Weiss and Weiss

[2018] FCCA 324

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEISS & WEISS [2018] FCCA 324

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged three – high conflict between parents – nature of interim hearing – dispute regarding previous care arrangements – mother asserts father has unilaterally retained child over Christmas period – father asserts retention justified because of protective concerns relating child – assessment of risk – father asserts he is better placed to parent child because he will not be required to utilise child care – application of presumption of equal shared parental responsibility – reasonable practicality – best interests.

Legislation:

Family Law Act 1975, ss.60CC, 65DAA

Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4
MRR & GR (2010) 240 CLR 461

Applicant: MS WEISS

Respondent: MR WEISS

File Number: ADC 13 of 2018

Judgment of: Judge Brown

Hearing date: 17 January 2018

Date of Last Submission: 22 January 2018

Delivered at: Adelaide

Delivered on: 22 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Fryer

Solicitors for the Applicant: The Family Law Project

Counsel for the Respondent: Mr Scragg

Solicitors for the Respondent: Peter Scragg & Associates

ORDERS

UNTIL FURTHER OR OTHER ORDER:

1. The child [X] born …2014 live with the mother.

2. The child be exchanged between the parties to give effect to order (3) hereof at such locations as may be agreed between the parties from time to time and, failing agreement, to be at her child care.

3. The father spend time with the child as follows:

   (a)on each alternate weekend from the conclusion of child care on Friday until the commencement of child care the following Monday commencing Friday, 2 February 2018;

   (b)on each alternate Wednesday from the conclusion of child care until the commencement of child care the following Thursday commencing Wednesday, 7 February 2018;

   (c)on the Easter weekend from 5 pm Good Friday until 5 pm Easter Monday in 2018.

4. Should the father be unable to personally care for the child for a period of more than 24 hours, the child be returned to the mother.

5. If Mother’s Day falls during a time referred to in paragraph (3) herein, then the child will return to the mother’s care at 5 pm on the Saturday before Mother’s Day and remain in the mother’s care until 5 pm on Mother’s Day.

6. In the event that Father’s Day falls on a weekend when the child is not in the father’s care, the child spend time with the father from 5 pm on the Saturday before Father’s Day until 5 pm on Father’s Day.

7. The child communicate with the father on one occasion each week by Skype and/or FaceTime at a time and day to be nominated by the father.

8. Both parties shall ensure that the other is informed of:

   (a)any medical problem or illness suffered by the child while in their respective care;

   (b)any medication that has been prescribed for the child;

   (c)any social school or religious function, which the child is to attend;

   (d)the residential address of each of the other and particulars of the other, and particulars of his/her telephone number and contact email; and

   (e)any other matters relevant to the child’s welfare, including child’s care arrangements.

9. Each party refrain from making any critical or derogatory comment about the other in the hearing or presence of the child or permitting any other person so to do.

10. The parties exchange a communication book between them at each weekend handover setting out the child’s nutritional needs, sleeping patterns, health, child care and any other matters relating to her care, and in addition, details of any overseas or interstate travel to be undertaken by the father due to his employment no later than three days prior to the date on which the travel is to take place, unless it relates to an unanticipated work emergency.

11. The matter be listed for final hearing on 15 and 16 November 2018.

12. Further consideration of the parenting aspects of the case is adjourned to 24 May 2018 at 9.30 am for trial direction and when it anticipate that the family assessment report commissioned by the parties will be to hand.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 13 of 2018

MS WEISS

Applicant

And

MR WEISS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment, being delivered orally, relate to appropriate interim parenting arrangements for a child, aged almost four years of age, in circumstances where her parents have great difficulty in communicating with one another and where each has made significant criticisms of the other’s level of insight and effectiveness as a parent. 

2. The child is [X], born …2014.  The applicant is her mother, Ms Weiss.  The respondent is her father, Mr Weiss. 

3. Many difficult, but contemporary issues, arise in this case, relating to such things as the tensions occurring in blended families and from re-partnering, following separation but particularly, the balance of parenting and work responsibilities, especially when the benefits of childcare, as opposed to care in the home, are considered. 

4. These are the types of challenges facing very many families in Australia today.  In this particular case, it is not possible for very many issues relating to these matters to be definitively resolved, so far as [X]’s care is concerned.  The parties, in this case, have very different views about them.  Necessarily, these types of matter turn on concerns relating to the personal values and aspirations of her parents. 

5. At the outset, it is appropriate for me to set out what an interim hearing can and cannot do.  An interim hearing takes place in a short form.  Very often, the court is asked to make some orders, about a child, because some crisis or emergency has arisen and a decision is required to put in place some clear arrangements for the care of a child or children until more time is available for a more exhaustive hearing.

6. This is the essential nature of an interim hearing.  The parties concerned produce affidavits.  Frequently, because of the nature of the emergency arising, these affidavits have been hastily prepared and it is difficult for their readers to have a clear grasp of what has happened. 

7. In addition, evidence is often incomplete  The most frequent piece of evidence missing being a comprehensive assessment of the needs of the children concerned and the nature of their relationship with their parents and significant others.

8. All these factors are present in the current matter.  From the mother’s perspective, she commenced the case on 4 January 2018 because she had not seen [X] since 11 December 2017 and it had been her understanding that [X] would be returned to her care on Christmas Eve. 

9. She asserted that the father had unilaterally retained [X] and had demonstrated his insensitivity to the child’s emotional needs by so doing, particularly over the festive days of Christmas.  She further asserted that the father had been working overseas, leaving the care of [X] to others unspecified to her.

10. In these circumstances, she asked for her application to be listed urgently and ex parte – that is, dealt with in the absence of the other party concerned.  Obviously, it is a significant thing for a court to deal with arrangements for the care of child in the absence of one of his/her parents.

11. The application was listed urgently but I was uncomfortable with the prospect of dealing with it without the father being present.  The case was originally listed for 10 January 2018 but adjourned until 17 January so that Mr Weiss could file answering documentation. 

12. On 10 January, the parties agreed that [X] could return immediately to into the care of her mother, until the interim hearing could occur, which was then scheduled for 17 January, given the apparent on-going urgency of the situation from both parties’ perspectives.

13. Ms Weiss collected [X] from her childcare in Suburb A on 10 January, as had been agreed.  By necessarily implication, at that stage, Mr Weiss conceded that the return of [X] to her mother’s care would not constitute an unacceptable degree of risk for the child. 

The nature of an interim hearing

1. Given their abbreviated nature, interim hearings do not allow the court to resolve competing issues of fact.  There is not sufficient time for the documentary evidence of witnesses to be subject to scrutiny through oral cross-examination. 

2. In addition, on 17 January, the parties agreed to commission a family report to be prepared by an expert to agree between them and, failing agreement, by Ms F.  Necessarily, this will take some time to do. 

3. These two factors – the absence of cross-examination and comprehensive expert evidence, regarding [X]’s psychological needs and attachments – dictate that there must be a further and more comprehensive hearing of the parties’ competing applications unless the parties themselves agree on final orders, in respect of [X], beforehand. 

4. Accordingly, at this interim stage, the responsibility of the court is to put in place provisional orders, until such time as that more comprehensive hearing can take place.  Accordingly, I hasten to emphasise to each of the parties concerned, I am not deciding the case today on a final basis.

5. Rather, I am putting in place some provisional arrangements until there can be a more thorough hearing.  In so doing, the court must be aware of the inherent limitation of interim hearings.  It cannot, however, abrogate its responsibility to consider child protection issues, just because of the truncated nature of the hearing and the difficulties arising in making a positive finding that the child is at risk of harm at the interim hearing stage.  This is because the best interests of the child concerned in the hearing, both at the interim and the final hearing stage, always remain the paramount or most important consideration.

Legal principles applicable

1. The factors which the court must consider in determining a child’s best interests are set out in section 60CC of the Family Law Act 1975.  Priority is to be given to protecting a child from the physical and psychological consequences of being exposed to abuse, neglect or family violence. 

2. The court is also, given the structure of the Act, required to give close consideration to the benefits, which the child is likely to gain from having a meaningful level of relationship with both his/her parents. Other factors, set out in section 60CC(3), characterised as additional factors, must also be considered, as relevant.

3. Essentially, the court, at the interim stage, must look at the evidence, before it bearing in mind both its conflicts and the strands of what appear to have been agreed, against the section 60CC factors and attempt to put in place the outcome, which it considers will best serve [X]’s interests.

4. In many cases, this task will entail assessing risk, particularly in the protective context.  The need to assess the degree of risks arises, in family law cases, when one parent says the other represents a danger to the child concerned and the other denies the truth or gravamen of the allegation made, often asserting that the risk lies with the other parent. 

5. The court must assess risk in this conflicted and heated context.  It must assess the degree of risk, including the risk of damaging a beneficial relationship to the child concerned and put in place responses which are proportionate to the degree of risk so assessed.[1]  In legal terms, the High Court has indicated that the court should not take objectively unacceptable risks relating to the welfare or safety of the child concerned, in both a psychological and physical sense. [2]

   [1] See Deiter & Deiter [2011] FamCAFC 82

   [2] See Slater & Light [2013] FamCAFC 4

6. Because the Act emphasises the importance, subject to protective concerns, of both parents being involved with their child, a presumption of equal shared parental responsibility between the parents concerned arises.

7. This presumption is rebutted by:

   a) reasonable grounds to believe that a child has been exposed to neglect abuse or family violence;

   b)          it is not in the best interests of the child concerned; or

   c)          at the interim stage, it is not appropriate.

8. It is this presumption which triggers the court’s obligation to consider equal time or in the alternative, substantial and significant time spending arrangement between the child and parent concerned. 

9. These outcomes are, in turn, subject to the equal satisfaction of two criteria.  If you like, two green lights must be present: 

   a)      it is in the best interests of the child concerned; and

   b) considerations of what is reasonably practicable in all the circumstances.

10. In determining what is reasonably practicable, the High Court[3] has said that the court must look at the reality of the parenting situations surrounding the child concerned. In this context section 65DAA(5) of the Act is germane.

    [3] See MRR & GR (2010) 240 CLR 461

11. It directs the court to look at such things as the parents’ capacity to communicate together and make common decisions and solve problems together relating to their child and above all, the impact on the child concerned of equal time or substantial and significant time. 

12. At the end of the day, the court is required to consider a multiplicity of factors and attempt to craft an idiosyncratic order, reflecting the  special circumstances of the child  concerned, after it has considered all the relevant factors, germane to the child’s best interests. 

The respective applications of the parties

1. The law is complicated.  In the present matter, in my view, it is telling that counsel for neither party chose to make any submissions in respect of it.  At this stage, the emphasis, from both parties’ perspectives, has been on criticising the other parent concerned.  Necessarily, these criticisms are hard to establish at this interim hearing stage. 

2. From my perspective, the material of both parties has not been closely considered in its drafting no doubt because it has been very hastily prepared in response to the conflict and emergency arising, which has been compounded by issues related to access to legal advice over the Christmas period. 

3. Essentially, the mother was, for understandable reasons, anxious to get her application before the court as quickly as possible.  In response, the father has been focused on justifying his actions which, in my view, he realised must have had the serious potential to risk being characterised as high handed.  He has essentially attacked the mother and her parenting of [X], in an attempt to justify his actions. 

4. These considerations lead me to the conclusion that it would not be appropriate to apply the presumption of equal shared parental responsibility to [X]’s care.  In any event, neither party seeks that application at either the interim or the final hearing stage. 

5. The mother’s position at the interim stage is set out in her application.  She seeks that [X] live with her, that the child spend time with the father on alternate weekends from the conclusion of childcare on Friday until the commencement of childcare on the following Monday, that the father personally should care for the child and that the child is not to be left in the care of any partner of the father for any overnight period. 

6. The father’s position is set out in his response.  He seeks that the child live with him and spend time with the mother on alternate weekends from 5 pm on Thursday until 8.30 am the following Monday.  He proposes that the child be exchanged between the parties at a café in Suburb B.  He further proposes the use of a communication book to exchange information related to the child’s needs and so on and so forth. 

Background

1. Ms Weiss was born on …1990.  She identifies as an ATSI person with ties to Indigenous communities in South Australia and Western Australia.  She has two children from an earlier relationship –  they are [Y], born …2008 and [Z], born …2011. 

2. She is employed by the Employer, as a public servant.  She works 24 hours per week on Monday, Wednesday, Thursday and Friday mornings.  Necessarily, she must utilise childcare when she is working.  Childcare is expensive. 

3. It is her case she is not a well-paid person.  She rents accommodation in Suburb C.  She has re-partnered to Mr G but does not live with him.  She shares the care of [Y] and [Z] with their father. 

4. Mr Weiss is a professional, employed by Employer - if that is not the precise entity, I apologise.  He is highly skilled and it seems there is a global need for his services.  It would also appear to be the case that he earns a comfortable wage.

5. His telephone records indicate that in 2017, he has been in Country T, Country U, the Country V, Country W and Country X.  He concedes that he was in Country T recently, after Christmas and after he had assumed [X]’s care. 

6. He too has re-partnered.  His partner is Ms H.  The father and Ms H are engaged to be married.  Ms H has two children from an earlier relationship – they are [T], aged eight and [W], aged five.  Ms H is pregnant and on maternity leave from her job as a professional.  I understand she has qualifications as a professional.  It is also the position that she may not return to work once her child is born, electing to be a stay at home parent. 

7. The impression I have is that Mr Weiss is relatively financially comfortable.  The disparity in the parties’ financial positions – particularly its ramifications for the assessment of Child Support and the payment of childcare fees – provides strong emotional undercurrents to these proceedings. 

8. The parties began to live together in …2013, married on …2013, separated on 4 December 2015, when the mother left the family’s former home, which is owned by the father, in what would seem to be emotionally strained circumstances.

9. There have never been any previous orders made in respect of care arrangements for [X] or any formalised parenting plans made.  Rather, the parties have attempted to parent [X] on an ad hoc basis whilst they have engaged in an incomplete and, in my impression, perfunctory process of community based mediation. 

10. The mother’s position is that both before and after separation, she has been [X]’s primary carer.  Necessarily, as she has had to work, particularly after the parties separated, she has had to utilise childcare regularly for [X].

11. The father disputes the issue of primary care, asserting that he too has been significantly involved in providing care for [X] other than at times when Ms Weiss has unilaterally withheld the child from him. 

12. He is strongly critical that, in the past, the mother has put her own emotional needs before those of [X] to have a proper level of relationship with her father.  He characterises the mother as being psychiatrically unstable and emotionally volatile, which causes her to pose a risk for [X].

13. His concerns can be summarised as follows: 

    ·       The mother has longstanding mental health issues; 

    ·She was diagnosed with post-natal depression after [X] was born;

    ·       In 2015, her driver’s license was suspended for traffic violations;

    ·In December 2015, around about the time the parties separated, the mother hit him with her fist and was verbally abusive towards him in the presence of the child; 

    ·Around this time, he took [X] to Town 1, during which time he asserts the mother was admitted to a psychiatric ward;

    ·Earlier in 2015, he alleges that [Z] threw a fishing knife at [Y].  He categorises [Y] generally as an uncontrollable child; 

    ·He asserts the mother has made limited efforts to control [Y]’s behaviour and she herself cannot discipline him;

    ·He categorises the mother as being a financially irresponsible person, who has not paid childcare fees for [X] when they have fallen due but rather, has changed the childcare centre for [X], causing the child to lead a peripatetic existence of moving from one childcare centre to another;

    ·In 2016, he asserts that the mother did not provide a proper bed for [X]. 

1. In regards to these various controversies, the father is not in a position to provide any definitive documents or evidence to support any contention that the mother is currently psychiatrically compromised in any way. 

2. The incidents of December 2015 seem to have occurred in the aftermath of the parties’ difficult separation.  Further, the evidence indicates unequivocally that during 2016 and 2015, the father has worked overseas fairly regularly and has, ostensibly at least, been content for the mother to provide a substantial amount of care for [X].

3. This indicates that his concerns were not of such moment that he felt compelled to change his working arrangements or otherwise bring an application to the court to ventilate his concerns about [X].  In addition, an unexecuted parenting plan has been provided to me, drafted after mediation, which envisaged Ms Weiss being [X]’s primary carer and the child spending regular time with her father.  The plan also envisages the father being required to work away. 

4. Accordingly, it is a necessary implication of Mr Weiss’ evidence that, at its high watermark, his case is that the so-called informal arrangements, between the parties, envisaged both of them providing significant levels of care for [X], which was tailored around his work commitments and also involved the regular use of childcare for her.

5. Mr Weiss and Ms H met in early 2017.  This seems to have added an extra layer of complexity to the parties’ already strained parenting relationship.  This is often the case for obvious and understandable emotional reasons. 

6. Mr Weiss asserts that Ms Weiss has been more unreasonable in respect of care arrangements for [X], since the beginning of his relationship with Ms H and has been overtly hostile to Ms H for no proper reason. 

7. For her part, Ms Weiss asserts that:

   ·during 2017, Mr Weiss kept her in the dark about his work roster;

   ·there were disputes about the payment of childcare fees and Child Support generally;

   ·she was in a position of financial hardship, whereas Mr Weiss had an income of $200,000 plus; 

   ·issues arose as to who was a responsible person vis-à-vis childcare in respect of the collection of [X] in the context of Ms H and the paternal grandparents wanting to collect her; 

   ·Mr Weiss unilaterally took the child to Town 1, in 2015, when she was being breastfed and was highly dependent on her mother and continued to do so during 2016, demonstrating a lack of child focus.

The current dispute

1. It is this difficult background, which provides the context for what occurred in late December of 2017 and early January of 2018.  It is my impression that the relationship between the parties, already obviously strained at their separation, gradually got worse and worse.  Things clearly came to a point of crisis over December/January. 

2. The mother asserts that

   ·it was agreed that the father would have [X]’s care between 11 and 24 December; 

   ·[X] was signed out of her childcare on 13 December without her knowledge; 

   ·Thereafter, she asserts that she had no knowledge of who was caring for [X] in this period;

   ·On 22 December, the father contacted her and informed her that [X] had been saying concerning things; 

   ·[X] was not returned to her, as scheduled, on Christmas Eve, 24 December; 

   ·On 26 December, the mother asserts that the father proposed to her a week about arrangement for [X]’s care in an email; 

   ·The mother says that she ostensibly agreed to this regime on the proviso that [X] would be returned to her on 27 December 2017;

   ·The child was not returned;

   ·The father and mother subsequently had a telephone conversation on 27 December 2017, in which the father alleges:

   ·[X] had disclosed to him that she had been hit by her mother with a wooden spoon and pinched by her;

   ·[X] had been telling her father that the maternal grandmother and the mother had been telling [X] that the father and his family do not love her;

   ·[X] had told the father that she is scared of [Z] because he had yelled in her face.

   ·The mother denies these allegations but concedes [Z] may have scratched [X] but otherwise asserts that the two half-siblings have a close and loving relationship with one another.

3. It seems that the father did go to Country T for work commitments on 27 December.  He says that a work emergency arose.  It is the mother’s position that she did not know precisely who was caring for [X], after this date, but obviously she is likely to have had her suspicions in this regard. 

4. I have been provided with the email exchange between the parties of 26 and 27 December.  Clearly, that exchange demonstrates that the father was open to a shared care arrangement for [X] at this stage which, to my mind, must result in the potency of his historical criticisms of the mother being significantly weakened.

5. The father’s case is that he has expressed a desire to have [X] in his care consistently to the mother, rather than in childcare, particularly what he would characterise as the mother’s unreliability in regards to making appropriate arrangements in respect of it. 

6. He asserts that:

   ·On 15 December 2017, [X] disclosed to him that [Z] had scratched her face; 

   ·On 8 January 2017, after he had made the decision not to return [X], notwithstanding his acceptance of the mother’s agreement to shared care, he asserts the following occurred:

   “[X] questioned me as to why I love Ms H and why I hug her.  She told me that she does not like the mother’s boyfriend, Mr G.  She told me words to the effect that “he shouts and drives crazy”.  She told me that the mother and Mr G yell at each other in front of her and that she hides behind the door when this occurs.  [X] told me that she has asked them both to stop yelling at her.  On one occasion, she saw Mr G storm off and drive away from the mother’s home erratically.  She has also complained to me that the mother smokes and it smells.  I have previously expressed concerns to the mother about smoking in the presence of the children; she does not accept my concerns.”[4]

   [4] See father’s affidavit filed

7. The allegations, which Ms Weiss refuted in advance of them being made, namely that she had hit [X] with a wooden spoon and pinched her, do not formally appear in the father’s affidavit, although they do appear in the notice of risk. 

8. The father’s solicitor indicates that it is likely that this is an oversight.  In all the circumstances, I am not satisfied that the evidence available to me supports any finding that the mother’s care represents an unacceptable risk for [X]. 

9. Through his counsel, Mr Weiss appears to concede this point.  In my view, this is an inference which can also be drawn from his conduct, since [X] came into his care.  As I say, prior to the institution of proceedings, the father proposed an equal time regime.  After the proceedings were instituted, he agreed to the return of the child to the mother’s care.  These positions are not, in my view, congruent with those of a parent who believes a child is at serious risk of harm in the care of the other parent.

10. It is now the father’s position, as I have indicated, that [X] should live predominantly with him because he is now, in tandem with Ms H, able to provide care for [X], which will not involve as extensive use of professional childcare, if any at all, as will be needed, if she lives more with her mother than with him.

11. In this context, he deposes as follows: 

    “I have some work flexibility and am able to work from home.  When I have expressed a desire to have [X] in my care rather than the childcare, she [the mother] has refused and made threats that I will be liable for any non-attendance fees if [X] spends time at home with me.  The mother has never consulted me about childcare facilities and usually enrols [X] in facilities that are in close proximity to her rather than any midway point. 

    Further, Ms H is the homemaker and provides domestic care and support.  I am often at home and I would like [X] to spend time with us before she enters preschool, rather than spend every weekday in childcare.”[5]

    [5] Ibid at [15] & [32]

12. In my view, putting aside all the angst and controversy demonstrated by the parties’ separation and relationships as parents, this is the kernel of the dispute between them.  It also, in my view, encapsulates the difficulties confronting many separated working families in Australia whom necessity compels utilise childcare for their children because they must work to earn a living. 

13. The issues arising in this case thus are not only personal to the parties themselves.  They also raise societal and indeed, political issues, germane to many other parents who come before the court.  Fundamentally, they are also value-laden issues, which I am loathed to comment upon – namely, in generic terms, the benefits and/or deficits of home care as opposed to professional childcare which, as I say, is a necessity to a huge number of Australian parents and is often an issue within the political context. 

14. However, regardless of these difficult considerations, it does seem to me to be more probable than not that Mr Weiss has approached matters, particularly in regards to what has happened recently, with a tactical frame of mind designed to ensure his outcome of shared care and in particular, to break or dislodge what he regards as a long-standing deadlock between the parties.

15. At this stage, given the matters raised by section 65DAA(5), I have concerns about the workability of a shared care regime. As this rather sad account indicates, the parties fundamentally mistrust one another and do not communicate well.

16. Sadly, [X], at this stage, is likely to be caught between her parents’ animosity for one another, although I have no doubt whatsoever that both parties love her very much indeed.  The sad reality is that the parties’ conflict has the potential to do great emotional harm to the child.  That is just a fact of life.

Consideration of section 60CC factors

1. I now turn to the relevant section 60CC factors. Given my findings about risk, I do not consider that either parent represents a significant threat to [X]’s welfare. In this context, I bear in mind [Z]’s age; the mother’s denial of hitting the child; and particularly, the absence of any medical records in respect of the matter; but centrally, the father’s openness to a shared care regime.

2. In terms of the other primary consideration, it is clear also to me that the child has a meaningful level of relationship with each of her parents.  I have no doubt that [X] will benefit by being able to spend time with each of her parents and it is fundamental to her welfare if she grows up that she is able to have a relationship with both her mother and her father. 

3. The evidence does tend to suggest to me that the mother has had significantly more of [X]’s care than the father, both before separation and in the approximately two years since.  In these circumstances, close consideration must be given to any significant changes occurring to the past care arrangements for [X].

4. [X] is also likely to have a significant level of relationship with her half-siblings, [Y] and [Z], with whom she has shared a home for all of her life, more or less.  Her relationship with Ms H and Ms H’s children are necessarily more recent. 

5. Mr Weiss has deposed that [X] gets on very well with Ms H and the two children concerned.  I have no reason to disbelieve his evidence but the fact remains that those relationships are comparatively recent.  It is also the case that Ms H is not a party to these proceedings.

6. Of course, she is a person who is interested in the outcome of the case and is a person who is interested in [X]’s care, welfare and development.  How can she not be?  Mr Weiss and she have a very significant relationship.  They are engaged to be married.  As time unfolds, it is inevitable that Ms H will become a very significant person in [X]’s life. 

7. The case raises all the dilemmas, which flow from circumstances in which a person who is also a parent has to be able to work far away from home from time to time, in what is increasingly becoming a global labour market.  I have not been provided with any evidence of Mr Weiss’ work commitments, in the future, other than he says that he has an opportunity to work very often from home.

8. It would, if what has occurred in the past provides any indication of what will happen in the future, appear to be the case that Mr Weiss will have to work away again in the future.  If Mr Weiss is called away overseas to work again, this will raise issues in respect of [X]’s care.

9. Clearly, Ms H and Ms Weiss do not communicate well.  There is a powerful emotional dynamic between the two of them and necessarily, it would appear to be the case that there are complex emotional issues between them, regarding the discharge of the maternal role, so far as [X] is concerned, in the context of a blended family, to use the jargon arising.  As I indicated at the outset of these reasons for judgment, these are very complicated issues.

10. They are also issues about which individuals have different views and they raise issues which relate to individual’s fundamental values.  I am not in a position to unpack those issues at this stage, particularly in the absence of a more definitive assessment of [X]’s needs. 

11. Pursuant section 60CC (3) (f) & (i), I am required to consider the capacity of each of [X]’s parents and any other person, including grandparents or other relatives of the child, to provide for the needs of the child, including the child’s emotional and intellectual needs. I am also required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.

12. These considerations seem to be crucial, from each party’s perspective.  In terms of the child’s emotional and intellectual needs, it would appear to be the father’s position that he and Ms H are better placed, through home care, to provide for [X]’s emotional and intellectual needs. 

13. From the mother’s perspective, she asserts that she is forced to use childcare through necessity and it is necessarily a flawed value judgment to assert that there is anything wrong about that.

14. In addition, she would assert that, through his unilateral actions, the father has demonstrated a flawed attitude to the responsibility of being a parent.  Mr Weiss, too, would say the same about Ms Weiss. 

15. There is no evidence available to me to indicate that [X] is not flourishing at the present time or that the past arrangements, including childcare arrangements, have had a detrimental effect upon her.  Neither party asserts that.  As far as I know, she is similar to many children who are placed regularly in childcare.

16. Although this is a case about childcare, to a significant degree, neither party told me very much in their respective evidence about [X]’s childcare arrangements.  When the matter first came into court on 10 January, as I recall, I inquired where [X] was in terms of arrangements for the handover and I was told that she was attending a childcare in Suburb A. 

17. When the interim matters were argued, I asked of the mother’s counsel, Mr Fryer, where was the child care that [X] was using then and I was told that it was in Suburb D.  I recall that this caused a gasp of consternation to come from Ms H.  She is not at court today.  As I say, Ms Weiss is renting in Suburb C and, as I understand it, Mr Weiss is living in Suburb E.

18. One of the things about this case is that, whatever is the outcome, practical considerations arise.  Regrettably, I do not know very much about those practical considerations, from either of the party’s perspectives, as this has not been a focus of the proceedings other than that each complains that the other doesn’t tell him or her about things. 

19. I am not sure what the answer to those problems and issues is, other than, as I indicated at the outset, it is likely that – well, it is not likely, it is the case, that the parties are going to be involved with one another for a very, very long time indeed, as parents.

20. The child is also one who has an Aboriginal and Torres Strait Islander background.  I am directed to consider issues relating to the child’s entitlement to enjoy that aspect of her culture.  That is likely to be a significant issue as [X] grows older, but from my point of view, at this stage, this early stage, this is not likely to be a significant factor one way or the other.

21. At this stage, and in this very difficult case, and although the parties may disagree with many things that I have said, I do not think they can say that I have not thought closely about it because I have thought closely about it because, as I say, I think this case demonstrates all manner of difficulties which face people in your respective positions.

22. It is difficult being a parent in the second decade of the 21^st century because everyone is being squeezed from all sorts of directions – financially and emotionally – and families are very complicated.  There are half-siblings, new siblings, new relationships, pressures, issues arising to travel arrangements in respect of care.  It is all very difficult.

23. There are also issues relating to people about whom I know very little, if anything at all, and that is the grandparents on both sides who, I suspect, are vitally interested in the outcome of this case. 

24. What I have to do essentially, at this stage, is, as best I can, put a bandaid on things until I can come to it again, in more detail, if the parties are themselves not able to resolve the issues between them themselves.   As I said earlier, that hearing is going to be in November, unless people start talking about seeing if they can repair the harm that has been and is being done some time before that.

25. I am very well aware that just by getting me to say things, in these reasons for judgment, which is my job, I do damage to the parties’ parenting relationship.  I do damage to a relationship that is fundamentally important to [X]. 

26. It is not helpful to [X] that her parents do not get on, do not like one another and come to court to criticise each other. But I would be naive to think that after the breakdown of the relationship it was going to be easy.  Of course, it cannot be easy.  Everyone has to adjust.  The wounds have to heal.

27. This morning another fire cracker, if you like, was thrown onto the camp fire and that is about the property, the financial aspects, and Mr Scragg told me all about the financial issues.  Well, I do not know what that part of the case is about, other than what I have summarised earlier.  I just know it is complicated.  But, at this stage, I think the factors which militate against shared care are the tensions and the acrimony between the parties and the obvious problems that arise now.

28. Who of you should provide the fundamental care for the child? I consider that the various section 60CC factors militate in favour of the mother at this stage because of two factors predominantly: the prior arrangements for her care; and the fact that there should not be any significant change to those arrangements, particularly not one which has a flavour of self-help, although I concede that it is an element of Mr Weiss’ case that he was driven to some extent by self-help.

29. I am not of the view that there are serious risks relating to the mother’s care of the child.  Clearly, there are some question marks, but there are always question marks, but, at this stage, I do not think there are risks relating to the mother which it would be unacceptable for me to take.

30. I also think I have to do some things to reduce the tensions between Ms Weiss and Ms H pending further information, so I will make some orders about a communication book, and also that, if at all possible, Mr Weiss gives some information about his roster arrangements, that Ms H not be in a position to care for the child overnight.

1. For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     14 February 2018