FEDERAL MAGISTRATES COURT OF AUSTRALIA
BERTRAND & DUBOIS	[2012] FMCAfam 449	

FAMILY LAW – Parenting – parental responsibility – age appropriate spend time with arrangements for a young child.	

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC	

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GR [2010] HCA 4
Mazorski v Albright (2008) 37 Fam LR 518	

Applicant:	MR BERTRAND	

Respondent:	MS DUBOIS	

File Number:	BRC 3315 of 2010	

Judgment of:	Lapthorn FM	

Hearing dates:	6, 7, 8 March & 24 April 2012	

Date of Last Submission:	24 April 2012	

Delivered at:	Brisbane	

Delivered on:	18 May 2012	

REPRESENTATION
Counsel for the Applicant:	Ms Carew	

Solicitors for the Applicant:	DK Law	

Counsel for the Respondent:	Ms Hogan	

Solicitors for the Respondent:	Barry Nilsson.Lawyers	

ORDERS
(1)	All previous parenting orders be discharged;
(2)	Except as otherwise stated, the father and the mother have equal shared parental responsibility for the long term issues of the child [X] born [in] 2008 including but not limited to:
(a)	The child’s education (both current and future);
(b)	The child’s religious and cultural upbringing;
(c)	The child’s health;
(d)	The child’s name;
(e)	Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the each parent.
(3)	The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibilities as follows:
(a)	They shall inform the other parent about the decision to be made;
(b)	They shall consult with each other on terms that they agree;
(c)	They shall make a genuine effort to come to a joint decision;
(4)	Notwithstanding the provisions of Order (2) herein;
(a)	The mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her;
(b)	The father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him; and
(c)	Unless otherwise agreed between the parties in writing the child attend The [S] School commencing prep in 2014.
(5)	The child live with the mother;
(6)	Unless otherwise agreed the child spend time with the father as follows:
(a)	For a period of six months commencing 20 May 2012:
(i)	From 9am Sunday to 9am Monday each week;
(ii)	From 9am to 6pm each Wednesday;
(b)	For a period of six months commencing 25 November 2012:
(i)	From 9am Sunday to 6pm Monday for three consecutive weekends in every four;
(ii)	From 9am Monday to 9am Tuesday for the fourth weekend;
(iii)	From 9am to 6pm each Wednesday;
(c)	Commencing 19 May 2013 until the commencement of term one of the child’s prep year at school:
(i)	In week one from 9am Sunday to 6pm Tuesday and each alternate week thereafter;
(ii)	In week two from 9am Monday to 6pm Tuesday and each alternate week thereafter;
(d)	Commencing at the beginning of term one of the child’s prep year at school and for the duration of that school term:
(i)	In week one from 9am Sunday to before school Tuesday and each alternate week thereafter;
(ii)	In week two from after school Monday to before school Wednesday and each alternate week thereafter;
(e)	Commencing at the beginning of term two of the child’s prep year at school:
(i)	In week one from 9am Sunday to before school Wednesday and each alternate week thereafter;
(ii)	In week two from after school Monday to before school Wednesday and each alternate week thereafter;
(f)	Commencing 2014 during school holidays:
(i)	The periods of time provided for in (6)(e) above be suspended during school holidays;
(ii)	For a period of 4 consecutive nights during the holidays at the ends of terms one, two and three in 2014;
(iii)	For 5 consecutive nights each fortnight during the long holidays at the end of term four in 2014;
(iv)	For alternate weeks during all school holidays in 2015;
(v)	Thereafter for one half of all school holidays as agreed and failing agreement the first half in even numbered years and the second half in odd numbered years.
(g)	Notwithstanding Order (6)(a)(i) herein, for the weekend commencing Saturday [date omitted] 2012 the child will spend time with the father from 9am Saturday to 6pm Sunday to enable him to attend the father’s wedding.
(h)	From 8.00am until 6.00pm on Father’s Day where Father’s Day does not ordinarily fall on the Sunday that the child is spending time with the father;
(i)	For a period of 4 hours on the child’s birthday if the birthday falls on a weekend or for a period of 2 hours if the birthday falls on a school day;
(j)	From 3pm Christmas Eve to 1pm Christmas Day in odd numbered years and from 1pm Christmas Day to 6pm Boxing Day in even numbered years.
(7)	That for the purposes of implementation of these orders unless the child is to be collected from or delivered to his school the mother is to cause the child to be delivered to the father’s residence at the commencement of the periods of time and the father is to cause the child to be delivered to the mother’s residence at the conclusion of the periods of time.
(8)	That notwithstanding any other provision herein the child spend time with the mother:
(a)	For a period of 4 hours on the child’s birthday if the birthday falls on a day the child is with the father;
(b)	From 3pm Christmas Eve to 1pm Christmas Day in even numbered years and from 1pm Christmas Day to 6pm Boxing Day in odd numbered years;
(c)	From 8am to 6pm on Mother’s Day if the child is in the Father’s care;
(d)	That the mother be permitted to holiday with the child for a period of not more than half of the school holiday periods upon giving the father 7 days notice, with any time missed by the father to be made up following the time missed.
(9)	That the mother and father be entitled to telephone communication with the child from 5:30pm to 6pm on two days per week during such times as the child is not in their care.
(10)	That the mother and the father:
(a)	Keep the other parent informed in writing at all times of the residential address and mobile telephone number and whom is living in the home with the parent at that time;
(b)	Keep the other parent informed in writing of the names and addresses of any treating medical or other health practitioner that treat the child and authorise any treating medical practitioner to release the child’s medical information to the other;
(c)	That the parents authorise, by this Order, the school/pre schools or kindergartens attended by the child to give each parent information about the child’s education progress and other related activities.
(11)	That during the time the child is to spend with each parent that parent shall:
(a)	Respect the other parent’s privacy; and
(b)	Not denigrate or insult the other parent, partner or family members in the presence of or hearing of the child.
(12)	That upon the child commencing year one either parent be at liberty to travel overseas with the child during school holiday periods save that the travelling parent shall provide a complete itinerary to the other parent including contact telephone numbers no later than 21 days prior to their departure.
(13)	That each parent sign all documents and perform all acts necessary to ensure that the child retains a valid passport, and if either party fails to sign such documents, then the Registrar of the Federal Magistrates Court of Australia at Brisbane is hereby appointed pursuant to the provisions of section 106A of the Family Law Act to execute such document on behalf of such party, with the passport to be retained by the mother and to be released to the travelling parent upon proof of compliance with the preceding paragraph and returned to the mother within 3 business days of the child returning to Australia.

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

(1)	
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Brisbane	
BRC 3315 of 2010
MR BERTRAND	
Applicant

And

MS DUBOIS	
Respondent

REASONS FOR JUDGMENT
Introduction
1.	The father of three year old [X] would like to spend more time with him but his mother is reluctant to increase the child’s time with is father at the same pace and for the same extent as his father would like.  They also disagree as to which school he should attend in the future and who should be responsible for making decisions affecting [X]’s long term care welfare and development.
2.	These disagreements have arisen even though they entered into consent orders on 5 May 2010 (the consent orders) and accordingly the court is asked to make new parenting orders.
Competing Proposals
3.	The applicant father filed his Initiating Application on 27 January 2011 seeking to have part of the consent orders discharged.  Although in this application he sought spend time with orders he was in effect seeking a form of shared care although not equal shared care.  His proposed orders provided for the child to spend time with him from Wednesday morning to Friday afternoon each week as well as from every Sunday morning to Monday afternoon.
4.	At the hearing he amended the orders sought to provide for a four staged process of increasing time that would ultimately see the child spend time with him for three nights in one week and three nights in the second week of an alternating fortnight regime.  This proposal could also be described as a form of shared care.  As well as the spending time/live with arrangements the father sought orders for equal shared parental responsibility, alternative dispute resolution and arrangements for the care of the child in the event that the mother was travelling overseas for a period in excess of seven days.  His proposed orders were quite detailed but for the sake of clearly identifying the orders he sought I will include them below:
(1)	That all previous orders be discharged.
(2)	Except as otherwise stated, the father and the mother are to have equal shared parental responsibility for the long term issues of the child [X] born [in] 2008 including but not limited to:
(a)	The child’s education (both current and future);
(b)	The child’s religious and cultural upbringing;
(c)	The child’s health;
(d)	The child’s name;
(e)	Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the each parent.
(3)	That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibilities as follows:
(a)	They shall inform the other parent about the decision to be made;
(b)	They shall consult with each other on terms that they agree;
(c)	They shall make a genuine effort to come to a joint decision;
(4)	Notwithstanding the provisions of Order 1 herein;
(a)	The mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her;
(b)	The father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with him.
(5)	Except as otherwise ordered, the child is to live with the mother.
Time with the other parent
(6)	That the child is to spend time with and/or to communicate with the father as agreed between the parents and if they fail to agree then as follows:
(a)	For a period of two months following the date of the order:
(i)	Each week from 9.00am Sunday until 9.00am Monday; and
(ii)	Each week from 9.00am until 5.00pm Wednesday
with the mother to deliver the child to the father’s residence at the commencement of the specified period and the father deliver the child to the mother’s residence at the conclusion of the specified period;
(b)	Thereafter each week from 9.00am Sunday until 6.00pm Monday with the mother to deliver the child to the father’s residence at the commencement of the specified period and the father deliver the child to the mother’s residence at the conclusion of the specified period; such time to continue for a period of two months;
(c)	Thereafter:
(i)	In week one from 9.00am Sunday until 6.00pm Tuesday; and
(ii)	In week two from 6.00pm Sunday until 9.00am Wednesday;
with the mother to deliver the child to the father’s residence at the commencement of the specified period and the father deliver the child to the mother’s residence at the conclusion of the specified period.
(d)	Upon the child commencing attendance at prep school then time in week one is to be extended until the commencement of school on Wednesday with the mother to deliver the child to the father’s residence at the commencement of the specified period and the father deliver the child to school or if not a school day then to the mother’s residence at the conclusion of the specified period.
(e)	Commencing in the first school holiday period 2013, during school holidays being one half of the school holiday period being the first half in odd numbered years and the second half in even numbered years unless otherwise agreed in writing between the parents;
(f)	From 8.00am until 6.00pm on Father’s Day where Father’s Day does not ordinarily fall on the Sunday that the child is spending time with the father;
(g)	The father be entitled to telephone communication with the child from 5.30pm to 6.00pm on two days per week agreed to between the parents during such times as the child is not in his respective care’
(h)	For a period of 4 hours on the child’s birthday if the birthday falls on a weekend or for a period of 2 hours if the birthday falls on a school day;
(i)	From 3.00pm Christmas Eve to 1.00pm Christmas Day in even years and from 1.00pm Christmas Day to 6.00pm Christmas Day in odd years;
(7)	That the mother and the father:
(a)	Keep the other parent informed in writing at all times of the residential address and mobile telephone number and whom is living in the home with the parent at that time;
(b)	Keep the other parent informed in writing of the names and addresses of any treating medical or other health practitioner that treat the child and authorise any treating medical practitioner to release the child’s medical information to the other;
(c)	That the parents authorise, by this Order, the school/pre schools or kindergartens attended by the child to give each parent information about the child’s education progress and other related activities.
(8)	That during the time the child is to spend with each parent that parent shall:
(a)	Respect the other parent’s privacy; and
(b)	Not denigrate or insult the other parent, partner or family members in the presence of or hearing of the child.
(9)	The process to be used for resolving disputes about the terms of operation of this Order shall be as follows:
(a)	They shall consult with a family dispute resolution practitioner or counsellor to assist with resolving any dispute or reaching agreement about changes to be made;
(b)	They shall pay the costs of the family dispute resolution practitioner equally;
(c)	In the event they cannot agree on a family dispute resolution practitioner or counsellor the father shall nominate three (3) practitioners and advising in writing details of their fees, experience and availability;
(d)	The mother shall choose one of the listed practitioners within 7 days of receipt of the list;
(e)	If the mother fails to choose then the father may choose.
(10)	Before an application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the following steps referred to in paragraph 7 herein;
(11)	Where Mother’s Day ordinarily falls during a time when the child is with the father, the father return the child to the mother at 9.00am on Mother’s Day.
(12)	Any notice in writing sent by email should be accompanied by a text message alerting the party to the fact an email has been sent.
(13)	That the mother be entitled to telephone communication with the child from 5.30pm to 6.00pm on two days per week agreed to between the parents during such times as the child with the father for holiday time and on Saturday during times the child is with the father on weekends.
(14)	That the child spend time with the mother:
(a)	For a period of 4 hours on the child’s birthday if her birthday falls on a weekend the child is with the father.
(b)	From 3.00pm Christmas Eve to 1.00pm Christmas Day in odd years thereafter.
(15)	That should it be the intention of the mother to travel out of the Commonwealth of Australia for any period of longer that 7 days, then the child is to be in the care of the father for the duration of the mother’s holiday; commencing on the day immediately prior to the mother’s departure and ending on the day immediately following the mother’s return.
5.	The respondent mother filed her Response on 9 March 2011 but at the hearing relied on her Amended Response filed 8 February 2012. She sought orders that provided for the child to live with her and for her to have sole parental responsibility.  She proposed the child have day only periods of time with the father each week on Wednesdays and on alternate Sundays.  Her proposed orders also included provisions for the mother and child to have up to four three week holidays each year during which the father’s time would be suspended.  She also sought orders for the child’s schooling and passports.  
6.	The mother’s position had changed significantly by the last day of the hearing when her counsel handed up a proposed minute of order which became exhibit M2.  The orders she sought were also detailed and were as follows:
(1)	That the Mother have sole parental responsibility for the major long term decisions affecting the child, [X], born [in] 2008. 
(2)	That the Mother and Father have sole responsibility for the day to day care, welfare and development of the child when the child is in their care.
(3)	That the child live with the Mother and spend time with the Father as agreed, and failing agreement: 
(a)	From the date of these orders, each Sunday and Wednesday from 9:00am until 6:00pm.
(b)	From 1 October 2012, each Wednesday from 9:00am until 6:00pm and for the first three weeks out of each four week period from 9:00am Sunday until 9:00am Monday and in the other week from 9:00am Monday until 9:00am Tuesday.
(c)	From 1 October 2013, from 9:00am Sunday until 6:00pm Monday for the first three weeks out of each four week period and in the other week from 9:00am Monday until 6:00pm Tuesday.
(d)	From the child’s commencement of preparatory school, in the first week from 9:00am Sunday until the commencement of school (9:00am) on Tuesday, and in the second week from the conclusion of school (3:00pm) on Monday until the commencement of school on Tuesday (9:00am).
(e)	From the child’s commencement of grade 1, in the first week from 9:00am Sunday until the commencement of school (9:00am) on Tuesday, and in the second week from the conclusion of school (3:00pm) Monday until the commencement of school on Wednesday (9:00am).
(f)	During school holiday periods unless otherwise agreed in writing between the parents:
(i)	During prep, for a period of three consecutive nights each fortnight;
(ii)	From grade 1, for a period of four consecutive nights each fortnight;
(iii)	From grade 2, for a period of five consecutive nights each fortnight;
(iv)	From grade 3, each alternate week being the first week in even numbered years and the second week in odd numbered years;
(v)	From grade 4, for one half of each school holiday period being the first half in even numbered years and the second half in odd numbered years.
(g)	From 8am to 6pm on Father’s Day where Father’s Day does not ordinarily fall on the Sunday and that the child is spending time with the father;
(h)	For a period of 4 hours on the child’s birthday if the birthday falls on a weekend or for a period of 2 hours if the birthday falls on a school day;
(i)	From 3pm Christmas Eve to 1pm Christmas Day in odd numbered years and from 1pm Christmas Day to 6pm Boxing Day in even numbered years.
That notwithstanding any other provision herein the child spend the following time with the mother:
(j)	For a period of 4 hours on the child’s birthday if the birthday falls on a day the child is with the father;
(k)	From 3pm Christmas Eve to 1pm Christmas Day in even numbered years and from 1pm Christmas Day to 6pm Boxing Day in odd numbered years;
(l)	From 8am to 6pm on Mother’s Day if the child is in the Father’s care;
(m)	That from the date of these orders the mother be permitted to holiday with the child for a period of not more than half of the school holiday periods upon giving the father 7 days notice, with any time missed by the father to be made up following the time missed.
(n)	From grade 3, each alternate week of the school holidays being the first week in odd numbered years and the second week in even numbered years;
(o)	From grade 4, for one half of each school holiday period being the second half in even numbered years and the first half in odd numbered years, unless otherwise agreed in writing between the parents.
(4)	That unless otherwise agreed, changeover to occur at [omitted] and thereafter, if applicable, at school.
(5)	That the mother and father be entitled to telephone communication with the child from 5:30pm to 6pm on two days per week during such times as the child is not in their care.
(6)	That the mother and father:
(a)	Keep the other parent informed in writing at all times of the residential address and mobile telephone number and whom is living in the home with the parent at that time;
(b)	Keep the other parent informed in writing of the names and addresses of any treating medical or other health practitioner that treat the child and authorise any treating medical practitioner to release the child’s medical information to the other;
(c)	That the parents authorise, by this Order, the school/pre schools or kindergartens attended by the child to give each parent information about the child’s education progress and other related activities.
(7)	That the Mother and Father not use any illicit drugs or prohibited substances in the presence of the child or for twelve (12) hours before or during any period of time spent with the child.
(8)	That during the time the child is to spend with each parent that parent shall:
(a)	Respect the other parent’s privacy; and
(b)	Not denigrate or insult the other parent, partner or family members in the presence of or hearing of the child.
(9)	That upon the child commencing grade one either parent be at liberty to travel overseas with the child during school holiday periods save that the travelling parent shall provide a complete itinerary to the other parent including contact telephone numbers no later than 21 days prior to their departure.
(10)	That each parent sign all documents and perform all acts necessary to ensure that the child retains a valid passport, and if either party fails to sign such documents, then the Registrar of the Federal Magistrates Court of Australia at Brisbane is hereby appointed pursuant to the provisions of section 106A of the Family Law Act to execute such document on behalf of such party, with the passport to be retained by the mother and to be released to the travelling parent upon proof of compliance with the preceding paragraph and returned to the mother within 3 business days of the child returning to Australia.
(11)	That the commencement of the child’s overnight time with the father is conditional on the father completing an anger management course and Triple P parenting course and providing the mother evidence of completion.
(12)	That unless agreed in writing to the contrary the child shall attend [S] School, commencing prep in 2014.
(13)	That the Father pay the Mother’s costs of and incidental to this Application.
(14)	Such further or other orders as this Honourable Court deems appropriate.
Background
7.	The father who is 42 years of age is a [occupation omitted] running his own business on the Gold Coast.  He was born in France but came to Australia in 1995.  The mother who is not in paid employment is 39 years of age.  They commenced their relationship in early 2007, after finding each other through the internet, and separated in September 2009.  [X] was born [in] 2008.  They have each re-partnered and remain living on the Gold Coast.
8.	Prior to the father’s relationship with the mother he had been married twice.  His first wife who was also French returned to France after the parties had been together for about 9 years.  They did not have any children together.  The father then commenced a relationship with 
Ms C who gave evidence in these proceedings.  They were married in 2000 and separated in late 2006.  Together they had two children [A] who is 12 years of age and [B] who is 10.  They live with their mother in Newcastle but spend time with their father during the school holidays pursuant to parenting orders. 
9.	After his relationship with the respondent mother broke down in 2009 the father commenced a relationship with Ms D who also gave evidence.  They became engaged to be married but the relationship broke down on a final basis in January 2011.  They did not have any children together although at the time of their relationship break down Ms D was pregnant to the father.
10.	In the same month that the father separated from Ms D he formed a relationship with Ms G whom he had known for some time.  They are engaged to be married on [date omitted] 2012.  Ms G, who is also French, has two children [names omitted] who are 8 and 12 years of age respectively.  They live full time with their mother as their father lives in the United Kingdom.  They do not currently spend time with their father.
11.	The mother was also married before her relationship with the father.  Her first husband who is Greek lives in New York and their daughter, [Y] who is 11, visits him in the United States at least twice each year.  [Y] otherwise lives with her mother on the Gold Coast.
12.	In March 2010 the mother commenced her relationship with her current partner Mr S and they started living together a year later.  Although they do not have any children together Mr S has three adult children from his first marriage and two children from his second marriage.  These children, [C] and [D], are 12 and 11 years of age respectively.  [D] is in the same grade as [Y] at school.  They live with their mother and father in a form of shared care arrangement.
13.	On 5 May 2010 Federal Magistrate Spelleken made final orders by consent providing for the parties to have equal shared parental responsibility for [X] and for him to live primarily with the mother.  In accordance with the orders he was to spend time with his father from Sunday mornings to Monday afternoons and for seven hours on Wednesdays for the first three weeks of each four week cycle.  On the fourth week of the cycle he was to spend time with the father from Tuesday mornings to Wednesday afternoons and for seven hours on Fridays.
14.	The mother did not make the child available to the father following an incident between the father and his then partner Ms D on Boxing Day 2010 until interim orders were made by Federal Magistrate Slack on 18 March 2011.  These orders suspended the previous orders and in lieu thereof provided for the child to see his father for three hours each Wednesday and Sunday.  On 8 March 2012 I made orders by consent extending the child’s time with the father to nine hours on those days.  When the matter resumed before me on 24 April 2011 I was informed by consent of the parties that there had been two occasions of overnight time between the child and father upon the agreement of the parties since the making of the orders on 8 March.
Issues
15.	Whilst the significant issue for determination relates to an appropriate arrangement for the child to spend time with the father, a number of other issues remain outstanding between the parties.  I am asked to decide whether the mother should have sole parental responsibility or if they should continue to share their parental responsibility for [X].  There are also issues in relation to the care of the child in the mother’s absence, attendance upon anger management and parenting programmes and what school the child should attend.  
16.	In determining these issues I was particularly invited to consider evidence in relation to: the ability of the parties to effectively communicate for the benefit of the child; the allegations of anger management issues and violence on the part of the father toward his partners; and the ability of the child to cope with differing spend time with arrangements as he gets older.
The Evidence
17.	In support of his case the father relied on:
a)	His affidavits filed:
i)	27 January 2011;
ii)	14 March 2011;
iii)	26 May 2011;
iv)	14 February 2012; 
v)	5 March 2012; and
vi)	4 May 2010 (being from previous proceedings and limited to paragraphs 2 a, h and i.);
b)	The affidavits of Ms D filed:
i)	27 January 2011;
ii)	14 March 2011; and
iii)	24 February 2012;
c)	The affidavits of Ms G filed:
i)	26 May 2011; and
ii)	14 February 2012 .
18.	The father and his witnesses were cross-examined.
19.	In support of her case the mother relied on her affidavit filed 8 February 2012 as well as the following affidavits: 
a)	Ms L filed 8 February 2012;
b)	Mr S filed 8 February 2012;
c)	Ms C filed 14 February 2012;
d)	Ms R filed 14 February 2012; and
e)	Ms S filed 15 March 2011 (limited to paragraph 9 and Annexure B).
20.	The mother, Ms C and Ms L were cross-examined.
21.	Three reports were in received into evidence as follows:
a)	Affidavit of Ms W filed 27 May 2011;
b)	Affidavit of Ms P filed 7 March 2012;
c)	Report of Dr H dated 6 November 2011 – Exhibit C1
22.	Ms P was cross-examined.
23.	A number of other documents were also tendered into evidence:
a)	Letter of Mr M dated 5 February 2012 – Exhibit M1;
b)	Photograph of Ms D – Exhibit F1;
c)	Notes from Dr E – Exhibit F2;
d)	Paragraph 33 of the Affidavit of Ms C filed 29 January 2007; and
e)	Application for protection order dated 9 July 2007.
24.	During the course of the hearing it became clear that a number of factual issues were in dispute.  I do not propose to address all of them save where I consider it necessary to explain my reasons.  Any reference to a fact in these reasons should be regarded as a finding of fact unless a contrary intention is clear from the context.
Issue as to Anger Management
25.	The mother’s reluctance to agree to increased time between the child and his father has been predicated largely, although not solely, upon her concerns that the father has unaddressed anger management issues.  She fears that if these issues are not addressed the child’s emotional health and physical safety will be compromised.  The father has denied there is any substance to the mother’s concerns.
26.	The mother gave evidence of her relationship with the father being characterised by ongoing aggression and abuse directed towards her by the father.  She described incidents of the father reading her text messages and accusing her of having affairs.  According to the mother the night before they separated they had been at the father’s [business] for a special event.  She left to go home before him.  Upon his return to their home the father began to yell and scream at her waking [X].  She said she was scared.  At one point in the night he woke her by poking her in the back telling her to “get down stairs now” and then verbally abusing her for approximately three hours.  She left the home with the children at around 5am to stay with a friend and later that day told the father to leave the home which he did two days later.
27.	The father denied being aggressive and abusive towards the mother although he did concede that he could be expressive at times.  In relation to the incident at separation he admitted poking the mother in the back in order to get her to engage with him in discussion and that they argued.  He said she was extremely intoxicated that evening.
28.	In relation to this incident I am satisfied the parties had an argument in the early hours of the morning and were loud in their exchanges. This argument occurred with both [X] and [Y] in the home.  The mother told Ms W the verbal abuse continued for four hours and Ms P two and a half hours.  Her affidavit said three hours.  I am sure that the argument appeared to her to go on for a long period of time but I am not persuaded the mother’s recollection of this event is accurate.  I prefer the evidence of the father in relation to this incident.
29.	Whilst the father might minimise the way he has communicated with the mother as being “out there” I am satisfied that the mother would have perceived the father as being aggressive towards her from time to time.  This was certainly the case after they had separated as can be seen from the exchange of text messages annexed to the mother’s affidavit in the context of a dispute between them in relation to the return of the child to the mother in March 2010.  Whilst such aggressiveness would have been unpleasant for the mother I am not satisfied there is sufficient evidence for me to conclude that she would have been reasonably fearful or reasonably apprehensive for her personal wellbeing.  Having said that there can be little doubt that she would have been concerned as to how they as parents of [X] were going to be able to effectively co-parent in an amicable way.
30.	The mother’s concern for the child’s welfare with the father has also been influenced by what she has been told by Ms C and Ms D.
31.	Ms C gave evidence in these proceedings of a violent incident she said took place when she told the father that she had decided to separate from him at the end of 2006.  She described a heated argument between them whilst their children were sleeping.  After she told the father she intended to call the police he threw their mobile phones to the ground and pulled the home telephone line out of the socket.  He grabbed her by the upper arms and pinned her to the ground before attempting to strangle her by putting his hands around her neck.  
32.	In her affidavit filed in the Family Court of Australia on 29 January 2007 Ms C gave a different account of this event.  There was no mention of any attempt to strangle her and she described being thrown to the ground on three occasions.  Her evidence on that occasion was also different in many other respects including in relation to what the father is supposed to have done with the phones.  She also gave evidence of having thrown a glass decanter at the father which was not mentioned in her affidavit filed in these proceedings.  The January affidavit was used in interim proceedings in the Family Court where the father sought and obtained orders for Ms C to return their children to the Gold Coast pending a final hearing.  
33.	On 3 August 2007 Ms C gave another account of the events in a solemn declaration in an application for a protection order.  There was no mention of an attempt to strangle her.  The description of being thrown to the ground was inconsistent with the January affidavit. This time she accused him of putting his hand over her mouth.  Her evidence as to the phones was different to that given in the two affidavits and although she mentioned throwing a glass decanter she also gave evidence of grabbing a  knife from a knife block in self defence before throwing the whole knife block away from them.  Ms C did not pursue the application for a protection order and it was subsequently dismissed.
34.	When cross-examined Ms C was not able to satisfactorily explain why her various pieces of testimony were so materially different from each other.  I find she was not a witness of credit and do not accept her evidence including the evidence where she alleged the father had been violent to their children.  I note she and the father have recently settled new parenting orders providing for the children to spend time with the father during school holidays.  
35.	The father denied the allegations of violence.  He gave evidence of an argument after he told Ms C that he wanted them to separate and that he drove the mother and children to the airport the following morning for a pre-arranged holiday in Newcastle from which Ms C did not return until ordered by the Family Court.  I accept the evidence of the father over that of Ms C.
36.	Ms D is another person who has not always told the truth in describing her relationship with the father.  On Boxing Day evening 2010 the police were called to the apartment where the father and Ms D were living.  [X] was with them that night.  The mother gave evidence of having received a text from Ms D at 8.48pm that evening saying:
	“Help, help me he has gone crazy again, please help.”
37.	The mother had been anxious that day about [X] being with the father as he had been unwell with a fever and vomiting on Christmas Day but had complied with the orders for him to spend time with the father at the father’s insistence.  She set out in her affidavit a number of text messages between the mother and Ms D between 8.48pm and 11.38pm in which Ms D told the mother a number of concerning things about the father’s conduct towards her including that he had grabbed her around her neck and tried choking her.  When the police arrived they handed the child to the mother.  The father was taken away by the police.  Ms D spent the night at the home of the mother’s partner. 
38.	The mother described observing red bruising around Ms D’s neck which Ms D said was as a result of the father attempting to grab her by the neck and pushing her up against the kitchen cupboard where he held her and tried to choke her.  The child who had been asleep had woken during this incident and began crying.  
39.	Ms D spent three hours talking to the mother and Mr S about the father’s treatment of her including an incident that was supposed to have taken place three days earlier where the father had tried to suffocate her by placing a cloth in her mouth and his hand over her nose whilst trying to choke her with his other hand and hitting her head against a lounge causing considerable injury to her neck.  She also accused the father of using cocaine regularly and that she had obtained a protection order against him previously.
40.	By 30 December Ms D had sent the mother a message stating she would be standing by the father.  In March 2011 the mother had a further conversation with Ms D in which she alleges Ms D told her that the father had threatened to kill her.
41.	Ms L, the maternal grandmother, gave evidence of observing what she would describe as red welts on both sides of Ms D’s neck when she saw her on the morning of 27 December 2010.  She also gave evidence of a conversation she had with Ms D that morning where she was told that a few weeks earlier the father had attempted to throw Ms D out of a moving car and that he tried to smother her mouth with a cloth.  During cross-examination she maintained her observation of the red welts even when shown the police photo of Ms D.
42.	Mr S in his affidavit had described observing red bruising to Ms D’s neck.
43.	In her evidence, Ms D’s description of the events of the evening was not consistent with the text messages between herself and the mother or with what the mother, maternal grandmother and Mr S depose to her telling them.  She said that during the course of an argument they both became emotional and at one point she approached the father to give him a hug and he pushed her away.  She denied that the father attempted to strangle her or choke her.  She also said that the child did not wake up at all during the evening and was handed to the mother still asleep.
44.	The father accepted there was a heated argument between the pair but denied pushing Ms D up against the kitchen cupboard but he conceded she locked her self in the bathroom during their argument.  He also said the child did not wake up during the dispute.
45.	I accept the evidence of the mother, the maternal grandmother and 
Mr S as to what Ms D had told them but I find that she exaggerated and lied about the incident.  Having said that I am not persuaded the evidence she and the father gave were accurate recollections of the events of that evening with both of them minimising the extent of the dispute.  Although the photograph, taken the following day by the police, clearly shows red marks to Ms D’s neck the marks do not appear to be red welts as described by the maternal grandmother and on balance I am not satisfied there is sufficient evidence to find the father attempted to strangle or choke her.
46.	Whilst the father has asserted the mother and Ms C have conspired to embellish a story of him being aggressive and violent to further their own interests in their respective proceedings I am not persuaded that is the case.  The mother appeared to be genuinely concerned for the welfare of the child and has no doubt been influenced by what she has been told by Ms C and Ms D.  Unfortunately they have not been truthful in their accounts.  They have, in my view, embellished stories of arguments with the father making them more dramatic than the reality would have warranted.  That is not to say however that they did not have heated arguments with the father. I am persuaded that he has been angry at or around his partners from time to time and has expressed that anger in volatile ways which would have led the partners to be fearful or at least concerned for their welfare.  I am therefore satisfied that the father has had anger management issues which if not addressed could potentially harm the child if he is exposed to it.
47.	I take some comfort from the evidence of Ms G.  Ms G and the father are to marry on [date omitted] this year and have been together since January 2011. Although the father has moved on to new relationships very quickly after separating from former partners I am persuaded he has established a stable relationship with Ms G. She gave evidence of not observing any aggression or violence from the father during their relationship and had no concerns for his care of his or her children. 
Ms G impressed as someone who would not tolerate any aggressive behaviour from a partner.  I accept her evidence.
Father’s Mental Health
48.	The mother has been and remains concerned that the father has an underlying mental health issue, possibly bipolar disorder, which has not been addressed.  Her evidence was that the father saw Dr E, psychiatrist in late 2009 when the parties were experiencing difficulties with their relationship and had been having counselling with Ms K.  She told Ms W that Dr E suspected the father suffered from bipolar affective disorder.  The notes from Dr E however do not support the mother’s assertions rather they show that from what the mother had told him the issue of bipolar disorder was possible but he could not find any evidence of a psychiatric disorder on the two occasions he saw the father.
49.	Dr H who undertook a psychiatric assessment of the father for the purposes of these proceedings opined:
	Mr Bertrand has long-standing personality vulnerabilities of an obsessive-compulsive, and narcissistic type.  These lead him have  some recurrent difficulties in his interpersonal relationships and may have played a part in the end of his previous intimate relationships.  It is not clear to what extent it has affected his professional relationships.  It is not clear whether these vulnerabilities are at the level of personality traits or full personality disorder.
	In the context of overwork (one of his coping strategies) and financial pressures associated with his business there may have been an exacerbation of his underlying personality vulnerabilities and rigid coping style.
	There is no evidence that strongly suggests the presence of a bipolar disorder.  By his age, in general, there would have been more contact with mental health services or other professionals and more significant periods of occupational dysfunction if he suffered from a significant bipolar illness.
	It is possible for people to have mild variants of bipolar disorder and not come to clinical attention, however in my opinion his personality vulnerabilities more than explain some of the difficulties he has encountered in his relationships.
	Individual such as this man can at times be oblivious to the effects of their actions on others.  I do not have enough independent information to be clear about the nature of the incident with his ex-partner in front of the child.  It seems most likely that he has a good intellectual appreciation of the possible effects of this but may lack some emotional insight at times.
	Currently there is no clear psychiatric reason why I would recommend limiting or supervising his time with his child.
50.	Dr H recommended that the father would benefit from prolonged psychological therapy focusing on his insight into his pattern of interpersonal relationships but said that this was not essential.
51.	There is no evidence that would lead me to conclude the father suffers any psychiatric disorder.
Legal Principles
52.	All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part and must consider the best interests of the child as the paramount consideration.  
53.	The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.  Section 60B(2) sets out the principles underlying those objects.  Unless it would be contrary to a child’s best interests the principles are:
a)	Children have a right to know and be cared for by both their parents; 
b)	Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)	Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)	Parents should agree about the future parenting of their children; and
e)	Children have a right to enjoy their culture.
54.	The legislative framework which must be followed in all parenting cases, mandates 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.  This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.
55.	In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents.  In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.  If the court finds that equal time is not in the child’s best interests or  that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.
Determining the best interests of the child – the s.60CC considerations
56.	The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC.  In order to limit duplication I propose to group together a number of these factors. 
The children’s relationships
S.60CC(2)(a) 	The benefit to the child of having a meaningful relationship with both of the child’s parents;
S.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);
S.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;
S.60CC(3)(d)  	The likely effect of any changes in the child’s circumstance, 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
57.	The proposals of each party will ensure that the child develops and maintains a meaningful relationship with both his parents.  They differ however on what is optimum for this child in that regard.
58.	Historically the child has always lived with his mother and there can be no doubt that she has been his primary carer.  Soon after separation he spent significant time with his father including overnight time notwithstanding his very young age at the time.  
59.	The mother gave evidence of the child being distressed and unsettled from time to time after spending time with the father especially in late March 2010 when the father retained the child for two consecutive nights.  Between the end of January and this incident the child had not previously spent more than one night at a time with the father.  The mother said on this occasion the child became extremely upset and anxious if she was out of his sight.  The father said he did not observe any difficulties when the child was with him.  Even if the father is correct in that I accept the evidence of the mother as to the child’s distress at the time.  Given his young age it is not surprising he reacted badly to being away from his mother for the two nights.  
60.	Indeed some of the difficulties observed by the mother may have been avoided if the child’s contact with his father had progressively increased in time over a longer period.  
61.	The mother’s decision to withhold the child from spending time with the father after the Boxing Day incident may also have had a detrimental impact of the child’s relationship with the father although I note the mother observed a settling in the child’s behaviour.  The re-introduction of time, albeit for short periods of time appear to have fortunately resolved any compromising of the father/son relationship given the observations of both Ms P and Ms W.
62.	Ms W observed the child to be secure and content with his father and family.  Ms P gave evidence of observing the father and child together and forming the view that the child had a very strong attachment with his father.  She observed them to be spontaneously affectionate with each other and very close.  
63.	From March 2011 until recently the child transitioned from his mother’s care to his father at the home of a day care mother, Ms R. 
Ms R gave evidence of the child initially crying when he had to go to his father and there was one morning when he would not go however in the afternoon the parties tried again and he reluctantly went to his father.  However over time with coaxing from his mother the child adjusted well.  She observed that upon his return from time with his father the child would give him a kiss and a cuddle and say goodbye and upon greeting his mother he would tell her what he had done whilst with his father.
64.	Both report writers also reported the mother/child relationship to be close with secure attachment.
65.	I am satisfied the chid has a close and loving relationship with both parents.  He would identify his mother as his primary carer but also has a secure attachment with his father.  He would also have a close relationship with the maternal grandmother given her involvement in his care throughout his life.  There is no suggestion that he has anything other than a good relationship with his older sister.  The relationship he has with his brothers though would not have developed to the same extent given he only sees them during their school holidays.  He is also developing his relationships with the partners of the parents.   
66.	In her report  Ms P reported the mother as saying:
	“………I wish I had never met him and I wish that [X] was Mr S’s ……he (Mr Bertrand) is not a good father and he is an awful person to have to deal with on a weekly basis … I really hope they go back to France and leave [X] here … I bend over backwards for [name omitted] and [Y] to have a relationship but [Mr Bertrand] is such a con artist.”
67.	Such comments give cause for concern that the mother might not be able to bring herself to foster a positive father/son relationship.  Whilst I am sure the mother does truly wish she never met the father and would prefer not to have to deal with him on a regular basis I am satisfied she is able to put her personal views aside and accept for [X]’s sake that he should have a relationship with his father. She is protective of her son and wants to be sure he is safe in his father’s care.  It is for this reason as well as a desire to ensure the time spent is not increased at a level the child is unable to cope with that motivates her to seek orders that are much more conservative than what the father would like.
68.	The mother remains concerned about the child coping with overnight time although she did agree for the child to spend two non-consecutive nights with the father in April this year.  The father reported no difficulties but the mother was silent on how the child coped when returned to her.  Ms P had no concerns for the child spending overnight time with his father but recommended a gradual increase in time spent to enable the child to adjust to the different care arrangements.  She was particularly concerned about what message the child might take from having spent some overnight time with the father and then not having any more.  In her view the child would benefit from ultimately spending five nights a fortnight with his father but that should be achieved gradually over a two year period.
Risk of harm
S.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
S.60CC(3)(j)  	Any family violence involving the child or a member of the child’s family
S.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;
(ii) 	The making of the order was contested by a person
69.	I have already addressed the factual dispute in relation to the allegation of the father having anger management issues and being violent to former partners.  The evidence in support of the allegations lacked credit such that I am unable to make a finding that this child would be at risk of harm from being exposed to family violence if he was being cared for by the father.  Even if there was some truth to the allegations of past behaviour I am satisfied that as the father appears to have settled into a more stable relationship with Ms G any risk would be minimal.
70.	The mother would receive some comfort if the court was to order the father to complete an anger management course prior to any overnight time commencing.  She was particularly concerned that the risk for the child was greater of an evening because in her mind if the father was to become volatile he was more likely to do so of a night.  Whilst some of the allegations raised in the mother’s case relate to events that were said to have occurred in the evening I am not satisfied that the risk of volatility in a person with anger management issues would of itself be greater at different times of the day or night.  
71.	I accept the father’s evidence that he has attended an anger management course through Relationships Australia although it appears he did not complete that course.  Ms P was of the view that the father would benefit from counselling rather than an anger management course.  In her view he needed to work with a therapist to address his personality traits and behaviour that are problematic for others and his on-going capacity to manage any personal frustrations.  She recommended that her report be made available to the therapist.
72.	The father had counselling with Mr M between 2008 and 2010.  In a letter dated 24 May 2011 Mr M wrote that the father had “positive regard for others, and an ability to self review and learn from his experiences.” 
73.	Whilst I agree with Ms P that the father would benefit from ongoing professional assistance I do not consider it necessary to make his attendance upon such a therapist a condition precedent for him spending time with the child whether that be by way of day only or overnight.  If he had not have formed a stable relationship with Ms G I may have come to a different conclusion.  
74.	For these reasons I will not make the order sought by the mother requiring the father to complete an anger management course and a parenting course prior to any overnight time commencing. 
The child’s views
S.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
75.	Given the young age of the child his views were not canvassed by the report writers and would not be a factor in determining his best interests.
Practical difficulties
S.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
76.	The parties live in close proximity to each other and therefore there will be no issue in relation to the expense of ensuring the child spends time with the father.  In the past the parties have needed the assistance of Ms R to assist with handovers given the animosity between them.  Fortunately they have been able to move on from that now and have agreed to affect handovers at each other’s residences.
Parental capacity and responsibility
S.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  
S.60CC(3)(i)  	The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
S.60CC(4) 		The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent
77.	There is no evidence to suggest that either parent would be unable to meet the child’s day to day needs such as ensuring he is properly fed, housed and clothed.  Although the mother raised issues as to the father’s commitment to appropriate supervision and dangerous driving I am not satisfied there is sufficient evidence in this regard to cause me to find the father lacks capacity to appropriately care for the child either on a short term basis or for extended periods.  
78.	Ms W reported that she observed the father to be particularly nurturing of [X] when he was sick and appropriately supported by his partner.
79.	Each party is critical of the other in relation to meeting the child’s emotional needs particularly in relation to how the child is to spend time with the father and therefore away from his mother.  Both parents could have handled this issue better but I am of the view that they have both now been assisted by the reports of Ms W and Ms P and are better able to appreciate the importance of ensuring the child’s relationship with each parent is not compromised.  Having said that they are still in disagreement as to the appropriate arrangements for the child.  This in my view is more as a result of the father’s keenness to have as much time with the child as possible and the mother’s desire to ensure the child is safe and appropriately cared for.  
80.	Exposing the child to ongoing conflict will not meet the child’s emotional needs.  The parties arranged for Ms R to accommodate the handovers for about a twelve month period which was a child focused way of ensuring the child did not observe the parties in conflict.  The child’s exposure to the conflict between the father and Ms D on Boxing Day 2010 was an example of his emotional needs not being met.  Given the father’s current relationship appears to be stable and without inappropriate conflict I am confident the child’s emotional needs will be met by the father in the future.
81.	They are otherwise able to meet the child’s emotional and intellectual needs as would the maternal grandmother and the partners of the parties.
82.	The father does not appear to have provided financially for the child to the same extent as the mother in that he has paid minimal child support.  Notwithstanding this there is no suggestion the child has done without.  I am confident each parent will provide for his needs.
Background issues
S.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
S.60CC(3)(h)  if the child is an Aboriginal child or Torres Strait Islander child
83.	This child’s father and future step-mother are French.  They have much to offer him in enabling him to develop his understanding of the French culture.  French is spoken in the home which will provide him a great opportunity to learn French naturally as well as English.  Increasing his time with his father will assist with this.
Limiting further proceedings
S.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
84.	The mother argued there was a risk of further proceedings if orders were made for the parties to share parental responsibility given the history of conflict between them.  For the reasons I will discuss below I am not persuaded this will be the case although I understand why she lacks confidence in this regard.
Presumption of Equal Shared Parental Responsibility
85.	Given my findings in relation to family violence I am not persuaded the presumption has been displaced.  The mother however seeks a sole parental responsibility order in her favour whereas the father seeks equal shared parental responsibility.
86.	For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.  Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.  When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.  A major long-term issue in relation to a child means an issue:
	about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
	(a) the child’s education (both current and future); and
	(b) the child’s religious and cultural upbringing; and
	(c) the child’s health; and
	(d) the child’s name; and
	(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
87.	These are important issues that will arise from time to time although the issue of the child’s school will be determined in this judgment. 
Ms P expressed concern that there is a risk of detrimental outcomes for children if parents can not co-operate in making decisions for them.  On the other hand she said it was absolutely critical for children to observe their parents making decisions jointly for them. Such observation in her view would underpin better outcomes for children.
88.	The mother argued that the parties have been unable to communicate effectively in the past and that there is little likelihood of that improving to such an extent that they will be able to make effective decisions for the child.  In her view the fact that they have not been able to agree on which school the child attends is a perfect example of the ongoing difficulties she is likely to face.
89.	The father argued on the other hand that despite the past difficulties which he conceded they have been able to reach agreement from time to time a recent example of which was for the child to spend some overnight time with him despite there being no provision for such time in the current orders.  Whilst that is not an example of a long term decision it gives me some hope they will be able to put aside their dispute in the future and communicate more effective for the child’s benefit.
90.	There is much merit in the mother’s argument given the past history of conflict but I remain confident that with orders in place resolving their dispute as to what time the child should spend with the father and which school he should attend they will be able to communicate more effectively.  When I weigh that up with Ms P’s evidence that children benefit from observing their parents making joint decisions about them I am persuaded that they should share equally parental responsibility for the child.
91.	The orders sought by the father would be appropriate.
Consideration of Equal Time or Substantial and Significant Time
92.	Neither party sought an order for the child to live in an equal time shared care arrangement.  They each however proposed arrangements that would achieve substantial and significant periods of time between the child and father.  Given his young age there needs to be put in place a gradual staged up process so as to ensure his time with either parent is not compromised.
The child’s School
93.	The parties jointly enrolled the child in [S] School when he was born.  Although the father initially denied that, he conceded that must have been the case when he was shown a copy of the application.  [X] is due to commence prep in 2014.
94.	Although the father would now prefer [C] School there is insufficient evidence for me to make a finding that his choice of school is to be preferred over [S] School. Given both parties signed an enrolment form for [S] School I propose to order that he attend there.
Discussion
95.	When I take into account the matters considered above I find that it would be in this child’s best interests to move to regular overnight time now.  Although the mother sought to delay the start of regular overnight time until October this year I am not persuaded that is necessary.  It was the mother’s view that by the child having reached four years of age in August and the father marrying in [omitted] the time would be right to commence the regular overnight time.  The child’s relationship with his father is strong, the father appears to be in a stable relationship and the child has had the benefit of spending a couple of overnights with his father recently without any evidence of difficulties.  I am therefore persuaded the time is right for the overnight time to commence.
96.	Mindful of the evidence of Ms P as to the importance of ensuring any increase in time for the child is implemented on a gradual basis I propose to commence the father’s overnight time limited to one night each week.  He currently spends each Sunday and Wednesday with his father from 9am to 6pm.  For a period of six months I propose to order the child spend overnights with the father on the Sundays and to continue the day time periods on the Wednesdays.  The child should be returned to the mother by 9am on the Monday mornings initially so that he is not away from his mother for too long.
97.	After this first period it would be appropriate to enable the mother to have at least one weekend in every four where she is able to have a whole weekend with the child and to accommodate that I propose to order in the fourth week the father’s time with the child be from the Monday to the Tuesday.  It would also be appropriate at this stage to extend the father’s time so that the child is returned at 6pm on the second day rather than at 9am except on the Tuesdays which would remain at 9am.  The reason for not extending the time on the Tuesday is that I propose to maintain the Wednesday day time periods and it may overwhelm the child to be spending three days in a row away from his mother at this stage.  Therefore for a period of six months I propose to order the child spend time with the father from 9am Sunday to 6pm Monday for three weeks out of every four and in the fourth week from 9am Monday to 9am Tuesday as well as every Wednesday from 9am to 6pm. 
98.	By May 2013 it would be appropriate to alter the child’s time with the father to accommodate two consecutive nights to help transition him to longer periods away from his mother.  This would also be an appropriate time to move to a fortnight regime so that he is well and truly settled into a regular arrangement prior to commencing school.  I will make orders that would enable the child to spend from Sunday morning to Tuesday afternoon in the first week and from Monday morning to Tuesday afternoon in the second week.  As this arrangement will provide for three full days in the first week and two full days in the second week I do not propose to continue the Wednesday day periods.  This arrangement should then continue until the child commences his prep year at school. 
99.	From the commencement of his prep year at school he should spend another night with his father so that he is with his father from Sunday morning to before school Tuesday in one week and from afterschool Monday to before school Wednesday in the other week.  Once he has had an opportunity to settle into school it would be appropriate to increase his time to five nights a fortnight with the father.  To achieve this I propose to order the time in week one be extended to before school Wednesday from the commencement of term two in his prep year.
100.	The father had sought a total of six nights in every fortnight once the child had commenced his schooling.  The mother sought a total of three nights in his prep year and four nights from his first year of school. 
Ms P recommended up to five nights a fortnight.  I am of the view that the gradual changes in the arrangements that I have set out above will provide an opportunity for the child to develop and maintain his relationship with the father to ensure it remains a meaningful one and at the same time not compromise his relationship with his mother and sister.  Brown J in Mazorski v Albright emphasised that meaningful in this context is a qualitative term not necessarily a quantitive one.  With respect I agree.  It is more important to consider the way in which the child will be with one parent and therefore away from the other parent than focusing solely on the number of hours that that involves.  On balance I have concluded that this child’s best interests will be served by ultimately spending five nights a fortnight with the father by the time he is settled in school.  I have not included whole weekend time for the father given the nature of his work commitments.
101.	The father sought half of the school holidays from 2013 even though the child will not be attending school until 2014.  I am not persuaded this would be in the child’s best interests.  The mother set out a graduated increase in time for the school holidays commencing 2014.  It was not until the child was in year 4 that the mother proposed he spend half of the school holidays with each parent in one block.  The mother has by proposing this arrangement continued to approach the child’s time with the father in a conservative fashion.  I do not consider it necessary to take such a conservative approach.
102.	I am of the view that once the child commences his prep year at school he spend a block of four consecutive nights with the father in each of the school holidays at the ends of terms one, two and three and for five consecutive nights each fortnight during the end of year school holiday for the first year.  In year one the periods of time should increase to provide for a week at a time and by year two for one half of each of the school holidays.
103.	The mother’s partner has holiday homes interstate and she would like to take the child on holidays during the school holidays which will be difficult given the orders I propose to make do not make provision for school holiday time until he reaches his prep year at school.  I am satisfied that the child would benefit from holidaying with his mother, sister and his mother’s partner.  It is necessary however for the child to have make up time with his father.
104.	The father is to marry his partner on [date omitted] this year at [omitted].  This will be a joyous occasion in which the child should take part.  I am satisfied the father will ensure a responsible adult is always caring for the child during the festivities.  For this weekend I will make provision for the child’s time with the father to commence on the Saturday rather than the Sunday and conclude on the Sunday evening rather than the Monday morning. 
105.	The father sought an order that the child be cared for by him in the event of the mother travelling outside of Australia for a period in excess of seven days.  The mother regularly travels to the United States to ensure her daughter spends time with her father.  [X] has been cared for by his maternal grandmother when this has occurred in the past.  He would be familiar with this arrangement.  Whilst there is merit in the father’s argument especially once the child has been spending significant block periods during school holidays from 2015 onwards, I am of the view that the child’s relationship with his grandmother is important and he would benefit from spending the time with her.  He would of course continue to spend time with his father in accordance with the orders.  
106.	The mother also sought an order in relation to the child’s passport.  She would like to be the custodian of it whereas the father sought an order for his solicitor to retain it.  The parties had agreed to an order that once the child commenced year one either parent would be at liberty to travel overseas with the child during school holidays subject to the provision to the other parent of itineraries and contact details.  Given their agreement to this order and as I do not consider the mother to be a flight risk with the child I see no reason to involve the father’s solicitor in the safe keeping of the passport.  I will make the order sought by the mother.
107.	The mother sought an order restraining each of the parties from consuming illicit substances prior to and during the time in which they are caring for the child.  Whilst I share the sentiment of the mother in this regard there is no evidence of illicit substance use by either party warranting the injunctive relief sought by her.  The mother had been told by Ms D that the father used cocaine but given the lies Ms D has told the mother I have little trust as to the accuracy of the accusation.
108.	For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Date:  18 May 2012