement due to work commitments is likely to upset X, given their loving relationship. Such a reduction is unlikely to jeopardise the meaningful relationship that X has already developed, and that which he will continue to develop with the Father. It would however be sad for X
Section 60CC(2)(b) — the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The Family Report details a history of conflict between the parties. The Mother alleges coercive and controlling family violence throughout the relationship.[28] The Father reported communication difficulties which often left him emotionally overwrought and distressed.[29]
[28] Ibid [21]-[22].
[29] Ibid [47].
There is a concern, as Mr Williams highlighted in his submissions, that the Father may more readily denigrate the Mother to X if changeovers happen on Sundays as opposed to at school on Monday mornings.
Denigration may occur in any event if, in line with the Mother’s suggestion, the Father returns X on Sunday night if he has to work on Monday morning at 6:00 a.m. Nevertheless, I am conscious of the Mother’s position with respect to denigration and note the conflict that occurred in August 2020.
I accept the Mother’s evidence that X has expressed to her, in words to the effect that make it clear, that the Father has denigrated her in the past. That the Father may have said such things is consistent with Ms B’s observations in the Family Report, being his emotional indifference and poor child focus. I am not, however, convinced that denigration is occurring at the point of changeover as the Mother fears. The Mother is deeply suspicious of the Father but she has not directly heard the alleged denigration at the point of changeover. X’s sometimes challenging behaviour, on his return, may have many innocent explanations. The denigrating things that X has told her about in the past, however, are likely to have emanated from the Father.
I will ultimately make a non-denigration order to protect X, to the extent possible by such an order, from experiencing denigration between the parties as a proxy.
As stated, the inconsistencies in the Mother’s proposals raises some concern. On her initial proposal the Mother is concerned that the Father will denigrate her to X unless he is returned directly to school on Monday morning. On the other hand the Mother suggests that changeover occur on Sunday if the Father has to work early on Monday morning. X may be returned to her on Sunday night in any event, even if I order a Friday to Monday arrangement. As such, the risk of denigration at Sunday night changeovers remains.
There are, however, alternatives to the shop F car park changeover point. These alternatives include the Father returning X to the Mother’s home with a prohibition on alighting from his car. This is an attractive and natural way to decrease opportunities for conflict and lessen the impact of parental conflict upon X.
The Mother did not accept this as a viable alternative, with one of the reasons being that it may be unfair to the Father. The Father is prepared to return X to his mother’s home. The Mother need not be concerned about potential unfairness.
It is important that X is not subject to physical, verbal or psychological abuse. I am satisfied in this respect that, regardless of the arrangement set down by the order, X will not be subject to an unacceptable risk of harm. The chances of X being witness to parental conflict and/or poor parent behaviour will be reduced with appropriately worded injunctions.
I pause to note my dismay that the Father returns X to the Mother in his school uniform. Under this practice X must, on Sundays, undress from his weekend clothes and put on his school uniform. This must be embarrassing for X and it leaves me concerned that the Father has not focused on his needs in this regard. It shows that the Father is more concerned with petty squabbles about returning clothes than he is with how his decisions impact X. In short, this practice is poor parenting and the Father will be injuncted from continuing it in the future.
I will make an order preventing the Father from returning X in his school uniform and requiring each party to return any clothes brought with X. This should also alleviate many of the problems the Mother identified and address the Father’s concerns that the Mother will retain the clothes he sends with X.
Additional considerations
The Act sets out additional considerations at section 60CC(3) to be taken into account to the extent that they are relevant.
Section 60CC(3)(a) — any views expressed by X and any factors ( such as his maturity or level of understanding) that the court thinks are relevant to the weight it should give to X’s views
X has not expressed whether he would prefer to return to the Mother on Sunday night or to go directly to school on Monday morning. In any event, he is too young for his views to be given any significant weight.
The Mother says that X can, on occasion, become confused and upset upon the Father returning him to her. This is what leads the Mother to believe that the Father speaks negatively about her to X just prior to return. As such, and as previously outlined, this is one of the reasons why the Mother proposes that X be returned to school on Monday mornings. In her view the Father is less likely to denigrate her if he returns X to his school instead of directly to her.
While the Mother gave no evidence that she heard the Father denigrate her at changeovers, I accept that the Father is likely to have said denigrating words about her to X in the past. This is supported by the Family Report in that Ms B notes the Father’s emotional indifference, and the at times ‘conspiratorial’ references to the Mother when speaking to X.[30] The Father denies denigrating the Mother and says that X may be upset to return to the Mother for many reasons, including that he is upset to leave the Father.
[30] Ibid [64].
I do note, however, X’s easy transition from one parent to the other as observed by Ms B. As Ms Gibson submitted, X has maintained a warm and loving relationship with both parents notwithstanding the conflict between them.
I have concerns about the remaining level of conflict and the potential for denigration and the effect on X should the risks associated with changeovers in the future eventuate. I am persuaded however, that these risks are likely to dissipate if the parents do not approach each other at the point of changeover. To achieve this X should be returned to either the Mother’s home or a contact centre.
Section 60CC(3)(b) — the nature of the relationship of X with:
(i) each of his parents; and
(ii) other persons (including any grandparent or other relative of X)
I have already explored the nature of X’s relationship with both of his parents in my summary of the Family Report.
X also ‘clearly sees his family as consisting of his siblings and his parents’.[31] The narrowness of the issue to be determined means that I do not have to pay the same regard to X’s relationships with his siblings as I have for that with his parents.
[31] Ibid [61].

At the appointment with Ms B, X spoke ‘with much affection’ for his sister Z. X also ‘described with warmth his knowledge of Y’, his brother, who is clearly ‘a fixture of [X’s] affections’. Both Z and Y live in Melbourne.
The nature of X’s relationship with Z and Y appears to be warm and loving, and though his siblings live in Melbourne, he sees them from time to time.
Section 60CC(3)(c) — the extent to which each of X’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to him; and
(ii) to spend time with him; and
(iii) to communicate with him.
This factor is not notably relevant to the issue in dispute given the extensive and weekly time agreements already undertaken by the Father.
Section 60CC(3)(ca) — the extent to which each of X’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain him
I have concern about the Father’s willingness to pay child support. The Father has not paid child support for 6 months. This is not child focused, particularly as the Father receives an income that enables him to pay a reasonable level of support.
I am concerned that the Father’s unwillingness to provide his payslip during the proceedings may have related to his concern that the information would be provided to the Child Support Agency.
At least the proceedings have allowed the Mother to obtain better particulars of the Father’s income, even though the same was reluctantly provided. This information gained may assist the Mother in receiving a proper level of financial support from the Father.
Section 60CC(3)(d) — the likely effect of any changes in X’s circumstances, including the likely effect to him from any separation from:
(i) either of his parents; or
(ii) any other child, or other person (including any grandparent or other relative of X), with whom he has been living
The routine to which X is currently accustomed is a three-week routine in which he spends time with the Father each week. For two weeks out of the three-week routine, the Father’s time commences on the Thursday and X is returned to the Mother on Saturday or Sunday.
The Consent Orders state that the Father’s time in Week 2 will commence on a Thursday and conclude on the following Friday. This arrangement has been in place since X was 5 years old.
It can be inferred that X is accustomed to the Father’s time commencing on a Thursday and concluding on a Sunday. X has not experienced the Father’s time concluding on Monday mornings with him being returned to school.
Ms B noted the importance of continuity and recommended that time in Week 1 be ordered as the Father proposes.
I agree with the submissions of Ms Gibson that it is in X’s best interests to maintain time with his father in accordance with the established pattern of time. This, in my view, is a very important consideration.
The Mother’s proposal allegedly aims to decrease parental conflict. It seemed to me during the trial, however, that the Mother was not as concerned about a return to her on Sunday night as she claimed. Further, the Mother lacked flexibility in her thinking about alternative drop-off arrangements for Sunday night in Week 1. A return to her home is an obvious alternative which is capable of regulation so as to ensure the parties do not come into contact with each other.
I also consider that continuity of the current pattern of time is in X’s best interests.
I cannot determine if maintaining Sunday night changeovers will, as a matter of certainty, afford the Father more opportunities to work on Monday mornings. I cannot accept his evidence that an offer of permanent employment depends on him doing so.
I can, however, consider the possibility that he may be offered Monday mornings shifts if he is available to take them. If he has X in his care on Monday mornings he will have to forgo such work or return X to the Mother on Sunday. If the Father can takes on extra work it will be of benefit to X.
Section 60CC(3)(e) — the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect his right to maintain personal relations and direct contact with both parents on a regular basis
The Mother’s position is that returning X directly to school is more practical for him and for the parties. In her view, her proposal would expose X to less direct and indirect conflict and it would not require the parties to exchange clothes or return X’s school uniform. These things, she says, will naturally be undertaken if X is returned directly to school.
The Father argues that the Mother’s proposal is impractical because his 6:00 a.m. work commitments will prevent him from spending time with X if his time concludes on Monday mornings. The Mother agrees that X’s return before 6:00 a.m. on Mondays is not in his best interests. The alternative, on the Mother’s suggestion, is that X be returned on Sunday night. This is the only practical outcome in circumstances where the Father’s work cuts short his time under a Friday to Monday arrangement. As previously stated, this creates the very same mischief that a Friday to Monday arrangement purportedly seeks to avoid — a face-to-face changeover.
If, in the future the Father does, in fact, regularly undertake work on Monday mornings, the practical result of the Mother’s proposal is that X will regularly return to her on Sundays and will spend less time in the Father’s care.
I again note with respect to practicality that I am sceptical about the Father’s evidence that he must work on Monday mornings to achieve permanent employment. Perhaps an order for Thursday to Sunday time in Week 1 will make the Father seek out Monday morning work to better provide for X, including paying an appropriate level of child support.
Practically speaking, for X, maintaining the current pattern for his time with his father provides greater certainty and stability.
For the reasons stated, it is more advantageous for X for him to return to the Mother on Sunday night in Week 1.
Section 60CC(3)(f) — the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of X);
to provide for X’s needs, including emotional and intellectual needs
I have concerns about the Father’s capacity in this respect, which I have already explored in my summary of the Family Report. This includes, briefly, the Father’s reported emotional indifference and poor child focus.
I agree with Ms B’s observations, particularly with reference to the Father returning X to the Mother in his school uniform. This is a selfish and poor act.
Further, if the Father has denigrated the Mother to X in the past, this must not reoccur. The Father must improve his behaviour and try to regain the Mother’s trust.
Section 60CC(3)(g) — the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of his parents, and any other characteristics that the court thinks are relevant
This factor is not relevant to the issue in dispute.
Section 60CC(3)(h) — if X is Aboriginal or Torres Strait Islander
This factor is not relevant to X’s circumstances.
Section 60CC(3)(i) — the attitude to X and the responsibilities of parenthood demonstrated by each of his parents
I have already addressed relevant material under this factor, most notably including the Father’s emotional indifference as reported by Ms B, his failure to pay child support and the Father’s practice of returning X to the Mother in his school uniform.
Section 60CC(3)(j) — any family violence involving X or a member of the his family
I have referred under section 60CC(2)(b) to the family violence issues in this matter.
Section 60CC(3)(k) — if a family violence order applies, or has applied, to X or a member of his family – any relevant inferences that can be drawn from the order, taking into account:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter.
There is no family violence order in this matter.
Section 60CC(3)(l) — whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to X
An order for X’s return to the Mother at her home on Sundays is the order least likely to cause further proceedings between the parties about parenting issues. Retaining the stability of the current pattern of the Fathers time with X is less likely to cause disruption in the child’s life. The Mother says that X can at times behave in a challenging way upon his return. A disruption to his current pattern of time may cause issues that may manifest themselves at school, if the return occurs on Monday mornings.
The Father’s proposal that he return X to the Mother’s home, without him alighting from his car, decreases risks of parental conflict by preventing in-person contact between them. Further, spending Sunday night at the Mother’s home allows X to settle into the Mother’s care before returning to school the next day.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
Much of X’s young life has been spent as a subject of litigation between his parents. The parties must cooperate and allow X to enjoy his childhood — it will be gone soon enough. X’s pre-teen years are precious, and they will shape the man that X is to become.
The Convention on the Rights of the Child, to which the Act gives effect in Australia,[32] notes in its preamble that ‘childhood is entitled to special care and assistance’ and that ‘the child, for the full and harmonious development of [their] personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding’.[33] This text does not appear verbatim in the Act, but it evidences the importance of X experiencing an enjoyable and fulfilling childhood.
[32] Family Law Act 1975 (Cth) s 60B(4).
[33] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), preamble.
Parental conflict will ruin X’s childhood, as it does not create an atmosphere of happiness, love and understanding in which X can grow. The parties must move forward and make arrangements, as ordered, work for them and, most importantly, for X.
The Father will be responsible for returning X to the Mother in a settled and happy state. The Father must reflect on his own attitudes and behaviour to ensure he fulfils this responsibility.
EQUAL OR ‘SIGNIFICANT AND SUBSTANTIAL’ TIME?
I will be making an order that the parties have equal shared parental responsibility for X. I must, therefore, consider whether or not I should order an equal arrangement, with reference to:
(a)X’s best interests; and
(b)Whether X spending equal time with both parents is reasonably practicable.[34]
[34] Family Law Act 1975 (n 32), s 60DAA(1).
If ordering equal time is in X’s best interests and otherwise reasonably practicable, then I must consider making an order to provide X with equal time arrangements.
The full section of the Act is extracted below:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), 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 interests 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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)      Subject to subsection (6), 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;
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.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(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 of particular significance 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.
Note:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
If I do not order equal time I must consider whether X should spend substantial and significant time with each of his parents. I will undertake this assessment, again, with reference to X’s best interests and whether X spending substantial and significant time with both parents is reasonably practicable.[35]
[35] Ibid ss 65DAA(2), 65DAA(5).
I do not find that an equal time arrangement is in X’s best interests. The parties have, in effect, already agreed to a substantial and significant time arrangement in the Consent Orders. Irrespective of the orders I will make concerning Week 1, the Father’s time in Week 2 will be ‘substantial and significant’ as defined by sections 65DAA(3) and 65DAA(4).
Both parents’ time in Week 1 will fall on both weekdays and weekends and will occur in a recurring two-week cycle. Both parents will be involved in X’s day-to-day routine, and the Consent Orders account for special occasions for X and both parents.
Additionally, the Father said in his evidence that his Week 1 proposal was advantageous in maintaining the significance of the routine for X. He said it would allow him to maintain contact with the school on Friday mornings, to converse with the teachers and to otherwise be involved in X’s school.
I accept the Father’s reasons as to the benefits of his proposal in this respect. The Father maintaining these connections, and having that information will be advantageous for X.
The Mother is concerned about X being exposed to parental conflict if he is returned to her on a Sunday night. There parties do not communicate well. This raises the question as to whether or not the return on Sundays in week 1 is reasonably practicable.
In my view, for the reasons already set out with appropriate injunctions, and with the Father returning X to the Mother’s home, the order I make will be reasonably practicable.
A substantial and significant time arrangement, in the terms of the Father’s Week 1 proposal, is both in X’s best interests and is reasonably practicable. I will, therefore, ultimately make orders in these terms.
CONCLUSION
Taking into account all of the matters to which I have referred, and in particular to those factors under section 60CC of the Act, I am of the view that X’s best interests will be promoted under a Thursday to Sunday time-sharing arrangement in Week 1. The orders of this Court will provide for changeovers to occur outside the Mother’s home.
A Thursday to Sunday time-sharing arrangement in Week 1, with X’s return to the Mother to occur outside her home, will decrease the risk of X being exposed to parental conflict.
I will order that the parties be prohibited from returning X to the other in his school uniform. The parties will also be required by order, to return to the other, any clothes and other items purchased for X by the other party.
I will also make a non-denigration order.
In my view, the orders I will pronounce are in X’s best interests.
The Orders that I have determined to make will be incorporated into the Consent Orders as agreed by the parties, as extracted on this page and the following two pages of these Reasons. The Orders that are not made by consent are identified as Orders 4(a), 13, 14, 15 and 20.
Exhibit ‘1’
TERMS OF SETTLEMENT
1.That all previous Parenting Orders be discharged.
2.That the mother, Ms Weimann (‘the mother’) and the father. Mr Weimann (‘the father’) have equal shared parental responsibility for the child X born in 2014 (‘the child’).
3.That the child live with the mother.
4.That the child spend time and communicate with the father as follows:
(a)   In Week 1, from after School Friday, or 3:00pm if a School day, until the commencement of School on the following Monday or Tuesday in the event of a long weekend, or 9:00am if a non-School day commencing Friday 9 July 2021;
(b)   In Week 2, during School Term, from Thursday after School until the commencement of School Friday or 3:00pm is a non-School day;
(c)   During the School holidays, the father is permitted to extend his weekend time by adding one or two nights to the father’s time in accordance with paragraph 4(a) above, on up to four occasions in each year, but only once in each Term holiday, subject to the giving the mother at least three weeks’ notice in writing of his intention to do so;
(d)   If the child is not with either the mother or the father on the morning of his birthday, that parent shall be permitted to telephone the child at a reasonable time on that morning;
(e)   On the weekend of Father’s Day, if the child is not otherwise in the father’s care, then from 5:00pm on the Saturday before Father’s Day until 5:00pm on Father’s Day;
(f)   For Christmas in every odd numbered year from 10:00am on 24 December until 10:00am on 27 December;
(g)   For Easter during every even numbered year from 10:00am on Good Friday until 10:00am on Easter Monday; and
(h)   Such further or alternate times as may be agreed between the parties in writing.
5.That, notwithstanding the above Orders, the child spend time with the mother as follows:
(a)   On the weekend of Mother’s Day, in the event that the child is otherwise in the father’s care, the child shall be returned to the mother at 5:00pm on the Saturday before Mother’s Day;
(b)   For Christmas in even numbered years from 10:00am on 24 December until 10:00am on 27 December;
(c)   For Easter in odd numbered years from 10:00am Good Friday until 10:00am Easter Monday; and
(d)   Such further or alternate times as may be agreed between the parties in writing.
6.In the event that the child spends more than 3 consecutive nights with the father, the mother may telephone or Facetime the child at or about 6:30pm on the 3^rd night with the father to facilitate the call to the child’s telephone by ensuring that the telephone is fully charged, with credit and available to the child.
7.That both parties shall ensure that they keep the other party informed of their current telephone numbers and email addresses.
8.That each party shall communicate with the other by way of email or the use of an agreed parenting app, other than for necessary changes to handover which shall be communicated by text message or, in the event of an emergency, by telephone call.
9.In the event that the child suffers any accident, injury or illness requiring medical attention whilst in the care of one parent, that parent shall notify the other as soon as reasonably practicable.
10.That, each parent shall authorise any medical or other healthcare practitioner who is consulted in relation to the child to speak to both parents about the child’s medical or other health issues.
11.In the event that the father is unable to deliver the child to School on a Monday morning between 8:30am and 9:00am, he shall return the child to the mother’s home prior to 8:30am, or alternatively, not later than 5:00pm on the preceding Sunday.
12In the event that the child is engaged in an agreed weekend sport, or has been invited to activities such as children’s birthday parties, both parties shall ensure that the child is able to participate in those sporting and other social activities.
13.That, unless otherwise agreed in writing, handovers on a School day shall take place at School and, on a non-School day, at the Shop F carpark.
14.That the child be permitted to communicate with the other parent by telephone or by Facetime at any reasonable time.
15.That the father be and is hereby restrained from consuming alcohol whilst the child is in his care, or in the 12 hour period prior to the child coming into his care.
16.That both the mother and the father are entitled to receive copies of any School Notices and Reports and to attend any School events, including sports days and assemblies that are ordinarily attended by parents.
17.In the event that either party receives a text messages [sic], email or missed phone call from the other parent, they will provide an acknowledgement and response as soon as practicable.
18.That neither party denigrate the other party to or in the presence of the child.
DATED thisday of  2021
……………………………………                …………………………………………
Ms Weimann                 Mr Weimann
……………………………………….           …………………………………………..
Glynn Williams Legal (Glynn Williams)      Bishops (Tianna Freeman)
Solicitors for the Applicant mother              Solicitors for the Respondent father
……………………………………….
Charmaine Gibson
Independent Children’s Lawyer

213 I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.

Dated: 23 September 2021

File number(s):	LNC 628 of 2018
Judgment of:	JUDGE TURNBULL
Date of judgment:	23 September 2021
Catchwords:	FAMILY LAW – parenting – best interests of the child – meaningful relationship – time agreed between parties except for Week 1 of a two week time-sharing routine – whether time in Week 1 should occur Thursday until Sunday or Friday until Monday – equal time – substantial and significant time – where allegations of denigration of one party to the other party through child – parental conflict – decreasing the impact of parental conflict upon child
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 60DAA
Cases cited:	Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 Blatch & Archer [1774] 98 ER 969 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Lavell & Lavell [2012] FamCA 34 MRR & GR [2010] HCA 4; 240 CLR 461 Shalhoub v Buchanan [2004] NSWSC 99
Division:	Division 2 Family Law
Number of paragraphs:	212
Date of hearing:	1-2 July 2021
Counsel for the Applicant:	Mr G Williams
Solicitor for the Applicant:	Glynn Williams Legal
Counsel for the Respondent:	Ms T Freeman
Solicitor for the Respondent:	Bishops
Counsel for the Independent Children's Lawyer:	Ms C Gibson
Solicitor for the Independent Children's Lawyer:	Charmaine Gibson

LNC 628 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS WEIMANN Applicant
AND:	MR WEIMANN Respondent

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	23 SEPTEMBER 2021