Withrow and Valente

[2019] FCCA 2898

FEDERAL CIRCUIT COURT OF AUSTRALIA

WITHROW & VALENTE [2019] FCCA 2898

Catchwords:
FAMILY LAW – Parenting – where parents have had equal time arrangement – where parents are unable to work out fundamental parenting arrangements – where child has strong bond with both parents – where the family report cites “high conflict parallel parenting” as a concern – best interests of the child – child to live with mother and spend time with father.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Applicant: MS WITHROW

Respondent: MR VALENTE

File Number: DNC 389 of 2018

Judgment of: Judge Young

Hearing dates: 11 and 12 September 2019

Date of Last Submission: 12 September 2019

Delivered at: Darwin

Delivered on: 12 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Darwin Family Law

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Romeo

Solicitors for the Independent Children’s Lawyer: Margaret Orwin Barrister & Solicitor

ORDERS

1. That the parents shall have equal shared parental responsibility for X ("the child”) born … 2014.

2. That the child shall live with the mother.

3. That unless otherwise agreed between the parties, the child shall spend time with the father during school term on a fortnightly basis from 5.30pm (or upon school finishing) on Thursday until 8.30am (or upon commencement of school) the following Tuesday, with the father’s time on a Thursday to commence Thursday 19 September.

4. Commencing 2021 the child shall spend time with each parent for half of all school holidays being as follows:

   (a)the first half with the father in odd-numbered years and the second half in even-numbered years; and

   (b)the first half with the mother in even-numbered years and the second half in odd-numbered years.

5. That the parents pay the costs of the Independent Children’s Lawyer as assessed by the Legal Aid Commission.

AND THE COURT ORDERS BY CONSENT

1. That until 2021 unless otherwise agreed:

   (a)The child shall spend school holidays on a week about basis with each parent unless the holiday is less than 2 weeks in which case the child shall spend equal time with each parent as follows:

   (i)With the father for the second half in odd numbered years and the first half in even numbered years.

   (ii)With the mother for the second half in even numbered years and the first half in odd numbered years.

   (b)In the 2019 school holidays and each odd year thereafter, the father may spend a block period of 14 days with the child during the Christmas school holidays, and take her away from Darwin over Christmas day (including 14 December to 29 December 2019). 

   (c)In the 2020 school holidays and each even year thereafter, the mother may spend a block period of 14 days with the child during the Christmas school holidays, and take her away from Darwin over Christmas day.

   (d)That unless otherwise agreed, should either parent wish to take the child away from Darwin during school holidays, they may do so for 2 periods each year of up to 14 days, upon giving the other parent at least 1 calendar months’ notice in writing, including destination and general itinerary, and further upon the child’s return the child shall spend block “catch up time” with the other parent.

2. For the purpose of school holidays at end of Terms 2, 3 and 4,  they commence on the last day of school  and finish on the day before school and for the holiday at end of Term 1, they commence on the last day of school with exchange on the following Wednesday with all changeovers at 6.30pm.

3. That unless otherwise agreed once the child commences full time school, the child shall not be taken away from Darwin on a holiday during term time unless otherwise agreed by both parties.

4. That unless otherwise agreed between the parties, the child shall attend Suburb A Preschool, and then undertake transition and primary school at the Suburb A primary school.

5. That communication by electronic means between the parties and the child shall be as agreed, but failing agreement:

   (a)During school term, when the child is in the care of the father, the mother may telephone the child at 5 pm on a Thursday, and during school holidays at 5 pm on Thursday and 5pm Sunday

   (b)The father may telephone the child at 5 pm on a Friday and 5 pm on a Sunday when she is in the care of the mother.

   (c)That the child may telephone either parent at any reasonable time.

6. That either party may take the child overseas or interstate consistent with these orders when the child is due to spend holiday time with them, provided that these orders are complied with, and provided that the child is not taken to a country in which the relevant Australian government authority advises potential travellers to “exercise a high degree of caution” or has an even higher level of warning.

7. That upon the child attaining the age of 6, the father may take the child to the UK every 3 years for a period of no more than 3 weeks on each occasion, upon giving the mother at least 2 calendar months’ notice, and provided that the time that the child is overseas does not conflict with the time that the child is scheduled to spend Christmas Day and the child’s birthday with the mother, and further the child shall have make up time with the mother on her return.

8. That the father may take the child to the UK in … 2020, and may take the child to Country E.

9. That should a medically prescribed medication or treatment be obtained by one party both parents shall follow and complete all relevant medical treatment and medical instructions including on labels of medication and further:

   (a)each party will request at any medical appointment for the child that the record be uploaded to  the child's eHealth record. 

   (b)each party will advise the other party via email or text message of the doctor's:

   (i)diagnosis

   (ii)prescription information

   (iii)treatment plan

   (iv)symptoms

   (v)follow-up care and future appointments.

10. That the child shall be exchanged at her school/childcare wherever practicable, but otherwise the party who is due to cease spending time with the child shall deliver her to the residence of the party who is due to commence spending time with the child on the condition that neither party nor their agents:

    (a)Criticise; abuse or intimidate the other or their agent; and

    (b)Raise an issue which is not directly relevant to handover.

11. That unless otherwise agreed between the parties, on occasions of special significance (“special days”) the child shall spend time with the parties as follows:

    (a)On the child's and the relevant parent’s birthday (…), and on any step-sibling birthday (…) or step-parent’s birthday (…), the child shall spend the following time with the parent who would not otherwise be scheduled to have the child in their care:

    (i)5 hours on a non-school day at times agreed between the parties but if no agreement between 1:00 pm and 6:00 pm;

    (ii)2.5 hours on a school day and at times agreed between the parties but if no agreement from after school for 2.5 hours;

    (b)The child will spend Father’s Day with the father from 5.00 pm the day before until commencement of school the following Monday.

    (c)The child will spend Mother’s Day with the mother from 5.00 pm the day before until 5.00 pm on Mother’s Day itself until commencement of school the following Monday.

    (d)In even years the child may spend time with the father from 2.00pm Easter Saturday to 2.00 pm Easter Sunday, and the child may spend time with the mother from 2.00 pm Easter Sunday to 2.00 pm Easter Monday.

    (e)In odd years the child may spend time with the mother from 2.00 pm Easter Saturday to 2.00 pm Easter Sunday, and the child may spend time with the father from 2.00 pm Easter Sunday to 2.00 pm Easter Monday.

    (f)That unless the child is interstate or overseas on Christmas day pursuant to these orders, Christmas shall be shared as follows:

    (i)In even years the child may spend time with the father from 2.00 pm Christmas Eve to 2.00 pm Christmas Day, and the child may spend time with the mother from 2.00 pm Christmas Day to 2.00 pm Boxing Day.

    (ii)In odd years the child may spend time with the mother from 2.00 pm Christmas Eve to 2.00 pm Christmas Day the child may spend time with the father from 2.00 pm Christmas Day to 2.00 pm Boxing Day.

12. That should either party seek to take the child interstate, overseas, or outside the outer Darwin region shall:

    (a)As soon as practicable but at least 28 days prior to departure they shall provide to the other party their full itinerary and details where the child shall be staying.

    (b)Send a text message to the other parent within two hours of arrival at their destination airport and within 2 hours of arrival back in Darwin.

13. That the parent who last took the child overseas shall retain the child’s passport, but shall promptly provide the other parent the child's passport upon the other parent booking overseas travel in compliance with these orders, and further should either party withhold the child’s passport in breach of these orders such that the other party is required to bring a court application, the breaching party shall pay the other parties costs on an indemnity basis and also meet the costs of any flights, insurance and accommodation that are lost.

14. That each party shall be entitled to attend any sporting or extracurricular activity or the like of the child.

15. That neither party shall engage the child in a significant new extracurricular activity without out engaging in genuine consultation with the other parent.

16. That both parties may enrol the child in one extracurricular activity each, and should the other party not be able to take the child to that activity when the child is in the care of the other party, the enrolling party may collect or arrange the collection of the child and take her to and from that activity, and further in addition the child shall attend swimming lessons and both parties shall made best endeavours to schedule the swimming lessons so that the father can attend the lessons when the child is in his care, and the mother can attend the lessons when the child is in her care.

17. That both parties shall advise the other of any medical attendance by the child, the reasons for the attendance and the doctor’s diagnosis and prescription.

18. That each parent shall immediately notify as soon as practicable the other of any serious illness or injury or any other emergency involving the child, when the child is in their care.

19. That should the child miss one or more days of school, the parent that has the child in their care shall email the other party on the day before handover and advise them including of the reasons.

20. That the other parent is to be advised of any pending specialist / major medical appointment as soon as practicable and no later than 4 hours after any such appointment is booked, and further both parents may attend the appointment.

21. That the parties will liaise closely in relation to any emergency or like situation that threatens or is likely to threaten (example cyclone). The party with whom the child is with is to inform the other party where they will be sheltering with the child within 2 hours of a cyclone warning or other threat being issued. 

22. That each parent be entitled to obtain directly from any school attended by the child or from any health, welfare or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child.

23. That both parties are authorised to obtain from X’s school all notices, letters, school reports and invitations and to attend parent teacher interviews and other activities to which the parties are invited.

24. That the child shall not have body piercing without the written consent of the other party, except as otherwise provided for by these orders.

25. That the child shall have each ear pierced once, by a body piercer professional, with the father to organise but to provide the mother with details at least 48 hours prior.

26. That each parent is to use their best endeavours to promote a positive image of the other parent to the child and refrain from denigrating the other parent either in person, on the phone or otherwise and further both parties shall speak respectfully towards each other within the hearing of the child, and further not to discuss spend time arrangements or the family law proceedings in the presence of hearing of the child, and further both parties shall make best endeavours to ensure that other family members also comply with this order.

27. That both parties shall correspond with each other by text message or email and further:

    (a)The parties shall not communicate excessively, noting that generally daily communication will not be required.

    (b)Such correspondence is to be related to parenting matters only and except in the case of emergency parties are restrained from issuing more than four correspondences each per day.

    (c)That both parties reply to emails and text messages from each other in a timely and respectful manner.

    (d)That neither party shall engage in intimidating or threatening behaviour.

28. That both parties shall only discuss with each other matters directly relevant to parenting, or the resolution of property matters.

29. And neither parent shall discuss or mention with the child financial or other issues that may be in dispute between the parties, and further both parties shall make best endeavours to ensure that other family members also comply with this order.

30. That the mother shall be responsible for day to day parenting issues when the child is in her care, and the father shall be responsible for day to day parenting issues when the child is in his care.

31. Each party is to inform the other of any change to their residential address, phone numbers or email addresses within 24 hours of such change.

32. That communication by electronic means between the child and the parties shall be by telephone, unless the child is overseas it shall be video / Skype / Viber  should one party so request, and should it be possible.

33. That the person who has the child in their care shall ensure the availability of a phone for the receipt of phone calls, and if overseas video / Skype / Viber or the like.

34. That neither parent is permitted to take the child to a counsellor, psychologist or other like professional unless agreed in writing and upon the recommendation from a medical professional or school teacher / principal.

35. That parties shall advise the other, should the child spend more than 48 hours from her usual place of residence.

36. That pursuant to section 65DA(2) 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.

AND THE COURT NOTES

A.That the parties have agreed to share the value of all sports and school vouchers equally.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 389 of 2018

MS WITHROW

Applicant

And

MR VALENTE

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case about X who is five years old. Her parents call her X. X’s mother and father separated in about August 2015 and for the bulk of the period since, if not the entirety of that period, the child has lived between the parents in an equal time arrangement and that is the arrangement that applies at the moment. The mother’s proposal in this parenting trial is that X live with her and spend four nights a fortnight with the father. The father’s proposal is that the current arrangement continue and the current equal time arrangement continue and that X’s school be changed from her present enrolment at Suburb A Primary School. 

3. The Independent Children’s Lawyer (“ICL”) has adopted the position recommended by the family consultant that X should live with her mother and spend five nights a fortnight with her father, with the exception however that instead of that five nights being broken up in two four nights in one week and one night in the other week, the five nights ought to occur in a block from Thursday after school to Tuesday before school.

4. The mother is employed as a public servant. She has re-partnered with Mr B who has as I understand two children of his own. The father has also re-partnered with Ms C who has a daughter who is 16 or 17 and who apparently lives sometimes with her and sometimes with her father. The father in this case is presently employed as a customer service officer in a business which is part owned by his partner, Ms C.

5. The father became a bankrupt on his own application in March 2018. He resigned his employment as a customer service officer in … 2018. He told me that he was earning $79,000 a year or thereabouts at the time of his resignation. He was therefore unemployed as I understand his evidence for a period of 2 July 2018 to 2 July 2019, perhaps coincidentally a financial year or a little bit more. There are also child support issues in this case that were addressed really in passing rather than centrally by the parties but it is significant and these need to be mentioned.

6. Following the father’s period of unemployment last financial year the effect of the formula used in a child support assessment meant that the mother was paying the father about $80 a week in child support. As I understand it, she challenged that and gave evidence, that was not contradicted, that she had challenged that assessment on the basis that the father was not utilising his earning capacity. The Child Support Agency, according to her, accepted her application and the assessment was revised. That further assessment is the subject of an existing application to the Administrative Appeals Tribunal.

7. I mention that because the parenting case in this court is not the only venue in which these parties are conducting a dispute. The parties have been unable to agree on major issues concerning this child, including medical care, where she is to go to school and what extra-curricular activities she should engage in. Those matters were the subject of an interim hearing before me last year which resulted in orders. The history, I am satisfied, is one of wide-ranging dispute between these parties about very important matters and about matters that are central to the welfare of this young child. The way the litigation was conducted in relation to the issue of which school X should attend was, in my view, revealing.

8. The father says that he is essentially unable to travel to Suburb A Primary School, which is the suburbs of Darwin, to collect the child. He says that he has no car and cannot afford to buy one. His partner, Ms C, who also gave evidence, said that she would not permit the use of her car, apparently a company car, for the purpose of the father collecting X from school or delivering her to school. Ms C’s reasons for that in my view were unconvincing and I am not satisfied that her evidence in that regard ought to be accepted. In fact, I reject it. The position of the father is that the child should go to school at Suburb F, particularly to G Primary School, which is about 20 kilometres away from the Darwin CBD.

1. The father said that at one point, and annexed to his trial affidavit an email to this effect, that his residence was in the G Primary School zone and that he had enrolled or wished to enrol X in G Primary School because he resided in that school zone. I am satisfied that that assertion is not true and that at all material times, including for the past 18 months, the father has lived with Ms C in Suburb D, which is an inner suburb of Darwin and in itself about 20 kilometres from Suburb F.

2. That leads me to the question of credibility. In my assessment the mother in her oral evidence was prepared to acknowledge that X has a strong relationship with her father and she had very little, if anything, to say critical of the father’s care of the child. She conceded that there were many good things about X spending time in the father’s household. She did not denigrate him as far as I recall from her evidence in any aspect other than to say he was difficult and uncompromising and she was finding it wearing. The father on the other hand, was consistently critical of the mother. He was critical of her integrity and he was critical of her parenting capacity.

3. The “Ms C” incident is also revealing. X calls Ms C “Ms C”. It is not in doubt that the mother, Ms Withrow, objected to that at an early point and she was unhappy that X would call Ms C, particularly as there appears to be a strained or non-existent relationship between Ms C and Ms Withrow, but nevertheless, X has continued, it would appear, to call Ms C, Ms C’s first name being Ms C. The father, who was self-represented, adduced evidence from Ms C that there had been an episode when soon after X had been speaking to her mother on the telephone or by Skype, X came to Ms C and said words to the effect, “I think I am in trouble. I will be in trouble when I get home. Mummy will smack me for calling you Ms C.” Ms C’s evidence about that was somewhat vague but the substance of it was that the child said she will be smacked “when she gets home”, using the future tense. Ms C later changed that or added to that when questioned by saying that on a preceding occasion the child had said that she had been smacked by her mother, using past tense.

4. I was not persuaded that I ought to accept Ms C’s evidence about that but it may be that something like that was said to the child. When the father cross-examined the mother about that allegation the mother, first, denied that she had ever smacked the child for calling Ms C and I accept the mother’s denials of that, and, secondly, when asked why the child might say such a thing Ms Withrow said that she thought that X was aware of this issue as a point of conflict and that X was probably saying what she thought the listener wanted to hear. She said in cross-examination that X had said something similar about the father’s household, that is, that she had been disciplined for not calling Ms C “Ms C”.

5. Ms Withrow said she did not accept that that had occurred. In other words, she is not a parent that accepts at face value everything a five year old child might say to her. I consider that that shows a degree of insight by Ms Withrow and I think it is to be contrasted with the way the father approached the issue, which was to lead evidence that was intended to be accepted literally by this court based on something a five year old child may or may not have said, leading the court to conclude that Ms Withrow, the mother, was so lacking in parenting capacity that she would exercise corporal punishment on a child for such a thing.

6. I do not accept that the father or Ms C were reliable witnesses. In oral evidence the father appeared to me to be belligerent and uncompromising. He used as many answers as possible to inject criticism of the mother into his evidence. I am also satisfied that his evidence about the reasons for being unable to attend Suburb A Primary School are untrue and that the real reason he is so strongly opposed to the child attending Suburb A Primary School is that he sees his dispute with the mother about this child as a zero sum game. In other words, any advantage that the mother receives is a corresponding disadvantage that he receives. Likewise, any advantage he receives is a corresponding disadvantage the mother receives.

7. In my view, the father’s partner, Ms C, reflected that attitude to some degree as well. As I said, I do not accept either of them as reliable witnesses. The willingness of the father in particular to give evidence that I consider was false illustrates to me the depth of his commitment to this dispute. I can see no reason why he would give what I conclude is false evidence about his ability or otherwise to go to Suburb A Primary School other than to ensure that the outcome he is opposed to is not one that the court accepts.

8. The family report made a number of observations, each of which I accept. At paragraph 32 the family consultant said:

   Essentially, the pervasive and problematic issue in this matter appears to be a toxic and conflictual parental relationship with the parents seeming to have adopted polarised positions about important day to day issues in relation to X’s care.

   At paragraph 36 she observed:

   Ms Withrow made no negative comments about Mr Valente as a parent, considering that he genuinely cared about and loved X and believing that X had a strong relationship with him. Likewise, Ms Withrow did not make any negative comments per se about X in Ms C’s care, saying she appreciated that Ms C appeared to genuinely care about X.

   At paragraph 62 the family consultant observed as follows:

   In response to Ms Withrow’s proposal to change X’s current living arrangements Mr Valente stated, “I won’t agree to her proposal. I do not abuse or mistreat X. Why have I not got the same rights?”

9. At other times Mr Valente has adopted the language of rights and, of course, in this jurisdiction the issue is not rights of parents, indeed, if such rights exist but the best interests of children. At paragraph 87 the family consultant says as follows:

   The writer engaged with X in an activity of drawing pictures on the whiteboard.  X drew two houses, identifying these houses as “Mummy and Mr B’s house…”

   I interpolate that “Mr B” is a reference to Ms Withrow’s, the mother’s, partner, Mr B and “Daddy and Ms C’s house.” is a reference to the father and Ms C’s household in Suburb D: 

   She said she had a lot of toys at Daddy’s house and a scooter and a brother and sister at her mother’s home. X identified both homes as “happy” homes. X identified her mother’s home as her “favourite” home and she consistently chose her mother’s home when presented with different scenarios, such as which house would you go to if you were feeling sad about something or where would you go if you fell over and hurt your knee?

10. At paragraphs 90, 91 and 92 the family consultant observed that X had a strong and affectionate relationship with both of her parents but the family consultant detected a different dynamic in each relationship. She concluded after giving examples that X’s responses to questions gave some indication that X identified more strongly with her mother as the primary attachment figure in whom she would tend to seek out if she felt vulnerable or distressed. The family consultant said, notwithstanding this, she had the impression that X felt safe and secure in each household. She identified her step-siblings as positive and significant figures in her life. The writer also said that she:

    ...gained the impression that X was not unhappy with the presence of her step-parents in her life and during the course of the family report interviews the writer observed X interacting with Ms C in what appeared to be a confident and affectionate manner.

11. At paragraphs 111 and 112 the family consultant referred to literature on child development and parental separation which emphasised the importance of the parents of children of X’s age group being able to effectively communicate and share information about day to day routines and issues such as health status and social and emotional functioning and implement similar routines across households. She said when this does not occur and the parents are in high conflict it is considered detrimental to the child’s well-being and their day to day sense of security. At paragraph 112 the family consultant said as follows:

    In this family it is apparent that the parents fall into the category of high conflict parallel parenting, which, at its worst, is divided care where a child knows that there are boundaries between their two worlds and where the two households can be operating quite differently in terms of rules, routines, boundaries […] something which some children can find particularly difficult to navigate and make sense of.

12. I pause there to say that I completely accept the observation in that paragraph. Given that this is what appears to be occurring in X’s family, it needs to be considered how her living arrangements may best mitigate the potential stressors of living between two hostile and distinctly separate households. Whilst it is not overtly apparent that X is experiencing the emotional and psychological issues that children often experience in these situations, it is my opinion that as X matures and gains greater cognitive capacity and emotional intelligence, her awareness of the bitter conflict between her parents will most likely increase. I am satisfied that this is a situation of high conflict where this child, if not now, at some later period will in all likelihood begin to experience her world as divided.

13. I am satisfied that the child is aware of the conflict at the moment and I am satisfied that the Ms C incident, which I have recounted, may be evidence that X is acutely aware of at least one area of conflict between her parents. I suspect she is more conscious of the conflict than each parent is aware.

14. The family consultant at paragraph 115 accepted that X feels secure with each parent, is strongly bonded to each parent and is not at any risk in the care of each parent. She accepted that each parent from their own perspective is seeking the best outcome for X and she went on to say:

    If these parents were able to agree about important matters in X’s life, were willing and able to communicate about routines across the households and the logistics of a shared care arrangement worked in X’s favour the writer would not be adverse to the proposition of an equal shared care arrangement for X. However, due to the apparent inability of the parents to agree about such issues as X’s extra-curricular activities, adopt a consistent and communicative approach to her health, inform one another about X attending activities such as swimming lessons or counselling and agree on one child care or school, there appears to be little evidence thus far to indicate that X is going to afforded the experience of a living arrangement that maximises and prioritises her needs.

    I accept that observation by the family consultant.

15. The family consultant went on to say at paragraph 116 that she has formed the view that X would benefit from residing in a primary home during her school week and spending regular and significant time with the non-primary parent. She said:

    Such an arrangement would better promote stability of routine for her, including attending weekly extra-curricular activities.

16. What, perhaps, is not said expressly, but, in my view, is implicit in the family consultant’s observations and views is her view that an equal shared care arrangement such as this in an area of high conflict where the parents are unable to agree about basic matters regarding this child’s welfare that an equal shared care arrangement is likely to be impractical in the long term and at worst result in psychological harm of the kind that she earlier described, that is, the divided world.

17. The family consultant went on to say that she was:

    …more inclined towards recommending that X live in her mother’s primary care for reasons including that she is still a young child who appears to still feel a strong primary bond to her mother. As well, Ms Withrow did not demonstrate discouragement of X’s relationship with Mr Valente and the writer did not gain a sense that she would attempt to interfere in X’s relationship with the father. Mr Valente, on the other hand, appeared quire resolute in his polarised opinion of Ms Withrow and his view that the only option in the future is to adopt a distinctly parallel parenting regime.

18. The validity of that observation was made very clear in Mr Valente’s evidence before me today and yesterday. I am satisfied that the observations of the family consultant were amply supported by the oral evidence in the trial.

19. The consideration of a parenting issue requires attention to the so-called legislative pathway, which is principally set out in sections 60CC and 65DAA of the Family Law Act.

20. Section 60CC sets out the criteria for assessing what is in the best interests of a child. Subsection 60CC (2) says the primary considerations are:

    a)The benefit to the child of having a meaningful relationship with both of the child’s parents and

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

    Fortunately, (b) is not an issue in this case. I am satisfied that the child will benefit from a meaningful relationship with both of the parents.

21. Additional considerations are set out in subsection 60CC (3). I do not propose to go through each of them but I have had regard in reaching my conclusions to each of them. 

    a)The views of the child have not been expressed but I think it is implicit in the family consultant’s observations that the child enjoys living in both households.

    b)The child has a very good relationship with each of her parents and apparently her parents’ partners.

    c)The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child.

    That is in some way the nub of the case because these parents have each sought to participate in long-term decision making but to the exclusion of the other in substance and I am satisfied that that is particularly true of the father’s attitude.

    (ca)The extent to which each of the child’s parent has fulfilled or failed to fulfil the parent’s obligations to maintain the child.

    That, as I have already indicated, was a passing issue in the case but I do not feel I have enough information to make any particular finding about that.

    d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child or relative.

    The orders I propose to make will not see a separation of the child from any other parent but will see a reduction in the degree of time the child spends with the father.

    e)The practical difficulty and expense of a child spending time and communicating with a parent is not, in my view, really an issue in this case.

    f)The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.

    I have no doubt both parents are perfectly capable of looking after the physical needs of the child. In some ways the nub of this case has been about their inability to agree about fundamental issues concerning the child and the likely effect on the child of that inability to reach any agreement, compromise or to co-parent. I have already said that I consider I am satisfied that the father’s attitude is generally uncompromising and indeed at times belligerent. I did not have the impression that the mother was so uncompromising or belligerent. On the contrary, I was satisfied that she was prepared to not only acknowledge but support the role of the father in the child’s life.

    h) is not relevant.

    i) I think I won’t say any more about that. I think it is related to (f), which I have already made comments about.

    j) is not relevant at this stage as far as I know or (k), (l) or (m).

22. As the parties have reached significant agreement about matters other than the central time issue and have agreed on an order for equal shared parental responsibility, I am required to have regard to section 65DAA of the Act and consider whether the child should spend equal time or substantial and significant time with each parent. I am satisfied that it is not in the best interests of the child that she spend equal time with each of the parents and I accept the recommendations of the family consultant for the reasons she gave.

23. I should also say, while I am satisfied that it is not in the best interests of the child that there be equal time I am also satisfied that it is not reasonably practicable because I am satisfied that the parents do not have the capacity to implement such an arrangement and do not have the ability to effectively communicate in a way that would support the success of such an arrangement.

24. I am satisfied that spending substantial and significant time with each of the parents is in the best interests of the child and I am satisfied that the orders that I propose to make, that is that the child spend five nights with the father in a block, are reasonably practicable. There will also be orders for school holiday time, which will be week about during the holidays until the child reaches the age of seven in 2021.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:     10 October 2019