Zimin and Hoy - [2012] FMCAfam 1141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZIMIN & HOY

[2012] FMCAfam 1141

FAMILY LAW – Parenting – issues as to parental responsibility, living arrangements for the parties’ four year old son and where the child is to attend school in 2013 – orders made for equal shared parental responsibility save for the mother to have sole parental responsibility for medical issues, child to live with the mother and spend six nights in a fortnight with the father and to attend the school nominated by the mother unless prior agreement between the parties has been reached.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant:

MR ZIMIN

Respondent:

MS HOY

File Number:

MLC 3661 of 2011

Judgment of:

Bender FM

Hearing dates:

3 & 4 October 2012

Date of Last Submission:

4 October 2012

Delivered at:

Melbourne

Delivered on:

5 October 2012

REPRESENTATION

Counsel for the Applicant:

Mr Lovering

Solicitors for the Applicant:

Altona Legal

Counsel for the Respondent:

Ms Whitelaw

Solicitors for the Respondent:

MacGregor Solicitors

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child

[X] born [in] 2008 (“[X]”) save and except the mother shall have the sole responsibility in relation to the decisions relating to [X]’s medical treatment.
Upon the mother making any decisions relating to [X]’s medical treatment she shall advise the father of such decision including the names and contact details of the treating medical practitioner and shall authorise such treating medical practitioner to speak to the father.
[X] live with the mother.
[X] spend time and communicate with the father as follows:
(a)from after kindergarten/school Friday to before kindergarten/school on Wednesday or 5.30pm if [X] is not at school in week one;
(b)from after kindergarten/school Tuesday to before school Wednesday or 5.30pm Wednesday if [X] is not in school in week two;
(c)for one half of the school term holidays as agreed between the parties and failing agreement the first half;
(d)for half of the long summer holidays by agreement between the parties and failing agreement the first half subject to the orders as to Christmas arrangements;
(e)from 3.00pm Christmas Day 2012 to 3.00pm Boxing Day and each alternate year thereafter;
(f)from 3.00pm Christmas Eve 2013 to 3.00pm Christmas Day 2013 and each alternate year thereafter;
(g)in the event Father’s Day falls on a day when [X] is with the mother, from 9.00am to 5.00pm Father’s Day;
(h)in the event the father’s birthday falls on a day when [X] is with the mother, for a period of two hours as agreed between the parties;
(i)in the event [X]’s birthday falls on a day [X] is with the mother, for a period of four hours as agreed between the parties and failing agreement from 1.00pm to 5.00pm; and
(j)as otherwise agreed between the parties.
[X]’s time with the father pursuant to these orders be suspended as follows:
(a)as to the father’s time pursuant to order 5 (a) and (b) herein, during all school holidays and such time shall recommence as if the school holidays had not intervened;
(b)for one half of the school term holidays by agreement and failing agreement, the second half;
(c)for one half of the long summer holidays by agreement and failing agreement, the second half;
(d)from 3.00pm Christmas Eve 2012 to 3.00pm Christmas Day 2012 and each alternate year thereafter;
(e)from 3.00pm Christmas Day 2013 to 3.00pm Boxing Day 2013 and each alternate year thereafter;
(f)in the event [X] is with the father on Mother’s Day, from 9.00am to 5.00pm Mother’s Day;
(g)in the event the mother’s birthday falls on a day [X] is with the father, for a period of two hours as agreed between the parties; and
(h)in the event [X]’s birthday falls when [X] is with the father, for a period of four hours as agreed between the parties and failing agreement from 1.00pm to 5.00pm.

Changeover for [X]’s time with the parties which does not take place at kindergarten or school shall take place with the parent with whom [X] has been living delivering him to the house of the other parent.
The parties shall do all things necessary to cause [X] to be enrolled to commence his schooling in 2013 at either of [M] School or [C] School as is agreed between the parties and, if the parties are unable to agree, at such of [M] School or [C] School as nominated by the mother.
The father be permitted to attend all school events relating to [X] normally attended by parents and receive at his expense all school reports, school photograph order forms and newsletters.
Both parties and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of [X], and from permitting any other person to do so.
Each party shall advise the other of any serious illness or injury suffered by [X] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party keep the other informed at all times of their current residential address and contact telephone number.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 3661 of 2011

MR ZIMIN

Applicant

And

MS HOY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This matter relates to the parenting orders to be made for the parties’ four year old son, [X], born [in] 2008 (“[X]”).
The father is seeking orders that [X] live with each of his parents on a week-about basis from Friday to Friday. The father also seeks orders that the parties have equal shared parental responsibility for [X] and that when [X] starts school in 2013, he attend [B] School in [A].

The mother seeks orders that [X] live with her and spend time with the father pursuant to the current arrangements that are in place, being from Friday to Wednesday in week one and overnight Tuesday in week two, for the balance of 2012. The mother proposes that when [X] starts school in 2013, [X] spend time with the father from after school Friday to before school Tuesday in week one and overnight on a weeknight that suits the father’s work commitments in week two.
The mother is also seeking orders that the parties have equal shared parental responsibility for [X], save in relation to medical matters, which are to be the mother’s sole responsibility.
The mother seeks an order that [X] attend either of [M] School or [C] School in 2013.
The parties are in agreement as to the time [X] is to spend with each of them for holidays and special occasions.

Background

By way of background, the father was born [in] 1982 and is 30 years of age. The father is a self-employed [omitted] and has not

re-partnered.
The mother was born [in] 1982 and is 29 years of age. The mother is a [occupation omitted] but is currently engaged in home duties. The mother has re-partnered and recently commenced living with her fiancé, Mr R, in [M].
The parties commenced cohabitation in 2006. The parties initially separated in August 2005, but reconciled shortly before [X]’s birth. The parties finally separated in June 2008.
After separation, [X] remained living with the mother and spent time with the father.

It is the father’s evidence that immediately after separation, the father spent every second night with the mother and [X] at the mother’s residence. It is the father’s evidence that from [X]’s first birthday, [X] spent three nights with the father each week, being Wednesday, Friday and Saturday or Wednesday, Saturday and Sunday.
It is the father’s evidence that between February and April 2011, the parties agreed to a week-about living arrangement for [X].
It is the mother’s evidence that after separation the father’s time with [X] was inconsistent and very much dictated by when the father wished to attend.
It is the mother’s evidence that the father was often aggressive and abusive towards her and that the mother felt pressured to agree to the father’s requests for time with [X], including the period between February and April 2011, when a week-about arrangement was put in place.
It is the mother’s evidence that there was an incident in or around Christmas 2010 when the father kicked in the door of the mother’s home, grabbed [X] from the bath and threw the mother against the wall.
As a result of this incident the mother obtained an intervention order against the father in April 2011. At that time all time between [X] and the father ceased.
The father commenced these proceedings in May 2011. The matter came before the Court on 8 June 2011 and interim orders were made by consent, which provided that the parties have equal shared parental responsibility for [X], that [X] live with the mother and that [X] spend time with his father on a gradually increasing basis, culminating in 2012 with [X] spending time with his father in week one from 4.00pm Friday to 4.00pm Tuesday, from 4.00pm to 7.00pm each Wednesday and from 10.30am to 2.00pm each Tuesday in week two.

In September 2012, by agreement between the parties and in accordance with [X]’s request to spend more time with the father, [X]’s time with his father was increased from Friday to Wednesday in week one and overnight Tuesdays in week two
This matter was initially listed for final hearing on 8 February 2012. On that date, the father’s Counsel was given leave to withdraw and the matter was adjourned to 3 October 2012.
In early August 2012, the mother moved from her rental accommodation in [S] to the property owned by the mother’s partner, Mr R, in [M]. Prior to the mother’s move, [X] was attending childcare in [S] on a Wednesday and the father would return [X] to the childcare centre each Wednesday morning at the conclusion of the father’s time with [X].
When the mother moved to [M], [X] ceased attending the childcare centre in [S]. The parties agreed that they have been unable to put in place a regular arrangement for [X]’s return to the mother’s care on Wednesdays and that this has caused considerable tension between the parties.
There was and is also considerable tension between the parties in relation to [X]’s medical treatment. The mother wished for [X] to be immunised and this was, at least initially, strongly opposed by the father. The mother arranged for [X] to be immunised without the father’s knowledge or consent, which caused ongoing conflict between the parties.
[X] has rather large tonsils which the mother indicates is causing sleep apnoea. It is the mother’s evidence that she took [X] to a specialist who has recommended that [X] have his tonsils removed. The father does not accept this intervention is needed.
Accordingly, the question of which of the parties should have responsibility for decisions for [X]’s medical treatment and interventions is very much an issue between the parties.

The father has ‘researched’ and visited many schools in the area proximate to the father’s home in [omitted] and has identified

[B] School in [A] as the father’s preferred choice of school for [X].
The mother has similarly ‘researched’ schools for [X] and has determined that she wishes [X] to attend a school local to where the mother now lives in [M] and believes either of [M] School or [C] School are best suited to meeting [X]’s needs.
Thus, the school that [X] is to attend in 2013 is also very much a live issue between the parties.

The Evidence

The father

As set out previously, the father is seeking orders that [X] live with each of his parents on a week-about basis with changeover each Friday afternoon. The father also seeks orders for equal shared parental responsibility and that [X] attend [B] School in [A].
It is the father’s evidence that he believes that [X]’s best interests are met by the father and the mother having equal shared parental responsibility and equal time with [X].
It is the father’s evidence that he has wanted to put in place arrangements for [X] to spend equal time with each of he and the mother for a very long time. The father believes an equal time arrangement is the best arrangement for a child when their parents are separated as it ensures that the child has the benefit of both their mother and father.
The father raised concerns about the mother’s lack of a stable home. The mother has moved six times since [X] was born, whilst the father has lived in his current home since separation.
The father also raised concerns about the mother’s new relationship with Mr R. It is the father’s evidence that he has only recently become aware of the mother’s relationship with Mr R and that the mother and [X] were moving in with Mr R in [M] in August of this year.
In the father’s trial affidavit, filed 2 October 2012, the father refers to Mr R being a ‘bikie’ with connections to an outlaw gang of cyclists, of concerns of violence in the relationship between the mother and

Mr R and to the father not knowing anything of the quality of Mr R’s home in [M].
Under cross-examination, the father conceded his allegations in relation to Mr R being a bikie is based on a photo of Mr R shown to the father by a friend on a Facebook page that shows Mr R with a motorbike. The father further concedes that both the mother and

Mr R had invited the father to their [M] home and to meet with Mr R, but the father had declined the offer, indicating there would be time for such a meeting “after this Court case”.
In relation to medical issues, the father concedes that he was initially opposed to [X] being immunised as the father comes from a family which are opposed to immunisation. Neither the father or his siblings have ever been immunised. It is the father’s evidence that in the last 12 months he has researched immunisation on the internet and is now of the view that it is necessary to protect children. It is the father’s evidence that he is therefore no longer opposed to immunisation.
The father agrees that he has not told the mother of this change of attitude in relation to immunisation and that such change was not contained in any of the affidavit material that had been filed by him in these proceedings.

In relation to [X]’s tonsils, the father indicates that, when the mother told him that [X] needed to have [X]’s tonsils out, the father had responded by saying that [X] was perfectly healthy and that:
“You will not cut anything out of my son”.
The father indicates the mother had advised him of the details of the specialist the mother had taken [X] to see in relation to his tonsils, but that he had not as yet seen [X]. The father indicated he intended to visit [X]’s specialist in the future.
The father agrees that [X] has large tonsils and that [X] snores. It is the father’s evidence that the first he has heard that [X] suffered from sleep apnoea was in the mother’s affidavit.
In relation to [X]’s schooling, it is the father’s evidence that he believes [B] School is the school best suited for [X]. It is a school that caters for students from prep to year nine. The school has small class sizes, it is a new school with quality facilities and the moderate numbers mean that [X] would not be lost.
The father indicates that there have been real difficulties between he and the mother being able to put in place arrangements for Wednesday changeovers for [X] since [X] stopped attending at the day care centre in [S]. The father confirms that whilst he and the mother have had many calls to try and put arrangements in place, there had been changes of plans, many misunderstandings and that changeover arrangements had varied from Wednesday to Wednesday.
The father is of the view it is preferable to have orders setting out the time and place of changeover, especially until such time as [X] starts school.

The mother

As noted previously, the mother seeks orders that the existing arrangements for [X] continue until school next year, when she proposes that there be a one day reduction in the block of time [X] spends with the father.
It is the mother’s evidence that [X] loves both his mother and father.
It is the mother’s evidence that she finds communication with the father very difficult. The mother describes the father as demanding and uncompromising and states that the father will not acknowledge or take the mother’s views or opinions on board. It is the mother’s evidence that arrangements for [X] must accord with the father’s views and wishes. The mother describes giving in to the father’s demands in relation to arrangements for [X], often against the mother’s own wishes, in order to avoid conflict and harassment.
The mother’s evidence is that the parents’ communication has worsened in the last three months, especially in relation to the Wednesday changeovers. It is the mother’s evidence that [X] has been exposed to the parties’ arguments as to these arrangements and that [X] has been upset by this and as a result exhibits separation anxiety when leaving the mother.
The mother does not accept the father’s evidence that he now approves of immunisation and the use of antibiotics. It is the mother’s evidence that when the father discovered [X] had been immunised earlier this year, the father was very angry and has continued to harangue her on this issue to this day.
It is the mother’s evidence that when she told the father [X] needed his tonsils out, the father flatly rejected that this was necessary.
It is the mother’s evidence that she and Mr R have known each other since childhood. Their romantic relationship started last year and became more serious this year. It is the mother’s evidence that Mr R was introduced to [X] about four months ago, when it was apparent that theirs was an ongoing relationship. The mother and Mr R decided to live together in July of this year, and the mother and [X] moved into Mr R’s home in August of this year. The mother and

Mr R are engaged to be married and intend to continue to reside in [M] in Mr R’s home.

It is the mother’s evidence that she has visited [B] School. The mother is of the view the school would not be the best fit for [X]. The mother believes it is more of a ‘Steiner style’ school and that [X] will be better suited to a school with more structure. The mother describes [X] as a boy who needs discipline and believes [X] will be better placed in a more mainstream school.
The mother also gave evidence that she wants [X] to attend a school in [M] where [X] lives. It is the mother’s evidence that she, Mr R and [X] have friends and family in the [M] area, and [X] will be able to solidify his friendship groups.
The mother is of the view that when [X] starts school, his time with the father should be cut back by one night. This will allow [X] more time in [M] where he will be settling into school and establishing his friendship groups. It will also reduce the amount of travel [X] will be required to take between the father’s home and school. It is the mother’s evidence that such an arrangement would ensure [X] does not get too tired, especially as [X] adjusts to the demanding routines of school life.

Ms E

Ms E is a Regulation 7 Family Consultant. Ms E prepared a Family Report dated 3 January 2012 and gave viva voce evidence at the final hearing of this matter.
In her Report, which Ms E concedes is now somewhat out of date,

Ms E recommended a continuation of [X]’s then living arrangements, that being living with the mother and spending six nights each fortnight with the father. Ms E also recommended that the mother be responsible for making the decisions about [X]’s medical treatment.

Ms E was given the opportunity to read both parties’ trial affidavits. Having done so, Ms E made the observation that the parties had a much more generous view of each other when she saw them in December 2011 for the purposes of the Report than was indicated by the contents of their trial affidavits.
The parties’ respective proposals for [X]’s living arrangements were put to Ms E.
It is Ms E’s evidence that, for an equal time seven-day block agreement to be successful, both parents need to be getting on well and to be able to communicate. Ms E describes parents in that circumstance as having to be united in their approach to parenting and having to be able to be flexible and negotiate the small and large matters that arise in such an arrangement.
It is Ms E’s evidence that if the parents did not have that cooperative united parenting relationship, there is a real danger that a child would be psychologically split. Ms E explains ‘splitting’ as the child behaving one way with one parent and behaving one way with the other. It is Ms E’s evidence that this is very unhealthy for the child.
It is Ms E’s clear evidence that if the Court was of the view that [X]’s parents had a conflicted relationship, then an equal time living arrangement as proposed by the father would not be in [X]’s best interests and Ms E would not recommend it.
In relation to the mother’s proposal that there be a reduction in time when [X] starts school from six nights per fortnight to five, it is

Ms E’s evidence that once [X] had adjusted to his school routine, such a reduction would make little difference to [X]’s ability to settle happily in school.
It is Ms E’s evidence that given the parties’ agreement that [X] is happy in his current living regime, she would support a continuation of the current eight-six agreement. It is Ms E’s evidence that a continuation of this arrangement would enable the father to be much more actively involved in [X]’s school which would in turn be a real positive for [X].
Ms E notes that when she interviewed the father he was very much supportive of alternative medicine for assisting [X] with his health issues and that the father told Ms E of his opposition to immunisation.
It is Ms E’s evidence that she maintains her recommendation that the mother have responsibility for decisions in relation to [X]’s health and medical treatment into the future.
In relation to [X]’s schooling Ms E made the observation [X] would be better placed at a school near his place of primary residence.

The Law

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Presumption of equal shared responsibility

In this matter the parties agree that there should be equal shared parental responsibility, save as to the question of who will make the decisions about the medical treatment for [X].
Section 61DA of the Act makes reference to there being a presumption that it is in the best interests of a child that the parents have equal shared parental responsibility, though that presumption is rebutted if there has been family violence or it is not in the best interests of the children. Section 61DA of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.

3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

It is apparent from the parties’ evidence that they have had differing views in relation to medical interventions for [X].
The mother wished to have [X] inoculated and the father strongly opposed this. Ultimately, the mother arranged for [X] to be inoculated without the father’s knowledge. This, I am satisfied, angered the father and is a source of conflict between the parties.
Whilst the father gives evidence that he now supports a child being inoculated or immunised, I am not convinced as to the genuineness of the father’s recent conversion in this regard. It is the father’s evidence that he had been researching this issue on the internet last year. However, when the father spoke to Ms E in December 2011, the father told Ms E he opposed immunisation. When the father found [X] had been immunised earlier this year I accept the mother’s evidence that the father was very angry and has been arguing with the mother’s decision in this regard ever since.

It is the mother’s evidence that [X] needs to have his large tonsils removed as they are causing sleep apnoea and [X]’s treating specialist has recommended this intervention. The father is not accepting of this recommendation and has taken [X] to other medical practitioners for a second opinion. It is the father’s evidence that these alternate practitioners have indicated that such intervention is not needed for [X], though the father provided no independent evidence from these practitioners to the Court.
It is unclear whether the father told the mother he was taking [X] to obtain a second opinion. It is also apparent that the father did not tell the alternative medical practitioners of [X]’s snoring or [X]’s possible sleep apnoea.
I have no doubt that both parties only want what they think is best for their much loved son.
However, it is apparent that the parties have quite differing views on the medical interventions necessary for [X]. It cannot be in [X]’s best interests that when a decision is needed as to the best medical intervention required for [X] that his parents will have difficulty in reaching agreement as to that intervention, given the serious ramifications for [X] in the event that decision is delayed or unable to be resolved.
It is the recommendation of Family Report Writer Ms E, having spoken to the parties at length and heard the father’s view on health issues, that medical matters should be determined by the mother.
I am satisfied that the parties’ different views on [X]’s medical requirements are such that there could be circumstances where their inability to agree could place [X]’s health at risk.
I am therefore satisfied in relation to medical matters that one of [X]’s parents should be empowered by an order of this Court to make the final decision as to [X]’s health and medical issues. I believe that it is the mother who is best placed to make that decision.

Accordingly, orders will be made for the parties to have equal shared parental responsibility for [X], save that the mother shall have sole responsibility for making the decisions in relation to [X]’s health and medical issues.
The orders shall provide that the mother shall advise the father of all decisions made by her in relation to [X]’s medical interventions and she shall authorise all [X]’s medical practitioners to speak with the father.
Whilst the order for equal shared parental responsibility shall require the parties to consult in relation to [X]’s education, it is clear from the parties’ evidence that they have not been able to agree where [X] is to commence school in 2013. This is most unfortunate. [X] needs to be enrolled shortly as [X] will want to know where he will be at school next year. This will enable [X] to start getting ready for this next big step in his development.
As [X]’s parents have not been able to agree on this important matter, the decision has fallen to me in this instance.
Where the parents have equal joint parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)         the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
As noted previously in this judgment, the father seeks orders for equal time, whilst the mother proposes [X] spend substantial and significant time with his father.
When determining what living arrangements to be put in place for a child, the Act is clear that the order the Court makes must be in the best interests of the child. In order to determine what is in the child’s best interests the Court must consider the matters set out in section 60CC(2) and (3) of the Act.
Each of the matters set out in subsections (2) and (3) of section 60CC of the Act, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals and a decision made as to which of those proposals or such other proposal as the Court determines is in the best interests of the child.
The Court is not bound by the parties’ proposals as to the child’s living arrangements. The Court may make such other orders as it determines are in the child’s best interest.
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

[X] has a close and loving relationship with both his mother and his father.
Both parties report that [X] loves them and that [X] loves the other parent.
Both parties agree that [X] is thriving in the current living arrangements that are in place for him and that he is a happy, smart and delightful little boy.

The recent increasing acrimony to which [X] has been exposed because of the parents’ inability to put in place sensible changeover arrangements each Wednesday will impact on [X]’s relationship with each of his parents and it is vitally important that [X] be sheltered from this conflict.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

I am satisfied that there is no concern in relation to [X]’s care when he is with either of his parents.

Section 60CC(3)

Section 60CC subsection (3) of the Act sets out the additional considerations to be taken into account when determining what is in the child’s best interest. Each of these will be considered in turn where relevant.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Given [X]’s young age, his views as to his living arrangements have not been sought.
However, the Court notes the parties’ evidence that [X] is very happy and is thriving within the existing living arrangements.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

As noted, [X] has a close and loving relationship with both of his parents.
It is also apparent from the parties’ evidence that [X] has a close and loving relationship with his extended maternal and paternal families, including his grandparents, aunts, uncles and cousins, and that when with each of his parents [X] spends lots of time with his extended family and will continue to do so.
[X] is in the process of developing a relationship with his mother’s partner, Mr R. Sensibly, the mother only introduced [X] to Mr R when the mother and Mr R had determined theirs was a committed relationship. I am comfortable that [X] and Mr R’s relationship will continue to grow with time.

Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the Court must also take into account

subsection 60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Despite the tensions at times in the parental relationship since separation, the parties have ensured that [X] has been able to develop the close and loving relationship he has with each of his parents.
In September 2011, after interim orders were made for [X]’s living arrangements, the parties agreed to alter those arrangements because [X] had indicated he wanted to spend more time with the father.
To their credit, the parties have also been able to agree to holiday and special occasion arrangements between themselves.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

[X] and his mother have recently moved from [S] to [M]. This is a little further from father’s home, but as both suburbs are on the western side of Melbourne and linked through appropriate road networks, this is not an insurmountable problem.
The major change for [X], I suggest, will be when [X] commences school in 2013. Both of [X]’s parents will need to ensure that they guard against him becoming too tired as [X] adjusts to this new world.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The parties live in reasonable geographical proximity to each other, such that this should not be an insurmountable problem.
Since the mother moved to [M], [X] has continued at his kindergarten in [suburb omitted] without issue.
The ‘practical’ issue that has arisen since the mother has moved to [M], and the consequent removal of [X] from childcare in

[S] on a Wednesday, has been the parties’ inability to put in place an agreed arrangement for Wednesday changeover. This has caused uncertainty and conflict for the parties and for [X].
It is apparent that the Court will need to put in place a definite arrangement for changeovers which do not occur at kindergarten or school.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

I am satisfied that each of the parties can provide for [X]’s emotional and intellectual needs. [X] is described as a smart, happy and delightful young boy meeting all his developmental milestones.
It is incumbent on [X]’s parents to continue to meet [X]’s needs and, most importantly, limit [X]’s exposure to any conflict and acrimony between them.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

This section is not relevant

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or
Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

This section is not relevant.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I am satisfied that both parties are committed, caring and loving parents to [X].
Whilst both were critical of the other in their recently filed trial affidavits, these criticisms seem to me to relate more to adult issues and the conflict in their relationship, rather than any overt criticisms of their respective care of [X] when he is with them.

It is apparent these parties are very different. The parties only had a very short relationship and this relationship was punctuated by separations and conflict. Were it not for [X]’s arrival, might I suggest, it is unlikely the parties would have continued to associate with each other after separation in 2007. This has caused some real problems at times in the parties’ ability to co-parent [X] and I might suggest that both would benefit from a post-separation parenting course. I note that the father has undertaken such a course.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

The mother alleges that after separation the father broke into the mother’s home, against her will, in order to take [X] and that on one occasion the father pushed the mother into the wall. The father denies there was ever family violence. The mother sought an intervention order against the father in 2011 and the father sought an intervention order against the mother. The parties resolved this matter by way of mutual undertakings in June 2011.
Neither party reports issues between them of this type since early 2011. Clearly any behaviour of the type described is unacceptable.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

Wherever possible the Court strives to make orders which will finalise the parties’ involvement in litigation about their child’s living arrangements.
It has been the father’s long standing belief that equal shared care is the most appropriate living arrangement for [X].
The father has pursued his desire for equal time for many years and, might it be suggested, that even when such an arrangement is not recommended by the independent expert.
It can only be hoped that the father will accept the determination of this Court as to what is in [X]’s best interests.
The Court is, however, encouraged that despite the parties’ at times difficult relationship, they have generally been able to take on board [X]’s needs and put in place arrangements by agreement that meets those needs and wishes.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

It is very pleasing to note the parties were able to reach agreement in relation to holiday arrangements and the arrangements for special occasions such as Christmas, birthdays, Father’s Day, Mother’s Day and the like.

Conclusion

The parties in this matter had a short, volatile relationship and separated shortly after the birth of their now four and a half year old son, [X].
After separation, [X] remained living with the mother and spent regular time with the father, albeit the parties have different views as to how this time was arranged, with the father indicating a cooperative agreement and the mother indicating she was bullied and pressured into arrangements by the father.
However it came about initially, [X] has spent regular time with the father and, as such, [X] has developed a close and loving relationship with both his parents.
[X]’s time with his father stopped in April 2011, after the mother obtained an interim intervention order against the father.
The father commenced these proceedings in May 2011. Orders were made in June 2011, which provided for [X] to live with the mother and spend increasing time with his father. In September 2011, the parties agreed to depart from the interim orders made in June 2011 and put in place arrangements whereby [X] spends six nights in each fortnight with his father, a block of five days from Friday to Wednesday in week one and overnight Tuesday in week two.
It is common ground between the parties that the father has wanted to put in place an equal time living arrangement for [X] for a long time. The father seeks that this Court make orders in those terms today.
The mother does not believe that an equal time arrangement would be in [X]’s best interests and seeks orders that the existing arrangements continue until next year when [X] starts school, at which time the mother seeks the block time [X] has with his father in week one be reduced by one night, given the adjustment that [X] will have to make to full time schooling.
It is Ms E’s clear evidence that a shared care arrangement is not in the child’s best interests if his or her parents do not have a cooperative relationship, an ability to communicate well with each other, a united approach to their parenting and an ability to easily negotiate the myriad of day to day matters a shared care arrangement requires.
It is very clear to me that the parties in these proceedings do not have the cooperative parenting relationship described by Ms E as being necessary to enable a shared care living arrangement to work for [X]. This is perhaps best illustrated by the parties’ inability to put in a place a consistent arrangement for Wednesday changeovers in recent times. This has instead become a battleground between the parties where each blames the other for the impasse. If the parties are unable to agree on this simple adjustment, the Court can have no confidence that the parties would be able to negotiate, as Ms E put it, the myriad of day to day matters a shared care regime requires, especially once [X] is at school.
I am therefore of the view that an order as sought by the father is not in [X]’s best interests.
Nor am I satisfied, however, that there is a need for reduction in the time that [X] spends with his father once [X] commences school. Both parents agree [X] is very happy and is thriving with the current arrangements that are in place for his care. There is no reason to believe that this will not continue when [X] starts school.
Accordingly, the Court’s orders will be for the current arrangements to continue, save that specific orders will be made for changeover that is not at kindergarten or school, to ensure the current conflict that [X] has been exposed to, to his detriment, is resolved.
As set out previously in this judgment, orders will be made for the parties to have equal shared parental responsibility for [X], save the mother shall have sole responsibility for decisions in relation to [X]’s medical needs. The reasons for this are clearly enumerated in this judgment and will not be repeated again here.
This leaves the final outstanding issue between the parties, which is what school [X] is to attend next year, given the parties are unable to agree to this between themselves.
The father, having researched schools local to him, is of the view that [B] School in [A] is the school best suited to meet [X]’s educational needs. The father is attracted to [B] School as it provides for prep to year nine school, and it is a smaller school with new facilities.
The mother wants [X] to attend either at [M] School or [C] School, which are in South [M]. The mother is of the view that [X] will be better placed in a school close to his primary place of residence where he has friends and family and where those friends attend those schools. The mother has visited [B] School and is of the view its philosophy, which the mother describes as being ‘Steiner like’, would not suit [X], who the mother believes would be better suited to a mainstream school with more structure and discipline.
I am of the view that it would be in [X]’s best interest for [X] to attend a school close to his principal place of residence. This will enable [X] to more easily associate with his friends after school and to be a part of his local community.
Accordingly, orders will be made for [X] to attend either at

[M] School or [C] School. Hopefully each parent will now visit both those schools and agree on which of those [X] is to attend. If the parties are unable to agree as to which of those schools [X] is to attend, [X] will attend the school as nominated by the mother.
It is most unfortunate for this much loved little boy that his parents, both of whom he loves dearly, are currently embroiled in a level of nastiness and, at times, pettiness that perhaps this current litigation has exacerbated.
Both parents seem intent on point scoring, one against the other and what stood out to me during the evidence each gave was how each referred to [X] as “my son”, as if each of them somehow owned [X]. The parties do not own [X]. [X] is ‘their’ son and the parties have an obligation to [X] to understand that he loves and needs them both in his life and that the parties must work together as his parents to ensure the parties both support [X] and each other, so that [X] will continue to grow and develop happily and healthily and to be as happy and smart and well rounded as [X] currently is.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate:

Date: 23 October 2012