White and Lockhart - [2012] FMCAfam 127

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITE & LOCKHART

[2012] FMCAfam 127

FAMILY LAW – Entrenched parental dispute – dispute affecting child of the relationship – father’s application for substantial time – family report writer recommending less time than father seeking – orders made substantially in accordance with reporter’s recommendations.

Family Law Act 1975, ss.60CC, 61C(1), 61D(A)(1), 61D(A)(2), 61D(A)(4)

Evidence Act 1995, s.140

Goode v Goode [2006] FamCA 1346

Applicant:

MR WHITE

Respondent:

MS LOCKHART

File Number:

MLC 7583 of 2009

Judgment of:

Burchardt FM

Hearing dates:

31 January & 1 February 2012

Date of Last Submission:

1 February 2012

Delivered at:

Melbourne

Delivered on:

8 March 2012

REPRESENTATION

Counsel for the Applicant:

Ms M. Baczynski

Solicitors for the Applicant:

Roger O’Halloran & Co

Counsel for the Respondent:

Mr D. Whitchurch

Solicitors for the Respondent:

Altavilla Vessali

THE COURT ORDERS THAT:

The child [X] born [in] 2008 (“the child”) live with the mother.
The mother have sole parental responsibility for the child but she is required to consult with the father about:
(i)Any significant medical treatment for the child;
(ii)Any choice of school to which the mother proposes to send the child.
The child spend time with the father:
(a)
Each alternate Saturday commencing 10 March 2012 from

9:00 am to 5:00 pm with the changeover at [organisation omitted], [Suburb A];
(b)On each Tuesday and Thursday commencing 13 and 8 March 2012 respectively from 9:00 am to 6:00 pm with changeover at [organisation omitted];
(c)From 1 January 2013, from the first weekend the child spends with the father, from Saturday 9:00 am to Sunday 12:00 pm;
(d)From 1 January 2014, from the first weekend the child spends with the father, from Saturday 9:00 am to Monday 9:00 am, with return to be to crèche or school as applicable;
(e)From when the child starts school on each Wednesday from after school until Thursday at the start of school, with the father to collect and return;
(f)When the child starts school, at such times as the parties agree during school holidays, and liberty is granted to the parties to apply in the event they are unable to agree;
(g)On Fathers Day from 10:00 am to 5:00 pm with changeover at [organisation omitted];
(h)If the child is in crèche on the father’s and the child’s birthday from 9.00 am until 5.00 pm;
(i)As otherwise agreed between the parties; and
(j)In the event that any of the father’s time falls on a public holiday, other than Easter, Christmas or Boxing Day such time is suspended to the next day on which crèche or [organisation omitted] is open;
The child will spend from 9:00 am to 6:00 pm with the father on Easter Friday 2012 and each even-numbered year thereafter and from

9.00 am until 6.00 pm on Easter Sunday in 2013 and each odd-numbered year thereafter.
The parties engage a counsellor to assist them to mediate any matters of disagreement about the child, the counsellor to be agreed between the parties and failing agreement to be nominated by Dr. O.
Changeover other than at [organisation omitted] or [organisation omitted] will be at [Suburb A] Police Station.
The father is not to leave the child alone with the father’s adopted son [Y].
Neither party is to take the child to their place of work.
In the event the father is not available to spend time with the child pursuant to order 3(b) the child is to remain at the [organisation omitted] with the father to be responsible for any additional fees.
The parties are to communicate with one another about the child by text or email and shall keep their respective mobile telephone numbers unblocked to receive messages from the other.
The Watch List order previously made in respect of the child is to remain in full force and effect.
Both the father and the mother are restrained from denigrating the other in the hearing and/or the presence of the child.
The father pay the mother $25.00 each week into the mother’s nominated bank account (to be characterised as Child Support).
The father and the mother shall forthwith notify the other in the event of the child suffering serious accident or illness and provide to the other the child’s doctor’s name and hospital details including telephone numbers and both shall be permitted to liaise with the child’s doctors and they shall advise each other of any medical issue in respect of the child.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
There be no orders as to costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 7583 of 2009

MR WHITE

Applicant

And

MS LOCKHART

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the best interests of [X], who was born [in] 2008. The applicant father’s position, as articulated by him in giving evidence, is that [X] should live with him from Monday to Friday each week and spend weekends with his mother. In the alternative, he seeks that the present regime for his spending time with [X], which is from 9:00 am to 6:00 pm each Tuesday and Thursday, and 9:00 am till 5:00 pm on each alternate Saturday, be extended. The father specifically sought overnight time on his weekend, and it was implicit in his position that he would seek additional time during the week in such amounts as the Court thought proper. He also sought overnight time at Easter this year in any event. He seeks that there be an order for shared parental responsibility.
The mother, by way of contrast, adopts the recommendations in the report by the family consultant, Dr O, which would see the present orders continue and overnight time commence in 2013. She seeks that the order for sole parental responsibility in her favour continue, but she agreed to some time at Easter this year.
For the reasons that follow, I propose to make orders substantially in accordance with the recommendations of Dr O as adopted by the mother.

The previous interim matter - decision given on 17 June 2011

On 17 June 2011, I gave an oral Judgment on the last day of hearing that was originally posited to be a final hearing. As I stated in that Judgment, it became clear during the course of the hearing itself that the Court should make interim orders and review the matter in six months’ time. For reasons then explained, the Judgment was given orally on the day.
These Reasons for Judgment should be read in conjunction with the earlier Reasons. I would repeat and point to the following findings that I made in that Judgment:
(a)I roundly rejected the father’s assertion that the mother had “planned it all along”, a phrase I take to imply that the mother had always intended to leave him after she had got as much money out of him as she could;
(b)the mother had been the primary carer of the child;
(c)there was no necessity for supervision when the father spent time with [X];
(d)the father’s failure to pay child support was not explained by convincing evidence on the part of the father;
(e)the father’s evidence in part was unbelievable;
(f)the mother was not a perfect witness by any means either, and had a tendency to exaggeration;
(g)the father had abused the mother;
(h)there had been family violence, but not to the extent alleged by the mother;
(i)the parties would not like my conclusions, but would have to understand that the future evaluation of their behaviour would proceed from the findings of credit I had made;
(j)notwithstanding that Dr O recommended three days per week for some four to six hours, and not much less, in the circumstances in which the parties found themselves, it had to be two days from 9:00 am till 6:00 pm.

Events post-separation – the positives

Some good things have happened since separation. Both of the parties have attended parenting courses, which is good in itself, although its success has, as I will indicate, been extremely limited.
The father spends time with [X] on Tuesdays, Thursdays and alternative Saturdays. On Tuesdays, he takes the child swimming, which the child clearly enjoys (see Exhibit A3). On Thursdays, the child has music lessons which, likewise, he very much enjoys (the mother also pays for him to have music lessons at a cost of $70 per term). On Saturday he attends what appears to be a two-hour course in Mandarin which, while it might seem somewhat long to me, is said by the father to involve children of similar age and to be [X]’s favourite pastime. He was not challenged as to this in cross-examination, and I accept it.
The father has continued to utilise the assistance of a counsellor,

Ms P, who has filed an affidavit setting out her various consultations (some of which pre-date the previous hearing and which, so far as I can recall, were not before the Court).

Issues since the first decision – the problems

There are two issues in respect of which I do not propose to make findings. The first is an infantile dispute between the parties as to whether or not the father improperly retained toys (particularly cars and clothing) belonging to [X]. Both sides had more than enough to say about this in their affidavits and in their evidence, but as I indicated during the hearing, bickering over this sort of minutiae is utterly unhelpful in seeking to sort out where [X]’s best interests will be accommodated.
The other issue, not as unimportant but just as incapable of resolution, is the question of the alleged blocking of text messages from the father by the mother. I indicated that I would not be able to make a finding on this matter, and that I did not propose to do so in any event. As things have ultimately turned out, it seems clear to me that there has been some sort of technological difficulty in the receipt by the mother of text messages that the father has sent in at least recent times. As I told the parties, given that they both say they want to send and receive text messages from one another, their energies will be far better expended in sorting out any problems there may be about texting than bickering as to whose fault it is.
I now turn to a number of the other issues the parties have raised in respect of which I am able to come to a conclusion. They are not necessarily set out in chronological order.
The first incident I shall deal with is a changeover that took place at [organisation omitted] crèche on 12 July 2011. The father asserts that the mother unreasonably failed to come in to get the child, notwithstanding his reasonable request that she do so, thus occasioning him distress. The mother asserts that she saw the father at the crèche, did not wish to interact with him, and sought that [X] be placed with a teacher till she could collect him. Shortly after the incident, the father sent the mother a text saying, “Y make him suffer?”
It is highly likely that [X] was upset by the spiteful interchange between his parents on this occasion, and it is sufficient in my view to say that it is clear that this sort of difficulty arises out of the heightened emotional responses each has to the other, based in part on extreme mutual dislike and on the mother’s part, fear arising out of her treatment by the father during the relationship.
The next issue is an invitation extended by the father to the mother to attend a birthday party for [X], and a further invitation to attend the AFL grand final with him and [X] and one of his daughters.
The mother rejected these invitations and regards them as “bizarre, unrealistic and disingenuous”. The father says that he is simply seeking to reach out to the mother to try and arrange for them to communicate better and spend time together in an amicable way in [X]’s best interests. In the circumstances in which the parties have such strong feelings about one another I accept the mother’s characterisation. In evidence in re-examination, the father said words to the effect that if he wrote down every complaint he had about the mother, it would be “War and Peace”. That information, voluntarily supplied and not under cross-examination, right at the end of his evidence, indicates his true views about her. For him to be asking the mother to attend events with him shows a disturbing lack of insight at best, and might well support a finding that he was seeking still to distress the mother and control her life.
Yet a further incident took place at changeover at [Suburb A] police station in November 2011. Here, the father says that [X] saw him and tried to run towards him but was restrained by the mother. The mother says that the father came up, effectively from behind her, and tried to grab [X] from her arms, so she insisted upon changeover taking place inside the police station at the counter. She says that the father told the supervising policeman that she was a nutcase. He denies all of this.
The mother was pressed in cross-examination along the lines that while it was fine for [X] to run to her, it was not fine for the same thing to happen when he wanted to run to his father. It is regrettable that the parties press these aspects of their argument. It is obvious that once again there was a spiteful interchange between them which would clearly have been upsetting to [X], and I repeat that as with the earlier incident at [organisation omitted], this arises from the dynamic between the parties. I am not able to say whether the father described the mother as a nutcase in the absence of independent evidence from a third party who could have been subpoenaed by either of them. I note, however, that the father’s evidence remains extremely condemnatory of the mother.
While touching on this question of the way the parties talk to one another, I am likewise not able to say whether the father told the child to “kiss the monster” when saying goodbye to the mother. The father says there was a monster toy nearby, and that this might have given rise to the misunderstanding. Once again, I am not able to decide what was said that gave rise to concerns on the mother’s part. While it is perfectly possible the father may have insulted the mother (I found him to have done so in the past in my earlier decision), I am not able to say whether he did so on this occasion. What I can say is that once again it shows the very poor interpersonal dynamic between the parents.
One area in which there is no factual dispute concerns yet another incident of changeover at the crèche. The father says that he had rubbish with him which he deposited in a bin, and also had a plastic bag containing wet underpants belonging to [X]. On his way past the mother’s car, he placed the bag containing the wet underpants on the front of her car. She took a photograph of it, which is in evidence. Taking the photograph in this way is typical of the conduct of the parties. I note that [X] has been photographed by his father to show some scratches on his back. The father complains that he does not know how they happened because the mother will not communicate with him, but I note that he did not even have the insight to do the obvious and ask the child how they got there. The mother was not cross-examined as to their provenance, and I accord no weight to them.
Returning to the wet underpants issue, it was the father’s evidence that these underpants had been made wet during transport of [X] by him that morning. It seems surprising that he would be unable to rinse them out and dry them before return at 6:00 pm. In any event, he was unable to explain why it was that he placed the pants on the windscreen, and I remain as puzzled as the mother must have been about why this should be the case. It is one aspect of the father’s behaviour that suggests that despite his assertions that the counselling he has undertaken has assisted him and he has moved on, it is in fact not the case. At best, placing a plastic bag containing soiled clothing on the front of somebody’s car without explanation is unfeeling and insensitive. I find it is typical of the father’s overbearing conduct towards the mother.
This incident leads into the parties’ difficulties with toilet training for [X]. Because they are quite unable to communicate, each blames the other for any difficulties and delay in the process. Dr O confirmed that [X] was slightly late in his toilet training, and as I find, this is more probably than otherwise caused by tension as a response to the stress occasioned by the difficulties between his parents. It would be far better if they were able to have the insight to act cooperatively for [X]’s benefit in this regard.
The next issue with which I shall deal is the question of the father’s visit to Africa which, despite some obfuscation by him, clearly took place a matter of a week or so after my earlier Judgment in June 2011. It was the father’s evidence that he had planned to go to Africa from about April and May. These plans happened to come to fruition, it was implied, shortly after the Judgment. He said that he had a customer in [country omitted], [company omitted], and that in the last year he had obtained about $4,800 worth of business from that country. He had obtained no business from [country omitted], and approximately $10,000 from [country omitted]. This was to be considered in the light of the overall turnover of some $600,000 in his business last year.
His evidence was that he had gone to all three countries at a cost of about $3,700 for a two-week visit. He also gave evidence that he had a driver for a car at least while he was in [city omitted]. His evidence was that noting that he was not far from where the mother’s parents lived, he dropped in and gave them photographs of [X] and had a nice chat and a cup of tea with them.
The mother’s evidence, given on hearsay only, was that the father turned up unannounced and maligned her to her parents in various ways, and was told to leave by her father, who was annoyed by the incursion.
One has to approach hearsay evidence of the sort given by the mother in this regard with considerable caution. There is no obvious impediment to having her father put on affidavit.
Nonetheless, I find the father’s behaviour in this regard as incomprehensible as Dr O did. It almost beggars belief that someone could so lack insight as to turn up unannounced and uninvited at the home of the parents of his former spouse approximately one week after the Court had handed down judgment in which serious adverse findings were made about him. Any reasoning person would have presumed that the mother would have informed her parents of this outcome and would have assumed that they would not be welcome. I am also concerned by the proposition that the father’s visit was not premeditated. As the father had it, he just happened to notice he was close by and decided to drop in, but I note he was nonetheless equipped with photographs of [X] which he says he was able to give to her parents.
Similarly, I note that the amount that the father says he expended seems, as a matter of impression, to be extraordinarily low for a two-week visit to three foreign countries involving not only flights from Australia to Africa, but flights between three countries, which would have also cost money together with, at least in part, the presumed hire of a car and driver for only a total of $3,700.
All this is to be seen in context where total sales thus far for the last year in the entire region amount to less than $15,000. I can accept that there may be a high mark-up on the trade that the father’s business does with Africa (although there would be attendant costs of transporting goods and the like) and I can also accept that a businessman would wish to expend money to make money.

Looking at all the evidence about this African trip as a whole, however, I think it is far more probable, given the embittered attitude that the father has towards the mother, that he did indeed attend to denigrate her as she asserts (albeit on a hearsay basis). I note in this regard that the father has reported to both Dr O and his counsellor, Ms P, that he was extremely upset by the findings that I made that were antithetical to him. It is far more probable than otherwise that the father’s account is untruthful.
Even if I am wrong in this regard, the father’s decision to attend the mother’s parents in the fashion that he did at the time when he did would show at the very best an alarming lack of insight.
The next minor issue I should deal with is that of the rash that [X] apparently suffered. From the medical evidence tendered, it is clear that the father’s description of the rash as being effectively nothing was quite correct. The fact that his rash promptly burst out again several days later is neither here nor there. The fact that the mother regards the father’s conduct as being denigrating of her shows her oversensitivity to the father’s behaviour and her tendency to exaggerate, the latter being a quality commented on in my earlier decision.
To continue, the parties’ obsession with [X]’s clothing is one about which they are both open to criticism, although the father more so. The mother complains in a fashion that in my view is grossly exaggerated about the father deliberately destroying clothing when [X] is in his care. True it is that some may get damaged, but the proposition that the father is deliberately doing this is so out of kilter with ordinary human experience as to be ridiculous. I accept the father’s denials in this regard. It was an aspect of his evidence that I found believable.
On the other hand, however, the father’s criticisms of the mother’s clothing of the child are patently ridiculous. He pointed to photographs of [X]’s clothing in Exhibit A3, but those photographs show the child perfectly appropriately attired. Perhaps not surprisingly, his mother is not able to afford brand new top-of-the-range clothing, but the tenor of the father’s criticisms, which even descended to criticisms that the colours clashed, shows a sort of snobbish intolerance. He did not like the fact that on one day the child was in tracksuit trousers. He complains that the child is often not smartly dressed. He even went so far as to suggest that [X] is well-dressed on those days at crèche when he does not see him, the obvious implication being that the mother deliberately sends him in substandard clothing when he is sent to his father. These observations only go to support the proposition that in some ways the father is an exceedingly strange and troubled personality.
One other matter I should mention in passing is that of the father’s capacity to spend substantial amounts, one would infer, on clothing, and also upon the various ancillary activities he conducts with [X]. This seems to stand in relatively stark contrast to his asserted earnings of $20,000 per annum.
Next I should deal with assertions made about the parties’ times of work. The father says that he is available to look after [X] from Monday to Friday because his business effectively runs itself. This is clearly not the case. On his own evidence, his business manager plays golf on Wednesdays and he has to be there to hold the fort then. His evidence that he occasionally goes down to the workplace and, as it were, potters about was, I am afraid, completely unbelievable. A business with a turnover of $600,000 engendered by a relatively small number of employees is not one where the employer leaves their hands wholly off the tiller. Indeed, it is clear from his evidence that the father does not do so. I accept that he has a measure of considerable flexibility as to his work, but given that on his own version he has to hold the fort at the very least while his manager is off playing golf on Wednesdays, his assertion that he is immediately available without any question at all times between Monday and Friday for [X] is plainly untrue. This conclusion is reinforced by his admission that he travels internationally and interstate from time-to-time, the costs associated with such travel once again throwing into some question the proposition that his net income is as low as he says.
The mother asserted (without prior indication in any affidavit) that she has recently put in place a regime whereby she will no longer work on Tuesdays and Fridays. There is no indication that she wishes to have [X] on Tuesdays (although there is no prima facie reason why the father’s day could not be changed to Mondays to enable this to occur). I infer, however, nothing sinister against her for failing to want [X] on Tuesdays, as there is simply no evidence to support such a conclusion one way or the other. I note that the mother will not be working on Fridays, and that [X] will be spending at least some of his time at crèche on Fridays. The net result will be that he will be in crèche on Mondays and Wednesdays, and possibly some Fridays. Whatever the position may have been in the past that does not seem to me to be excessive, but rather likely to be beneficial, especially since it is something [X] has known all his life.
Finally, I should deal with the father’s extraordinary assertions that he does not wish to give his address in open Court for fear of the mother. Although he has never put this on affidavit before (and the proceedings have been underway for a very long time and have involved copious affidavit material), he asserted that the mother continues to stalk him. He said he lives in secure premises and is concerned about his security. He said that the mother told him in 2009 that she deals with unsavoury people and could get them to “sort him out”. He says that she stalks him from time-to-time. He said, “I have seen people hacked to death for failure to pay attention to their enemies”. He conceded that this was the first time that he had mentioned this possibility. He said that the mother had mentioned the official secrets act to him in 2009, and that she was resettling people from Iraq. He said he would not be harmed while [X] was with him, but that, “I will be attacked and she will have an alibi”.
I have already made a finding that the mother did not stalk the father. In part, the father’s evidence as now propounded simply ignores that finding but, of course, I accept that that is what he says.
I regret to say that the father’s assertions about the likelihood of his assassination or severe harm at the hands of agencies of the mother are so far-fetched almost as to speak for themselves. It is redolent of a very troubling state of mind on the father’s part. If it is necessary to do so, and in the light of what I have just said it may well not be, I find expressly that the mother will not cause the father to be harmed as he asserts. The remarks asserted to have been made in 2009 were not put to the mother in cross-examination. I find that they were not said. Allegations of this sort bring into play the operation of s.140 of the Evidence Act 1995 (“Evidence Act”), and indeed provoke analysis as a matter of ordinary common sense. They are extraordinarily far-fetched and I reject them.

Conclusions about the evidence of the parties

I should make it clear that I have had regard to all of the evidence filed, including that of those witnesses who were not called to the stand. There is no question whatsoever that the father adores his son and is a perfectly competent father to care for him in a general way. There is equally no question that some of his attitudes towards the mother range from the offensive to the bizarre. They are most unfortunate and very troubling. I am particularly concerned, although it might seem to be a small matter, that on the one hand the father says that he has moved on and wishes to communicate and improve his relationship with the mother, and then on the other hand says in re-examination that if he wrote down all of his complaints, they would constitute “War and Peace”. The obvious inconsistency between these assertions is extremely troubling. I have no doubt that it is the latter remark that more truly reflects his state of mind.
Likewise, however, the mother continues to have oversensitivity to the father and a tendency to exaggerate. She was extremely combative in cross-examination, and many of her answers were unresponsive. She is a highly intelligent woman and has an unfortunate tendency to exaggerate what, in some respects at least, are merely clumsy, insightless actions or initiatives on the part of the father.

The report of Dr O

Dr O provided a report dated 10 January 2012. It was the subject of some criticism by the father, who provided a responding affidavit to it. It is her recommendation that [X] continue to live with the mother and that she retain sole parental responsibility. She recommends the continuation of the interim orders presently in place, but that final orders provide for the addition of overnight visits between [X] and the father in January 2013 on the Saturday nights of scheduled contact. She further recommended that at the time [X] commences school (prep), overnight visits extend to consecutive overnight visits per fortnight.
It is sufficient for these purposes to say that this is the third report

Dr O has produced in this matter, and the position as she sees it now has altered from her earlier two reports. The regime of time she recommended earlier arose from [X]’s age and developmental position at the time.
While [X], in Dr O’s opinion, is developing generally at a normal rate for his age, Dr O retained a concern that [X]’s degree of separation anxiety is excessive for a child of his age. Dr O made a number of observations critical of the father. She regarded some of his behaviour as defying logic, including placing the bag of what she described as rubbish on the mother’s car, inviting her to a birthday party and visiting her parents in [country omitted].
She was also, at least on some occasions, slightly inaccurate in some of the conclusions she reached about the father’s conduct. I note that she thought that the father had lied to his daughters in order to force them to attend the family reporter. In fact, while the father’s assertion to his adult daughters that they had to attend the assessment was plainly wrong, it was not a lie. It rather arose from erroneous advice from his solicitor.
Nonetheless, the clear purport of Dr O’s assessment was that at the age he has now reached and for the next several years, [X] is likely to be harmed and damaged in the event that time were to be increased.
It should be noted that while Dr O was at times critical of the father’s conduct describing it, as I said, as defying logic, she made express findings to which she stood fast in her evidence, including in cross-examination by counsel for the father, that:
a)the father is a loving father;
b)the father is well-able to care for [X] while he is in his care;
c)there has never been an issue in her mind that the father would harm [X]; and
d)that [X] is temperamentally capable, even at the present time, of spending overnight time with his father.
At this point it is appropriate to deal with the criticisms advanced in cross-examination and submissions by the father’s counsel of

Dr O. It should be noted that self-evidently counsel for the mother, whose position was to adopt Dr O’s report, was necessarily not antagonistic.
The same could not be said of the cross-examination by counsel for the father. It was put that Dr O had formed a negative personal view of the father. Dr O denied this. It is not necessary to traverse in detail the matters put in cross-examination. It suffices to say that while Dr O did undoubtedly make at least one or two errors in her recitation of events that led her to make negative comments of the father, these did not arise out of personal dislike. I accept Dr O’s evidence under cross-examination that it is not her job to determine findings of fact, but rather to offer a view upon what she is told.
That Dr O should decide that the father still has relatively negative emotions about the mother is scarcely surprising in view of the fact that the father disclosed to her (see paragraph 32 of Dr O’s report) that “Mr White apparently holds firm in his view that Ms Lockhart engineered the situation in order to extort material and financial gain.”
Although it was put to her time and again by counsel that [X] was old enough to sustain overnight time and more extended time with his father, and although Dr O agreed that he could sustain at least one overnight at the present time, Dr O stuck steadfastly to the proposition that the lack of insight on the part of the father was so great that extended periods of time with his son at this stage are likely to be damaging to him because of the conflict that will continue to obtain between the father and the mother of the child.
Dr O’s evidence was given within her area of expertise. Her demeanour under extremely forceful cross-examination was entirely persuasive. In any event, Dr O’s conclusions are those to which I myself have come in the face of the presentation of the parties and the materials as a whole.
I reject the criticisms made of Dr O in a general way, while accepting that she made one or two errors arising out of the particular way in which information was presented to her.
Against these introductory findings, I now turn to the statutory pathway indicated by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at [65].

Parental responsibility

Section 61C(1) of the Family Law Act 1975 (“the Act”) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child unless the Court makes an order changing this status.
The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the parents to have equal shared parental responsibility, which must be applied unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s.61D(A)(1) and s.61D(A)(2)).
The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared responsibility would conflict with the best interests of the child (s.61D(A)(4)).
Here, it should be noted in passing that orders for the mother to have sole parental responsibility have been in place for some time, and that all parties agree that [X] is generally thriving under that regime. That is not of course the statutory test, but it is perhaps a relevant background matter.
What is, however, in the foreground, and fully relevant, is the opinion of Dr O that joint parental responsibility is not in [X]’s best interests.
At paragraph 58 of her report, Dr O stated:
“As noted in previous assessment reports the optimal position for [X] would be to have both parents involved in decision making with respect to major life decisions. However, to enable this to occur there needs to be established, respectful and open communication between the parties. While shared parental responsibility would be the ultimate future aim, at this time it is not considered in [X]’s best interest for shared parental responsibility given that the parents are emotionally unable to cope with each other.”
Those observations entirely accord with my own view of the situation. These two parents are unable even to pass [X] from the one to the other without bitterness and mutual obloquy, which can only be distressing to him. They cannot take him to the doctor, toilet-train him, or otherwise aid in his development in a mutually cooperative way and, indeed, such issues only give rise to mutual recrimination. It should be noted in passing that one of the striking features of this case is that neither party concedes in even the smallest measure that they may have themselves contributed to the difficulties that presently obtain. Each completely self-exculpates and, on the other hand, vividly blames the other.
In this regard, I do interpolate again and say that this concentration on blame, most accentuated perhaps in the closing submissions for the father, misses the point. While obviously the causation and responsibility of past events is an inescapable part of the dynamic that obtains between the parties, what the Court is concerned with, and the parties ought to be also but are not, is [X]’s best interests.
I propose to adopt the recommendation of Dr O as to parental responsibility. Nonetheless, it is conceded by the mother through her counsel that the father should have a measure of input in relation to which school [X] attends in due course, and in respect of any significant health issues that may arise. While I will order that the mother have sole parental responsibility, I will also order that she notify the father of any school that she proposes to send the child to, and of any significant medical treatment that she proposes he undergo. Such notification is to be made in sufficient time to enable the father to be consulted with as to his views.
As with any other matter of disagreement that may yet arise between them, and there are bound to be all too many, any disputes arising from such consultation are to be referred to mediation with a counsellor. The parties will be directed to identify a counsellor, and in the event of disagreement between their solicitors as to who that counsellor should be, it is a counsellor to be recommended by Dr O.

[X]’s best interests

Where the presumption of equal shared parental responsibility is not applied, the Court is obliged to consider what arrangements would best promote the child’s best interests including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. The child’s best interests remain the overriding consideration.
Here, the father’s primary position, at least at this stage, is not equal time, but rather that [X] spend more time with him than he does with his mother. I have already set out the mother’s proposals.
It is noteworthy in this regard that in relation to his proposal that [X] live with him from Monday until Friday, the father said in evidence, “I want to look after [X] during the week. That would be the fairest thing. He enjoys his time with me.”
The last of those observations is undoubtedly true. [X], it is agreed, enjoys his time with his father, as he does with his mother. But it is noteworthy nonetheless that the matter the father first referred to was the proposition that this was the fairest thing; in other words, fair to him and to the mother. [X] was mentioned second. I would not wish to make over-much of a mere accident of expression, but in fact the ordering of those remarks is in my view consistent with the father’s lack of insight. His first and primary focus is upon his own needs to have [X] in his life combined, I suspect, whether consciously or otherwise, with a significant dislike, perhaps even amounting to hatred, of the mother.
The second thing to be noted about what the father said was that when taxed with whether [X] would miss his mother if he was to be spending all of Monday to Friday with his father, he said he did not think he would miss her much. This proposition flies wholly in the face of the fact that the mother has been the primary carer of [X], at the very least, since Court orders were made in this matter, and the proposition that he be away from her for four nights in a row at the age of approximately four without distress is as extraordinary as it is striking.

In my opinion, it is clear that equal time is not in [X]’s best interests. In fact, neither party seeks it and Dr O says it “remains untenable” (see paragraph 55 of her report). Consideration of substantial and significant time is dealt with below in the context of the parties’ competing positions.
Although the nature of the dispute between the parties in one sense may make it not wholly necessary to do so, it is appropriate to identify each of the matters indicated in s.60CC of the Act.

The primary considerations

All parties agree that it is in [X]’s interests to have a meaningful relationship with both of his parents. All parties agree that it is necessary to protect him from physical or psychological harm and from being exposed to abuse, neglect or family violence.
In the context of the findings earlier made, there is no question of [X] being exposed to risks of abuse, neglect or family violence. The real difficulty is the prospect of psychological harm. In the face of Dr O’s remarks, which of course I have already traversed in the context of the presumption as to shared parental responsibility, there is no doubt that it is important in the context of this case to give weight to the damage that would be done to [X] if Dr O’s view of the matter is correct, which I find it is.

The additional considerations

Section 60CC(3)(a)

The child is far too young to express any meaningful views as to what he wants, although it does seem clear that he loves both his parents.

Section 60CC(3)(b)

The child has a warm and loving relationship with each parent, and has, as best I understand it, a good relationship with those of the father’s other children he meets from time-to-time. He has not otherwise met any of his extended family in any meaningful way that the Court has been informed of.

Section 60CC(3)(c)

Unfortunately, because of their mutual dislike and contempt, the prospects of either parent meaningfully promoting the relationship with the other are extremely limited, especially so on the part of the father. While the mother says she wants the child to have a meaningful relationship with his father, I approach those remarks with considerable caution. Her experiences of the father, and his unrelentingly negative attitude towards her, are such that it would require superhuman objectivity to wholly overcome them. The mother does not have those qualities.

Section 60CC(3)(d)

There is no doubt that the outcome of this case will upset whichever parent feels they have not got what they wanted. If I were to order a change in [X]’s circumstances, the mother would be deeply distressed, and if I failed to do so, there is no doubt that that will be the case on the part of the father. His concern about the earlier decisions made, as reported to Dr O, shows that clearly he regards himself as being punished or penalised by the Court in the Court process. That is regrettable, but it of course does not derogate from the Court’s obligation to determine the matter according to the law.
The likely effect of the change of taking [X] from the primary care of his mother, with whom he lives all nights and most days, would be in my view, given his age and circumstances, generally extremely damaging. This is a child who already suffers from an unusually heightened degree of separation anxiety. Increasing the amount of time he is away from his mother is likely to be difficult for him.

Section 60CC(3)(e)

The practical difficulties of spending time with either parent that are relevant are limited. So far as I can see, the most significant practical problem will be that if I were to make the orders the father seeks, there would be the difficulties associated with the father having to work on Wednesdays, and the difficulties occasioned by his apparent absence from time-to-time, both overseas and interstate. These, however, would not of themselves be likely to be notable. I note them, but would not give them excessive weight.

Section 60CC(3)(f)

Each parent is capable of providing for the needs of the child, including emotional and intellectual needs, subject to the caveat that they both struggle to understand the difficulties between them create for [X].

Section 60CC(3)(g)

The child is too young for his lifestyle and background and sex to be of any great significance. So far as his maturity is concerned, I have already referred to his perhaps slightly excessive attachment difficulties. The difficulties of the parents have already been canvassed. Some aspects of the father’s behaviour are extremely troubling, although it should be noted, and I repeat, that he loves his child and is no risk to him. Likewise, the mother’s tendency to exaggerate and perhaps, on one view, her oversensitivity to the father does not inhibit her capacity to care for the child.

Section 60CC(3)(h)

This is not relevant.

Section 60CC(3)(i)

In the context of the findings already made, this subsection adds nothing.

Section 60CC(3)(j)

This is now of relatively historical significance. Such family violence as there has been in the past does not appear to have been directly replicated since the Court’s earlier decision. It is relevant, however, in informing the views the parents have of one another.

Section 60CC(3)(k)

This matter is not relevant.

Section 60CC(3)(l)

It is entirely desirable to make orders limiting the litigation in this matter, notwithstanding the young age of the child. The orders I propose to make are designed to limit litigation to the utmost extent practicable.

Section 60CC(3)(m)

There are no other relevant matters.

Conclusion

All of the above considerations and all of the materials in this case have to be considered as a whole in determining what is in [X]’s best interests. In my view, the proposals put by Dr O and supported by the mother are clearly, in the main, the orders that will best take [X] forward. The evidence of Dr O was not only convincing in itself, but is wholly consistent with the other evidence in the proceeding. It is plain that the regime she has proposed is the most that [X] can tolerate, at least in the immediate foreseeable future. It follows that the father’s proposal, which would meet the statutory definition of substantial and significant time, should be rejected.
I accept that overnight time should start in January 2013, as Dr O recommends, and should be for one night, on the Saturday night of each alternate week when time is spent by [X] with his father. The time will therefore extend from 9:00 am Saturday until 12:00 pm Sunday. This will give the father a full overnight and a morning with [X].
Dr O recommended a second overnight when [X] begins school, but unless I misunderstood the matter, that finding was predicated on the proposition that [X] would be starting school in 2014. In fact, because his birthday is in [date omitted], [X] will miss the cut-off and will not start school until 2015.
[X] will be six and a half years and a little more by then.
In the circumstances, I think [X] should commence to spend the second night envisaged by Dr O either from the beginning of 2014. This position accords with what I understood to be the gravamen of

Dr O’s evidence. These are not areas of precision in any event. I note that Dr O was of the view that it was the period from now till around about five or six that [X] was most at risk as a result of the conflict between his parents. Expanding time by another overnight in 2014, after a year of one night, is the best in the circumstances, I think I can do.
A further consideration, to which the parties paid limited attention for obvious reasons during this proceeding, is what is to happen when [X] does go to school, and the weekdays are no longer available for time spent.
I should make it clear that I think that the relationship between the two parents is so sundered that it is unlikely to improve in the foreseeable future, and as likely as not will never do so. With all the professional assistance they have received, the parties have made little, if any, progress in their interrelationship. On the part of the father in particular, I think his lack of insight is likely to ensure that this remains the case on an ongoing basis.
One practical issue that can be addressed is that of changeover, other than at the crèche or [organisation omitted]. Put simply, these parties interrelate so badly that changeover should take place only at those places. In other words, in the event that time is otherwise to be spent on a public holiday, that time should be postponed until the following relevant day or days where it is practicable to do so. Where it is not practicable, changeover will be at [Suburb A] Police Station, as it has been till now.
In this regard, I note the question of Easter this year. I am not prepared to order that [X] spend overnight time at Easter 2012 for the reasons already given. The father can spend time with [X] either on the Friday or the Saturday of Easter, at his election, whether that is the week during which he would ordinarily have such time or not.
So far as the position is concerned once [X] reaches school, he will by then be spending, one way or the other, Saturday and Sunday of each alternate week with his father. The time for return will be to school or crèche on Monday once it is a matter of two nights. [X] presently spends five days and no nights out of fourteen with his father. I will order that he spend each Wednesday from after school until the start of school the next morning with his father once he commences school. This will not exactly replicate the amount of time he spends with his father, and may well involve a diminution of absolute number or hours. On the other hand, given Dr O’s reservations, any greater regime would, in my view, be excessive.
I do not propose to make these as interim orders. I propose to conclude the matter finally. If the parties wish to return on the footing that there has been a material change in circumstances, then it remains open to them to do so. To make an interim decision which would necessarily put off a final outcome for yet a further year and a half or more is utterly undesirable.
What one would hope, however forlornly, is that by the time [X] goes to school and there is a significant change in his day-to-day routine, this matter will settle down, and the parties, as they ought to, will achieve some measure of resolution that enables them to deal with [X]’s affairs in the cooperative way that is in his best interests. They ought, by then, to be able to work out the future between them. This applies in particular to school holidays. I have granted liberty to apply in respect of disagreement about this aspect of the matter.
As I have already indicated, I have grave doubts that agreement will be the case. Nonetheless, I am giving them a template which is at least capable of working through until [X] turns 18. If either of them wishes to assert that things have really changed, then, of course, it is their privilege to return to Court to seek alteration of the orders.
I will give the parties an opportunity to consider these Reasons for Judgment and the draft orders I have prepared and will hear from them before making final orders.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 8 March 2012

ADDENDUM

On 8 March 2012, the matter was listed for the handing down of Reasons for Judgment and the finalisation of orders in this matter. Both parties were legally represented and following some discussion between the parties and with the bench final orders were pronounced.
On reviewing the file it has become apparent that neither party agitated before the Court the outstanding costs issue in respect of which both parties had filed written submissions. Given that this omission occurred purely by an error of all concerned I will deal with the matter by this addendum.
The trial on 7 March 2011 had to be aborted. At the time the father’s counsel informed the Court that the father was not well enough to continue, and although counsel is plainly not medically qualified it is clear from the father’s demeanour on the day that this was so.
The adjournment was caused for no other reason than the incapacity for the father to proceed.
Ordinarily, I would have been minded to make an order for the mother to have her costs of that adjournment but in this case there is one particular reason why I do not think it is appropriate to do so.
That is because the father’s income is only $20,000 per year. That is the figure he gave in his evidence and he was not pressed as to it in any significant way in cross-examination.
Given this particular circumstance and the fact that the wife earns a reasonable income, although the adjournment was plainly entirely the father’s fault it is inappropriate in the circumstances to exercise my discretion to make a costs order.