Mackie & Frobisher [2012] FamCA 41

Orders

That the father and the mother have equal shared parental responsibility for the child of their relationship.

That all extant parenting orders are forthwith discharged.

That save as otherwise set out in these orders, the child D live with the mother.

That until 30 June 2012, D live with the father:

each weekend from 12 noon on Saturday until 12 noon on Sunday; and

each Tuesday from 9.00am to 3.00pm.

That for the period from 1 July 2012 until 28 April 2014, D live with the father:

each weekend from 12 noon on Saturday until 12 noon on Sunday; and

each Tuesday from 9.00am until 10.00am on the following Wednesday morning.

That for the period from 29 April 2014 and thereafter, D live with the father:

during each alternate weekend from the conclusion of school on the Friday until 5.00pm on the following Sunday commencing on the first Friday after 29 April 2014; and

during the period in each week from the conclusion of school on the Tuesday until the commencement of school on the Wednesday morning.

That once D starts school, he live with the father during school term holidays and long summer holidays as follows:

(a)for the school term holidays:

(i)during D’s first year at school, for three days in each of the consecutive two weeks holidays;

(ii)during D’s second year at school, for five days in the first of the two successive weeks; and

(iii)in D’s third year and thereafter, for one half of all such school holidays;

during the long summer holidays:

at the end of D’s first year and second year at school, from Friday at 9.00am until the following Wednesday at 7.00pm in each alternate week;

during the holidays at the conclusion of his third year of school, on a week about basis; and

from the conclusion of his fourth year at school and for each long summer holidays thereafter for one half as a block period.

That for the purposes of these orders, unless the parties agree otherwise, all handovers of D shall take place at Melbourne suburban public building 1 and both the mother and the father shall be entitled to have an agent attend to that task.

That for the purposes of Christmas Day in each year, D spend time with the father:

from 12 noon on 25 December 2012 until 12 noon on 26 December 2012 and for a similar period in each alternate year thereafter; and

from 12 noon on 24 December 2013 until 12 noon on 25 December 2013 and for a similar period in each alternate year thereafter.

That notwithstanding any orders to the contrary, D spend time with the father on Father’s Day and with the mother on Mother’s Day and in each case, for the full day.

That all extant applications are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

That the Independent Children’s Lawyer be forthwith discharged from the proceedings.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES

A.That no orders are made specifically in relation to D’s birthday or the birthdays of either of the parties on the assumption that the parties having an order for equal shared parental responsibility will make the appropriate arrangements for each of them to spend some time with D during those special days.

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

REASONS FOR JUDGMENT

At almost three years of age, D is the only child of Mr Mackie who is aged 28 years (“the father”) and Ms Frobisher who is aged 43 years (“the mother”). There is no dispute that the mother is and always has been the predominant attachment figure in D’s life. The father does not seek to disturb that. He wishes to play a real part in D’s life. Only recently, that parental role became significant.

The problem in this case is that the mother wants to live with D in Tasmania and desires that the father travel there from Melbourne on a fortnightly basis. On the basis of impracticability of the Tasmanian option, the father wants D to remain in the Melbourne area so that his relationship can continue to grow.

D is too young to have a view about his parents’ roles but the Independent Children’s Lawyer urged me to make orders that would ensure that the father and son relationship continued to grow. As such and if accepted, Tasmania was not a realistic option. The Independent Children’s Lawyer’s position was founded upon the very strong expert evidence of the family consultant.

Albeit this was described as a relocation case, in reality it is a parenting case determined by the comparisons of the respective parental proposals and assessing what is in D’s best interests. Whilst best interests principles are determinative, they are not the only considerations as most parenting cases involve an examination of parental needs and aspirations. As Murphy J said in Pitkin and Hendry [2008] FamCA 136 which I respectively adopt, the legitimate rights and freedoms of the parties must give way to the rights and interests of children. His Honour noted the observation of Gummow and Callinan JJ in U and U (2002) 29 Fam LR 74 that parenting has an impact on the wishes and mobility of parenting.

In this case, I have no doubt the mother wishes to be in close proximity of her family and away from the father but that would clash with D’s best interests on the assumption that the father could not continue to develop the relationship nor could he move to Tasmania. All of the evidence points to the fact that the father could not successfully work there. All of the evidence supports the position that the mother could not afford the proposals she proffered of paying for monthly weekends for the father in Tasmania. That proposal was predicated on the father being able to afford the other fortnightly weekend in Tasmania. I find at this stage that he could not.

It would be tempting to see this dispute in simple terms but a focus on D’s interests shows that at almost three years of age, he would need more than alternate weekends if he was to benefit from a meaningful relationship with both parents. The material relied upon by the parties is referred to in the Annexure to these reasons. The mother initially indicated reliance upon a number of documents but her counsel conceded they had no relevance. Further, of the affidavit of both parties, each counsel conceded there was material set out that was of no probative value.

Importantly, no attack was made by either of the parents about the capacity to properly, responsibly and diligently parent D. There was a veiled suggestion by the mother that the father was not competent but to the extent that that was her case (and it was not clear) there is no such evidence.

The father is a student with about one year to go to complete his qualifications. He has flexibility in his studies but is reliant upon Centrelink benefits financially. He is supported by his parents who provide accommodation.

The mother has been an administrative person who is currently fully engaged in parenting of D. She expressed desires to work in jobs that would fit around D’s needs. Her Tasmanian proposal included working two days per week in a hospitality business.

The mother and father commenced their relationship in early 2007. The mother said they did not live together as a couple but to the extent that such a statement has any relevance at all, it was not correct. They stayed together at various places and the mother said they had different bedrooms. During the pregnancy, the mother turned to the paternal grandparents for support with accommodation. They went overseas together. Separations occurred at various times. There was no dispute by the father that as a younger man, he had acted at worst, irresponsibly and at best, carelessly. He drank too much, used drugs, was abusive to people including his parents and the mother and was the antithesis of a responsible parent.

In early proceedings in this Court in 2009, the father’s own mother supported the mother because of her son’s behaviour. I find however that he has grown up. The paternal grandmother’s evidence about him personally and his role as a parent supports that. He had undertaken courses about parenting and anger management but also diligently attended to studies. Surprisingly, none of this was challenged by counsel for the mother. His focus was on the father’s financial position. I am comfortable therefore in finding that there has been a maturation and D is benefitting from it.

As a witness, the father spoke quickly and sentences were either disjointed or incomplete but having regard to what he was asked, I found him trying to be helpful. Much of the probing cross-examination about his attitude to parenting came from counsel for the Independent Children’s Lawyer who, it will be noted, supported the father’s proposal.

Whilst the mother’s evidence endeavoured to portray the early attributes of the father as not having changed, she continued her association with him even to the extent of overseas travel. In her evidence, the mother said she was no longer asserting the father used drugs.

As a witness, the mother focussed on D’s needs. She has very little support around her. She is struggling financially. She was able to tell about D and his development. I am satisfied she is very child-focussed. Her lack of support is concerning yet she has not pursued counselling or required medical assistance. She was able to explain that her dependence had been on the paternal grandparents yet as these proceedings began in early 2011, she rejected financial assistance from them which was offered appropriately. Her reasons for so doing were apparently concerns for Centrelink obligations and I do not criticise her for that. Yet, her counsel cross-examined the paternal grandmother about whether she would provide support in future to her son to ensure that he could travel to Tasmania. That questioning was no doubt done on instructions and seems to fly in the face of the earlier rejections by the mother of help.

The mother referred to an incident said to have occurred in February 2009 wherein the drunken father endeavoured to have sex with her. The precise details were vague and not pressed by the mother’s counsel when I asked its relevance. Counsel for the father upon my indication, did not cross-examine about it. Although the mother said in her affidavit that she was shocked by the father’s behaviour, thereafter their association continued. Having regard to the importance of family violence in parenting proceedings and its insidious nature generally, the evidence, such as it was, was sadly lacking. I do not know what relevance that period has now in the lives of these parties and counsel for the mother, in final address, despite my invitation to address the relevant legal issues, advised me that he was instructed only to put his client’s proposal. The position was most unsatisfactory.

The parties had proceedings before Bennett J in Hobart in September 2009 when D was seven months old. Telling, in her affidavit sworn in July 2011, the mother said that in or around early November 2009, she and the father decided to “try again” with their relationship. This occurred at a time when the further hearing was pending before Bennett J.

Having resumed their relationship, the father and the mother went to Melbourne and attended counselling. That was unsuccessful and they separated in March 2010.

Between March 2010 and the beginning of 2011, the father spent time with D on weekends but it was while the mother was about the house. There was no suggestion from the mother that D was disturbed by the father’s presence until August 2010. At that time, the mother said that she “noticed” D would be agitated, throw tantrums and not sleep well on days where the father had spent time with him. She proffered her belief that this was because D witnessed abuse of her. This abuse was vaguely referred to in the affidavit of the mother and doing the best I can, I find it arose out of arguments to which both seemed to contribute. I accept that was at a time when the father was as I earlier described. Just what happened is unclear and I have no evidence during the period that the mother feared the father. The highest her evidence could be said to establish was that the father upset her.

In early 2011, the mother sought a family violence order against the father in the State court. According to the mother, the basis was abuse. I do not know the details of that nor the basis upon which the order was made. The chronology in the mother’s outline of argument referred to orders being made but then later referred to undertakings being given. I am bereft of evidence about it. In cross-examination, the mother gave no evidence of current problems or fears. An attempt was made from counsel for the mother to shore up that position in his final address but no such evidence was led.

In January 2011, the application by the father was made for parenting orders.

The father proposed a building up of his time with D. He sought orders for each week from 12 noon on Saturday until 12 noon on Sunday and from 10.00am to 3.00pm each Tuesday. That was to continue until a form of kindergarten began. The father has enrolled D in a kindergarten for February 2012. He sought an extra day then so that he would have D from 9.00am on Tuesday until 10.00am on Wednesday.

The father further proposed that from February 2013, he spend time with D on each weekend from Friday through to Sunday and overnight from Tuesday to Wednesday in each week. If that proposal was to be implemented, the mother would not spend any time with D on weekends.

In addition to those proposals, the father also suggested an array of holidays and special days as well as ancillary orders. I propose to deal with those as part of a package.

The mother proposed that the father have time with D in Tasmania on each alternate weekend. His time was to be on Saturdays from 1.00pm to 6.00pm and then from 9.00am until 2.00pm on the following day, that is the Sunday. That was to continue for three months and thereafter, it would be from 1.00pm on Saturday until 2.00pm on Sunday.

When pressed about what should happen in the event that there was no move to Tasmania, counsel for the mother said that he was instructed to put an identical arrangement for that same regime to take place in Melbourne. When asked about other orders, counsel for the mother said he had no other instructions save that the mother wanted sole parental responsibility and a variety of injunctions against the father. When I inquired what evidence he relied upon, counsel could not point to anything specific and certainly nothing that would justify such orders.

The Independent Children’s Lawyer proposed equal shared parental responsibility, that D live with his mother in the Melbourne metropolitan area and that there be a build-up of time between the father and D almost consistent with the father’s position but not quite.

Throughout 2011, there were constant arguments between the parties but what they were about, I am unclear. In cross-examining the father, the mother’s counsel put that there were frequent arguments and the father agreed. Nothing more than that was put.

Of her observations about the father and D, the mother said little. She said she had to encourage D to go to his father. The family consultant observed some hesitancy in D but the paternal grandmother spoke positively about D’s interaction with the father and how well he had settled into the father’s care. This included D having a sleep period whilst he was with the father and that was apparently uneventful.

The mother said that D cried at handover but then she added voluntarily that it was when the child was sick. The only inference open to me is that D otherwise goes to his father quite happily. She said he came back tired but happy. Again she added that this was a “passing phase”.

I find there is no real concern in the mother’s mind about the father’s capacity to care for D.

The mother’s proposal relating to Tasmania was underpinned by a number of assertions. She said the father had not provided her with any financial support for D beyond the child support assessment which having regard to his financial position was minimal. She said that when she asked the father to do something to help her, he “immediately becomes furious with me”. That flew in the face of the fact that there were no assertions of recent confrontations but more importantly, each party has been successfully using a communication book into which they write a whole raft of things that have occurred in D’s life. Questions associated with medical treatment and medication seemed to be no problem. The one issue that caused concern between them was that the father asked to be able to take D to an evening playgroup event but the mother rejected that because of the fact that she made inquiries and it would be too late having regard to D’s routine. In turn, when the mother wanted to change a date, the father refused. Despite those matters, the communication book appears to be working very successfully.

The mother said that most of her family lived in Tasmania. She identified them as her father, step-mother, two sisters and two step-sisters. She referred to an aunty, uncle and cousins. She said her brother was soon to move back to Tasmania. As an overarching principle, she said that she had support in Tasmania. It will be borne in mind that the father was questioned about this and he disagreed that that support was there. Glaringly missing from the mother’s case was any corroborative evidence about her proposals. Corroboration is not essential in cases where the standard of proof is the balance of probabilities but where, as here, the proposals came very late and were short on details, it behoved the mother to produce the evidence so it could be tested. It must be noted that the mother was legally represented.

The mother’s evidence was that she was currently paying $321 per week for a small flat in Melbourne. She set out a variety of alternate options that she had obtained from inquiries through the internet. What was not in her affidavit but became her evidence was that an uncle in Tasmania who has an investment property, offered her his property at $200 per week. This property is currently not tenanted and is being held for the mother. No evidence was called from this relative to confirm what the mother said nor was any evidence given about the potential longevity of any such tenancy.

In her affidavit, the mother said it would be difficult for her to re-enter the workforce yet immediately prior to the hearing, she obtained an offer to work two days per week serving customers in a hospitality business. This business was close to where she would be living if she took the property owned by her uncle. She acknowledged that this would be short term and she would look for other employment. Her evidence was that her step-mother would be available to care for D while she worked. None of this was corroborated. That is particularly important as I earlier mentioned because of the father’s refusal to accept that the mother’s support was as she stated.

Counsel for the father teased out of the mother her background to highlight the lack of connection with her family in the past. She had moved from Tasmania to the mainland in about 1998, had worked in Italy and had lived for awhile with her parents. She then went back and forwards in various jobs. She confirmed that she had not applied for any similar hospitality business-type positions in Melbourne and when asked why, she said that she was busy with D. She added however that she was hoping that she would be allowed to move to Tasmania and therefore was not troubled about employment.

One fundamental problem however was that the mother set out in her affidavit her monthly expenses but did not include basic items such as food, clothing, hairdressing, chemist, gifts and the like. When I asked her about those expenses, she conceded that her monthly expenses would be much higher than she had set out in her affidavit. She conceded that the Centrelink payment that she was receiving may be affected by employment and when those debits and credits were contemplated, it was hard to see how there was any serious possibility of her being able to set aside any money to fly the father to Tasmania on an alternate weekend basis as well as provide for his accommodation.

It was the mother’s evidence that she had made inquiries of a motel in Hobart, the shuttle bus service from the airport and an airline. She conceded that the airline tickets were cheapest when purchased well in advance and she had a commitment from the motel to provide an overnight on a weekend at about $80. All of this was unsubstantiated by any documentation and did not take into account whether the relevant flight times would coincide with the orders that she was proposing nor the relevant costs of getting to and from the airport at the Melbourne end.

Without corroboration and specific material as to the anticipated costs, I find that I cannot accept that there is a basis to accept the mother’s evidence about her capacity to fulfil what she was proposing. I do not accept that her move to Tasmania would mean that D would be anymore financially secure.

In addition, it was the mother’s evidence that an alternate weekend basis was sufficient for D. That flies in the face of the family consultant’s expert opinion as well as the evidence of how successful the existing relationship is between the father and D. That relationship involves much more than just weekend time.

The mother also said that in respect of the father’s relationship with D, she had no similar level of support in Melbourne. That too seems inconsistent with the evidence that she gave about the offers made by the paternal grandmother. The relationship between the two would now seems to be tenuous. The mother gave evidence that she did not feel comfortable leaving D in the grandmother’s care because she believed that D had not been adequately cared for when he was ill. She said in addition, that when the grandmother was asleep, because she had hearing aids, which were not on at night, D would not be heard. All of this evidence was said in a vacuum of not really knowing what has been going on in the paternal grandparents’ home for most of 2011.

Ms Mackie is the maternal grandmother. She set out evidence of the background throughout 2009 through to 2010 but then concentrated on the most recent events.

The paternal grandmother made clear that she did not approve of her son’s former life and behaviour. She made no secret of the fact that she would not tolerate that sort of behaviour around D. She was effusive in her commendations now of her son as a parent and was able to tell me all of the things that her son did and how well he cared for D. She pointed to the fact that albeit D lived in her house, it was he who was caring for D. He prepared meals and cleaned up after the child had been playing. She said she felt confident that her son was able to do things responsibly as a parent. None of this witness’ evidence was challenged by counsel for the mother. Having regard to the statements in the mother’s affidavit, the absence of cross-examination on critical issues such as this was telling. I carefully watched the demeanour of the paternal grandmother. She set out what she proposed to provide for her son and grandson in future. She has a strong belief which is well-founded that her son has turned the corner and become responsible. She was clearly holding out an olive branch to the mother. She was not critical of the mother in any way. She made an offer to financially assist the mother early in 2011. I was most impressed with the paternal grandmother whose evidence I accept.

The father’s evidence about his relationship with D was that in January 2011, they met at the mother’s home and there were arguments about silly things such as lunch. The father said that he contacted the family mediation centre to try and solve the problems.

In the middle of January 2011, he assisted in the repairing of damaged tiles that the mother thought posed a risk to D’s safety in her home. He installed a safety gate to prevent D getting into the kitchen and he put a safety rail on the child’s bed. He installed locks on cupboard doors. The mother’s evidence in her affidavit was that this was only done after she had repeatedly told the grandmother about the problems and expressed her concerns. That had a hollow ring about it having regard to the fact that none of those matters were put to the paternal grandmother nor was the father challenged about what his real interest was in doing what he did.

From February 2011, the father spent time with D on each Tuesday and each Saturday and each alternate Sunday for about five hours. Pursuant to the orders to which the father agreed, either of his parents was in substantial attendance.

As for his relationship with D, the father said that he did not have any issues with D settling or sleeping. It was the mother’s affidavit evidence that the father had told her that D did not have “naps” during the contact periods. She pointed to the fact that the child was exhausted and fell asleep immediately he was returned to her. None of this evidence was really tested but having regard to what the paternal grandmother told me, I accept the father’s version.

The father said that he made arrangements to attend a children’s centre on the Tuesday mornings of each week which D really enjoyed and into which he had settled. He said the child’s behaviour was much improved from prior to that period of time which he described as being physically aggressive and refusing to share things.

Unlike the father, the mother would not tell the father where the playgroup was that she was attending.

The father saw no difficulty in caring for D overnight and had no fears that the child would not settle. He said that the child had a bedroom very close to his and he would hear what was going on. Contrary to the mother’s assertion of his alcohol consumption, he and his mother gave evidence about the fact that there was little or no drinking now occurring and certainly not whilst he was caring for D.

In respect of the issue of the mother’s proposal to move to Tasmania, he said that he had no prospect of being able to afford the travel costs because of his current financial lifestyle. Counsel for the mother tested this by putting to the father all of what he had done over the period of 2011. I am satisfied that the father was truthful and that his financial position is as he portrayed. There is no prospect in the twelve months ahead that the father could afford to travel on an alternate weekend basis at his own expense presupposing the mother was able to afford the other alternate weekends in each month.

In relation to working himself in Tasmania, the father said that with his trade and skills, there was no work for him in that State but his prospects for the future were much better once he completed his qualifications. That obviously has flow-on effects for the financial support of D in the future not to mention he has the opportunity to develop his relationship with D.

It was the father’s position that he wanted to be involved in D’s kindergarten and schooling as well as extra-curricular activities. The move to Tasmania and particularly that proposed by the mother would not enable him to have that opportunity. Generally, I accept the father’s evidence as truthful on the basis that it was largely undisputed.

Ms C was the family consultant appointed to this particular case. She is a social worker with a post-graduate diploma of psychology. She has been with the Family Court since 2009. No party challenged her expertise.

Her evidence of observations of the parties and D was uncontroversial and consistent with the evidence of the parties. What was helpful and I accept, was her expert opinion that D needs regular and consistent contact with his father for periods modestly short-timed apart.

In cross-examination, counsel for the mother put to the family consultant that although her opinion arose out of the theories of attachment, there were alternate theories. No specific alternate theories or research papers were put to the family consultant and I have no idea what alternate proposals there may be. The family consultant however was not challenged about the fact that her views were well-founded upon research and her own experience.

It was the family consultant’s view that early father and child interactions formed the basis of a child being able to form healthy self-concepts in later life. She said that as the child’s cognitive ability continued to develop, it was important that he be able to perceive a positive situation between his parents which would help maximise his attachment to his father. That message must be loud and clear to the father as much to the mother. Their respective behaviour in the early days of this child’s life was disruptive of his development. Their ongoing relationship must be child-focussed for the future.

The family consultant said that three year olds were able to tolerate overnights but it was not until a child was at school age that the concept of time and space became conceptualised and that a child could more readily tolerate significant periods of absence from the parent whom they were most attached. The family consultant suggested that the mother might want to consider delaying the proposed move to Tasmania to allow D to secure his relationship with his father. That issue was never countenanced by the mother.

It was the family consultant’s view that a move to Tasmania would severely restrict D’s opportunity to consolidate his attachment with his father and whilst the child might benefit from the mother who was less stressed as a result of economic improvement, for the reasons I have earlier outlined, I doubt whether that would be the case. The family consultant also pointed to the prospect of ongoing relationships with extended family members who would be of the same age as D but that too depended upon what sort of time was spent and in my view, it cannot be as important as the relationship with his father.

The family consultant acknowledged that for the first three years of D’s life, he had developed a strong attachment to his mother which would continue. That closeness and nurturing was critical in the first two years but after that time, a child becomes interested in exploration and in the more physical type of relationship which occurs with a father. That is exactly what is happening here.

The family consultant was concerned that the spontaneity and physicality of the relationship to the father which is now blossoming would be significantly constrained. D’s developmental stage would make it difficult for him to maintain a connection if the periods were longer apart and the places where the relationship occurred were in strange places such as motels or caravan parks. Those places would be devoid of not only the usual activity that children would involve themselves in but also the surroundings of the father’s home to which the child has become accustomed.

The family consultant raised the question of the mother’s psychological health if she remained in Melbourne but the evidence does not support any such concern. As I pointed out earlier, the mother has not sought any professional assistance and her underlying view is that she just wanted to be in Tasmania near her family.

The family consultant’s view was ideally, D needed both parents in close proximity. She said he was a sensitive child who required the balance that each parent could provide. The parenting styles were diametrically opposite but that is something from which D would benefit. The family consultant also pointed to the nature of the relationship with the paternal grandparents and I accept that that is strong. It was the mother’s evidence that the child had spent time on Skype talking to her family members but there is no evidence before me as to the nature of that relationship. Bearing in mind the short attention span of a child of D’s age, a Skype connection is hardly a positive development.

It was clear that the general consensus among social science research is that children fare better when provided an opportunity for a significant and meaningful relationship with both parents and any other significant adults in their life. That clearly will happen here if D remains in close proximity with his father. Just how the mother will cope is not a matter about which I can make a finding.

In my view, all of the evidence points to the fact that what is happening between D and his father is positive.

The family consultant opined that the time issues depended upon the proximity of the mother to the father as well as when school or kindergarten commitments began. As there is no other evidence before me, I can only presume that the mother will be a reasonable distance from the father and that that distance would not preclude the ongoing significant role of the father in the child’s life. I accept the evidence of the family consultant. It is powerful and guides this decision.

The various findings about the proposals of the parents, their capacities to fulfil those proposals and the histories of them are all guided by the best interests principles. Notwithstanding it is important for the parties to articulate their proposals, they do not set the parameters of the dispute nor dictate the way in which the matter must be determined. It is the function of the Court to assess and weigh all of the proposals in the light of the evidence and the statutory requirements and work out what is best for the child.

In the Act, much focus is upon the best interests principles but those must be guided to a very large degree by the objects and principles which underlie Part VII. Thus, when making the various assessments, a constant eye must be kept on those objects and principles and wherever possible, attempts must be made to meet them. These are, after all, the aspirations of the community for children articulated by the Parliament.

Aspirations though they may be, it is common in court proceedings to see parents who cannot communicate with one another, some of whom face a power imbalance caused by their fear of their former partner. It is important to not only recognise and accept as a reality those issues when determining what is best for children because those fears affect capacity to parent. The parents in this case got off to a bad start and with the benefit of hindsight, things should have been done differently. They now have the responsibility for D’s future and must learn to focus on his needs.

One legislative object requires the Court to consider what order can meet D’s best interests by ensuring that he has the benefit of both of his parents having a meaningful involvement in his life. Another is a requirement to protect D from physical or psychological harm. In this case, I find that extensive involvement of both parents is good for D’s development and long term future. The father asserts he has matured and has a genuine desire to be a significant parent. The mother’s evidence was largely silent on that issue. The Family Consultant supported the father’s contention.

Another objective is to ensure that D receives adequate and proper parenting and that the parents fulfil their duties and meet their responsibilities. Despite the mother’s vague criticism, I accept the evidence of the father and the objective evidence of the paternal grandmother that when with him, D is receiving proper parenting. Proper parenting is more than just playing with a child. It includes encouraging skills and enhancing learning. It includes setting boundaries and enforcing discipline. It means ensuring that a child is protected from physical harm both from the parent and also from the child’s own adventurous spirit. It means ensuring that a child is not distressed by what it sees and hears and is comforted when anxious. Although none of this was specifically the subject of evidence from the father, I can see no reason why I should not accept that those are his ideals. In this case, all of those attributes are being fulfilled by the mother. The Family Consultant was positive about the mother’s attributes. It is clear that D is not only very much attached to her but the primary focus of her life. It is important that she begin to accept that the father desires to fulfil a responsibility that probably has been lacking in the past. D has the right to know and be cared for by both parents and to spend time on a regular basis with and communicate with both parents. The legislation uses the word “regular” and its meaning varies in each case according to the age and state of development of a child. The evidence is that a child of three needs more shorter periods of contact and short times apart until such time as he can separate from his attachment figure and understand space and time. In D’s case, a move to Tasmania would deny him the benefit of that regular contact.

The mother said that because she would possibly be living in Tasmania, she should have sole parental responsibility. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That mandatory presumption is rebutted if a court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse or family violence. I am not satisfied for the reasons above that that situation applies. Accordingly, the presumption is not rebutted. Similarly, the presumption may be rebutted if the Court determines it is not in the best interests of D for it to be applied. Again, counsel for the mother pointed to no evidence that would support such a finding.

Regardless of whether or not the presumption referred to has been rebutted, s 64B(2)(d) provides that a parenting order may still deal with the allocation of parental responsibility. Parental responsibility means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Both parents show close interest in D’s welfare. They each talked about playgroups and kindergarten; they each visited doctors concerning D’s health; they each talked of D’s involvement with extended family members. I find each wants to fulfil the sorts of responsibilities that the law expects of parents.

Section 65DAC provides that if parents are to share those responsibilities and have to make a major long-term decision, they are required to make the decision jointly. Jointly does not necessarily mean discussing face to face but it does require a method of communication and a method of resolving impasses. In this case, the communication book appears to be the method of choice. Albeit each parent pointed to an example of an impasse over the playgroup party, that was a minor problem. The anticipated joint decisions are about major issues such as schooling and health. On those issues, I do not expect such impasses to arise.

The only explanation put forward by the mother’s counsel for making an order for sole parental responsibility in her favour was the tyranny of distance. Absent the mother being in Tasmania, that was no longer a relevant consideration. Accordingly, there is no impediment to an order being made for equal shared parental responsibility.

Section 65DAA of the Act relevantly sets out that if a parenting order is to provide that a child’s parents are to have equal shared parental responsibility, there are mandatory consequences. In this case, I propose to make such an order for the reasons set out above.

The first consideration is whether D spending equal time in its infinite variety of forms with each parent would be in D’s best interests. For the reasons set out above, and particularly because of D’s age, I find it would not be. In addition, I find it would not be reasonably practicable. The determination of that question requires the Court to have regard to:

how apart the parents live from each other;

the parents’ current and future capacity to implement an arrangement for D to spend equal time with each parent;

the parent’s capacity to communicate with the other and resolve difficulties that might arise in implementing an equal time arrangement;

the impact that an equal arrangement would have on D; and

such other matters as may be deemed by the Court to be relevant.

I find in respect of those matters that the mother and the father live a reasonable distance apart which while certainly inconvenient for the mother for travelling purposes, is not a distance that requires long periods of travel, high costs or major inconvenience. However, I am satisfied that with the limited communication, an equal time order would be difficult at the moment. Long gaps apart such as seven day blocks with each period would not be reasonably practicable because of D’s developmental capacity. Shorter periods of time would require numerous regular handovers which would be difficult when the parties relied on a communication book but each of them also needs to work and/or study. An equal time order whether for long periods or short requires cooperation which at the moment is limited to the communication book. An equal time arrangement requires much better communication than that and I find in this case that it would not work. As I have also pointed out, the impact on D of such an arrangement has to factor in the potential for problems with being separated from either parent for too long. I find therefore it would not be reasonably practical for an equal time order.

Section 65DAA(2) provides that if the court rejects equal time in the circumstances outlined above, it must consider substantial and significant time. Substantial and significant time is defined as time that falls on both weekdays and weekends and which allows a parent to be involved in a child’s daily routine as well as attend and participate in occasions and events that are of significance to both the child and the parent. All of the evidence points to the fact that it would be in D’s interest for that to occur having regard to his age and as the family consultant pointed out, seeing his father attending school and meeting teachers is an important part of parenting. In that case, it is appropriate to find that it is in the best interests of D that the court order substantial and significant time. The second question however is whether or not that is reasonably practical and the same considerations as set out above apply. The same geographic considerations are relevant but unlike equal time, substantial and significant time does not require the same cooperation to implement the arrangement. Similarly, the same stresses and impact upon D do not apply as they would for an equal time order. In those circumstances, it is appropriate for an order to be made for substantial and significant time even though it may have to be built up towards the early years of schooling.

Section 60CA requires that when a court is deciding whether to make a parenting order, it must regard the best interests of the children as the paramount consideration. To determine how to assess those best interests, the Court is obliged to turn to the provisions of s 60CC.

Consideration of Section 60CC enables a picture to emerge of what orders should be made that might best advance the interests and development of the children.

It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. In Loddington & Derringford (No. 2) [2008] FamCA 925 I referred to the fact there was no legislative definition of meaningful relationship and said that for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. All of the evidence supports the conclusion that there is a meaningful relationship between D and both of his parents. The focus however must be on the word “benefit”. There is no evidence that would enable me to find that an order for the father to be significantly involved in terms of time, would adversely affect the relationship between mother and child. There is ample evidence that D will not benefit from an otherwise meaningful relationship with his father if the mother moves to Tasmania. The evidence therefore supports the conclusion that D should be within close proximity of his father’s residence.

The other primary consideration concerns the protection of D from harm for the reasons set out in the Act. No party put to me that there was a concern that orders needed to be tailored to protect D. The evidence led by the mother of the incidents in early 2011 in her residence would not enable me to find that D is at any risk of physical or emotional harm from his father or his mother.

Section 60CC has a number of additional considerations. There is no point in contemplating D’s views about his immediate future as he is too young.

The section requires the Court to contemplate the nature of D’s relationship with each of his parents. I have set that out above. Both parents love and care for him and I accept that both want what is best for him. Each parent has the capacity to provide for D’s physical needs. Each fulfils a different but important role. I have no concerns about the focus of either of them as parents.

Section 60CC requires the Court to look at the payment of assessed child support. This is simply an indicator of parental responsibility. The father currently provides limited child support which is not surprising because he is a student and Centrelink recipient. I have little doubt that as his studies conclude and he enters the workforce, he will provide proper financial support for D.

The section also requires contemplation as to how each parent has facilitated D’s relationship with the other. Nothing I heard suggests that either parent acts destructively of or undermines the other’s relationship with D.

Section 60CC requires the Court to consider the likely effect of changes in the children’s circumstances. This is a difficult and critical question when a child is as young as D. I rely heavily on the expert evidence of the Family Consultant. There was serious challenge by the mother to that evidence. In her evidence, the mother proffered the view that D would cope with the absence of his father and changes to her living arrangements but I find that those views are not supported by any expert’s view nor are they borne out of the mother’s experience. In reality the mother’s views are driven by her desire to be in Tasmania where her hope is that her financial position will change and she will have the support of family. No evidence was produced by the mother to show that her view was anything more than a hope. The existing evidence shows that D is capable of separating from his mother and that he goes to his father successfully. The Family Consultant was also unchallenged on the question of what was an appropriate overnight regime for D having regard to his age and stage of development.

For the purposes of s 60CC, I am satisfied that both parents are meeting all of the emotional and intellectual needs of D.

I have already mentioned family violence. I do not accept that the evidence about the relevant history of this relationship would enable me to make a finding that there was family violence within the definition in the Act. I have also referred to the assertion in the outline of argument about a family violence order but I am not satisfied that any such order existed.

Section 60CC requires a court to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. D is very young and as he reaches various childhood milestones, things will change and greater demands will fall on the parents. There is not enough evidence for me to guess at how those changes would require orders beyond the next two years. I have the expert evidence of the Family Consultant about her expectations of D’s needs and capacity to change. I rely upon that evidence. In my view, the parents will need to consult with one another whether through the communication book or with the assistance of professionals to work out the future living arrangements for D beyond 2013. In the meantime, both parties need security and finality and as such, final orders should be made.

I have contemplated the matters in s 60CC(4) and (4A) which examine the way in which each parent has facilitated and taken up the options of the development of the relationship with D. The early months of D’s life were disrupted and unsettled with constant movement. I do not accept that it was the fault of just one parent. Both contributed to the problem. I do not accept that that should influence the determination here because the father has now settled down and begun to act as a parent should and to her credit, the mother has encouraged that relationship.

Having regard to the evidence of the family consultant, D can manage separation from his mother as well as time with his father on a staged basis over the ensuing few years. It was the family consultant’s view with which I agree that by June 2012, D should be able to manage overnight during his three year old kinder week. There was little focus on the future school holidays but the family consultant thought that D could cope with a build-up over the early school year. Whilst that is clearly crystal ball gazing, I think it is important for there to be some certainty so I propose to make relatively conservative orders to enable D to separate from his mother and develop a strong attachment to his father during those periods.

It will also be noted that the orders refer to “live with” rather than “spend time with” and as those matters were canvassed by the parties and no-one demurred from that arrangement, I propose to make those orders on the basis that they are in the child’s best interests.

DOCUMENTS RELIED UPON

The applicant father

The application filed 20 May 2011

The affidavit of the father filed 20 May 2011

The affidavit of the father filed 1 August 2011

The affidavit of the paternal grandmother filed 28 January 2011.

The respondent mother

1.The response filed 14 July 2011

2.The affidavit filed 14 July 2011 of the mother

The Independent Children’s Lawyer

1.The family report of Ms C dated 17 November 2011.

I certify that the preceding Ninety Three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 January 2012.

Associate:

Date: 16 January 2012