FAMILY COURT OF AUSTRALIA

ROSE & ROSE	[2015] FamCA 200	

FAMILY LAW – CHILDREN – Final Orders – Parental responsibility – With whom a child lives – Where the child has lived with the father since separation –  Where the mother suffers from various mental health conditions including depression and anxiety – Where the mother’s mental health issues had stabilised by the time of trial – Where the issue of the child’s schooling is unresolved between the parties – Consideration of the child’s best interests – Orders made for equal shared parental responsibility and that the child live with the father and spend substantial and significant time with the mother – Order made that the child attend kindergarten at L Town and in default of agreement be enrolled at L Town Primary School once the child reaches school age. 

Family Law Act 1975 (Cth) – ss, 60B, 60CC, 61DA, 65DAA and 69ZN
Family Law Rules 2004 (Cth) – r 15.13
AMS v AIF (1999) 1999 CLR 160
MRR v GR (2010) 240 CLR 461
U v U (2002) 211 CLR 238

	

APPLICANT:	Ms Rose	

RESPONDENT:	Mr Rose	

Independent children’s lawyer:	Legal Services Commission of SA	

FILE NUMBER:	ADC	4024		of	2012	

DATE DELIVERED:	27 March 2015	

PLACE DELIVERED:	Adelaide	

PLACE HEARD:	Adelaide	

JUDGMENT OF:	Berman J	

HEARING DATE:	23 - 26 February 2015 and 4 March 2015	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Britton	

SOLICITOR FOR THE APPLICANT:	CM Tucker and Assocaites	

COUNSEL FOR THE RESPONDENT:	Ms Tinning	

SOLICiTOR FOR THE RESPONDENT:	Mason Westover Homburg	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Boehm	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission of SA	

Orders
(1)	That the parties have equal shared parental responsibility for B born …2011 (“the child”).
(2)	That until the commencement of the 2016 academic year the child shall live with the mother as follows:-
(a)	from 10am Friday  to 10am Monday of each alternate week;
(b)	from 10am on Tuesday until 5pm Wednesday of the intervening week.
(3)	That from the commencement of the 2016 academic year the child shall live with the mother as follows:-
(a)	from 10am (or the commencement of kindergarten) Thursday to 10am Monday of each alternate week;
(b)	from 10am (or the commencement of kindergarten) Tuesday to 5pm Wednesday of the intervening week;
(c)	for the first week of each short term vacation from 5pm on the last day of the school term until 5pm on the following Saturday;
(d)	During the Christmas school vacation period from 5pm on the last Friday of the school term to 5pm on the following Friday and on alternate weeks thereafter.
(4)	That from the commencement of the 2017 academic year the child shall live with the mother in each alternate week as follows:-
(a)	from the conclusion of school Thursday to the commencement of school on the following Tuesday;
(5)	That notwithstanding any other order herein the child spend time with the parties as follows:-
(a)	For Easter in 2015 and each alternate year thereafter:-
(i)	 with the father from 4pm Easter Thursday until 4pm Easter Saturday; and
(ii)	with the mother from 4pm Easter Saturday until 4pm Easter Sunday.
(b)	For Easter in 2016 and each alternate year thereafter:-
(i)	with the mother from 4pm Easter Thursday until 4pm Easter Saturday; and
(ii)	with the father from 4pm Easter Saturday until 4pm Easter Monday;
(c)	For Christmas in 2015 and each alternate year thereafter:-
(i)	with the mother from 12 noon Christmas Eve until 3pm Christmas Day;
(ii)	with the father from 3pm Christmas Day until 6pm Boxing Day.
(d)	For Christmas in 2016 and each alternate year thereafter:-
(i)	with the father from 12 noon Christmas Eve until 3pm Christmas Day;
(ii)	with the mother from 3pm Christmas Day until 6pm Boxing Day;
(e)	On Father’s Day each year with the father from 10am until 6pm;
(f)	On Mother’s Day each year with the mother from 10am until 6pm.
(6)	If a parent would not otherwise spend time with the child at all on the child’s birthday THEN with that parent for a period of two hours at times to be agreed between the parties and in default of agreement from 4pm to 6pm.
(7)	At such other times as may be agreed.
(8)	That the child will live with the father at all other times.
(9)	That the time that the child spends with the mother as set out in paragraph 2 (a), (b) and 4 (a) shall be suspended where it coincides with any period of the child’s school holidays.
(10)	That any handover that does not occur at the child’s kindergarten or school as the case may be shall take place at the mother’s residence at the commencement of the child’s time with the mother and at the father’s residence at the conclusion of the child’s time with the mother or at such other place and under such other arrangements as the parties may agree.
(11)	That each party do advise the other of any serious or significant illness or injury suffered by the child whilst in the care of that party as soon thereafter as is reasonably practicable.
(12)	That each party do comply with any medical treatment for the child including the administration of medication recommended or prescribed by a medical practitioner AND a party who has medication that has been prescribed for the child shall deliver that medication to the other party at handover.
(13)	That the mother be at liberty to receive from the child’s kindergarten or school as the case may be any school reports, newsletters and other materials normally sent to the child AND that the father will do all things necessary to provide all such appropriate authorisation to the school to release information to the mother but in particular that the mother be recorded as the child’s parent and as an emergency contact person.
(14)	That the mother be at liberty to attend any functions at the child’s kindergarten or school to which parents are normally invited.
(15)	That the parties be at liberty to attend at any sporting or other extra-curricular activities of the child to which parents are normally permitted to attend.
(16)	That the parties do all things necessary to jointly enrol the child in the L Town Kindergarten and to the extent that they are able to do so, at the L Town Primary School.
(17)	That the order for the appointment of the Independent Children’s Lawyer be forthwith discharged.
(18)	That all matters be removed from the Pending List of Cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rose & Rose has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Family Court of Australia at Adelaide	

FILE NUMBER: ADC 4024  of 2012

Ms Rose 	
Applicant

And

Mr Rose 	
Respondent

REASONS FOR JUDGMENT
introduction  
1.	By Amended Initiating Application filed 11 November 2014, Ms Rose (“the mother”) sought parenting orders in respect of B born in 2011 (“the child”).
2.	On 26 February 2014 being day four of the hearing, an application was made by counsel for the mother for leave to amend the orders sought in her Amended Application.  The application for leave was not opposed and accordingly the mother now seeks the following orders:-
(1)	That the parties have equal shared parental responsibility for the child.
(2)	That until the child commences formal school education she shall live with the mother as follows:-
(i)	in week one from 10am Tuesday to 5pm Wednesday and from 10am Friday to 10am Monday and each alternate week thereafter;
(ii)	in week two from 10am Tuesday to 5pm Thursday and each alternate week thereafter.
(3)	From the commencement of the 2017 academic year:-
(i)	in week one from after school Friday to the commencement of school on Monday or 10am if not a school day and each alternate week thereafter;
(ii)	in week two from the conclusion of school on Tuesday to the conclusion of school on Wednesday.
(4)	That the child live with the father at all other times.
(5)	During the school holidays from 2pm Christmas Eve until 2pm Christmas Day and one half of all school holidays as may be agreed.
3.	The effect of the orders is that before the child commences formal school education in 2017 she will live with the mother initially for six nights a fortnight and thereafter five nights a fortnight.
4.	Mr Rose (“the father”) opposes the orders sought by the mother and importantly seeks orders that he have the sole parental responsibility for the child, that she live with him and spend time with the mother, but until the child commences school as follows:-
(a)	From 10am (or the conclusion of kindergarten on Tuesday until 6pm on Wednesday of each week;
(b)	Each alternate weekend from 3pm Friday to 6pm Sunday;
(c)	At such other times as may be agree between the parties.
5.	Upon the child commencing school as follows:-
(i)	Each Tuesday from 3pm (or the conclusion of school) until 6.30pm that day;
(ii)	Each alternate weekend from 3pm (or the conclusion of school Friday) until 6pm (or 6pm Monday during school holidays) and at such other times as may be agreed between the parties.
6.	The effect of the orders sought by the father is that until the child commences school she shall spend four nights a fortnight with the mother and thereafter, three nights a fortnight.
7.	The father also seeks orders that regulate the arrangements for the child spending time with each of the parties for Easter, the Christmas period and other specific issues orders.
8.	It is not proposed by the father that there will be any extended time for the child to spend time with the mother during holiday periods.
9.	By Case Outline document filed on behalf of the Independent Children’s Lawyer (“ICL”), the following orders are sought:-
(1)	That the child live with her father.
(2)	That the child spend time with the mother as follows:-
(i)	Until the child commences school in 2017:-
(i)	Each week from 10am Tuesday until 6pm Wednesday;
(ii)	Each alternate week from 10am until 6pm Saturday;
(iii)	Each intervening week from 10am Friday until 6pm Saturday.
(ii)	Following the child’s commencement at school in 2017 as follows:-
(i)	From 3pm or the conclusion of school on Friday until 9am or the commencement of school on Monday of each alternate weekend;
(ii)	From 3pm or the conclusion of school on a night agreed between the parties until 9am or the commencement of school the following morning in each alternate intervening week;
(iii)	Half of each school holiday period at times to be agreed between the parties.
10.	In summary, the orders sought by the ICL would see the child spend time with the mother for three nights a fortnight until the child commences school and thereafter for four nights a fortnight together with one half of each school holiday period.
11.	Accordingly, whilst there is a significant concession by the mother that would place the child in the father’s care for eight nights a fortnight increasing to nine nights after she commences school, her revised position was not such that the parties and the ICL could find common ground.
12.	Notwithstanding the obvious dispute, the parameters of the conflict are relatively narrow save as to the issue of parental responsibility.
PROCEEDINGS
13.	The trial commenced before me on 23 February 2015, the evidence concluded on 27 February 2015 and final submissions were received on 4 March 2015.
14.	I had the advantage of comprehensive Case Outline documents filed on behalf of the parties and the ICL.  Other than a change to the final orders sought by the mother, the outlines appropriately summarised the case on behalf of each of the parties.
15.	The applicant mother relied upon the following documents:-
(1)	Amended Initiating Application filed 11 November 2014
(2)	Trial Affidavit of mother filed 31 October 2014
(3)	Trial Affidavit of Ms C (maternal grandmother) filed 31 October 2014.
16.	The respondent father relied upon the following documents:-
(1)	Amended Response filed 12 December 2014
(2)	Trial Affidavit of father filed 12 December 2014
(3)	Trial Affidavit of Ms D Rose (paternal grandmother) filed 12 December 2014.
17.	The father’s counsel foreshadowed that his case would also be reliant on evidence from Dr E, general practitioner; Ms F and Ms G, both from CYWHS and Ms H from M Health Service.  No affidavits were filed on behalf of the proposed witnesses and it was intended that they be called by subpoena.  Ultimately only Ms F and Ms G gave evidence.  The father’s counsel considered that Dr E and Ms H were unlikely to assist the proceedings by their evidence.
18.	The ICL relied upon the evidence of Mr I who was the author of three Family Assessment Reports dated 20 June 2013, 18 February 2014 and 30 January 2015.
19.	Mr I gave evidence and given his long involvement with the family over a period of almost two years his evidence, opinion and insight was of assistance.
20.	It was intended by the ICL that she would rely upon the psychological report of the mother prepared by Dr J dated 22 January 2013.  At the commencement of the proceedings there was discussion as to whether Dr J would be called and noting that there was no objection by counsel, the    ICL did not rely upon his report.
21.	At the commencement of the proceedings I drew to the attention of counsel and the parties to the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular reference was made to the principles set out in s 69ZN.
22.	I raised with counsel that I did not consider that exceptional circumstances were either self-evident or were likely to arise during the course of the proceedings and as such, there was little focus for the application of the provisions of the Evidence Act 1995 (Cth).  Accordingly and subject to any submissions of counsel, I did not propose to deviate from the provisions of s 69ZT.
23.	Notwithstanding that determination, I was asked to hear and determine objections taken on behalf of the mother in respect of the father’s trial affidavit in particular directed to annexures to his affidavit being letters authored by Ms H (paragraphs 69 and 83) and a short referral note to Dr E.
24.	Notwithstanding that it was only counsel for the mother that took any objection to affidavit material, it was generally conceded that if the provisions of the Evidence Act were to be applied, significant portions of the affidavit material would be rendered inadmissible.  By implication, I accepted that I would exercise my discretion to the extent that I would consider or disregard evidence as presented.  Even in circumstance where evidence is received but would in the ordinary course be otherwise inadmissible, it is a matter of the weight I give to such evidence.  As in all cases, I have regard to Rule 15.13 of the Family Law Rules 2004 (Cth) in terms of my general ability to exclude evidence notwithstanding that the relevant provisions of the Evidence Act have been dispensed with.
25.	The mother’s counsel foreshadowed an application for leave to adduce evidence from Dr K.  
26.	The summary of his evidence was contained in two medical reports dated 11 December 2012 and 18 February 2013 being reports annexed to the affidavit of the mother’s solicitor filed 17 December 2014.  The application was opposed by the father’s counsel.  It was not foreshadowed in the Case Outline document filed on behalf of the mother that an application would be made for Dr K to be called and give evidence and it was further argued in opposition that the last substantive observation and assessment of the mother occurred on 3 December 2012.  It was argued that the Court would not be assisted by this evidence given that it was of historical value only.  If there had been further consultation between the mother and Dr K then the mother should have organised an update report and given the parties and counsel an opportunity to consider the proposed evidence and if necessary to review Dr K’s notes.
27.	At that stage of the proceedings there was some merit in the argument put forward by the father’s counsel.  It was difficult to see how the Court would be assisted by the psychiatric opinion of Dr K in respect of the mother’s presentation more than two years prior to the commencement of the trial.
28.	The application to call Dr K was finally pressed at the conclusion of the cross examination of the mother by the father’s counsel.
29.	Following her cross examination and upon hearing the mother’s application, I was strongly of the view that the mother’s mental health in the period leading up to the end of 2012 had now been made an issue in the case and that there was now focus in hearing the evidence of Dr K.  Moreover, the thrust of the cross examination centred upon not just the mental health of the mother historically, but that her current mental health was a matter integral to a determination of the parenting issues affecting the child.
30.	I determined therefore that the Court would be significantly assisted by hearing the evidence of Dr K but if in giving that evidence the father would be taken unfairly by surprise, obviously an opportunity would be given to the father’s counsel to make such application as she may be instructed. Ultimately the evidence of Dr K was received and there was no application made on behalf of the father to call psychiatric evidence in rebuttal.
31.	I found the evidence of Dr K to be helpful although as will become apparent, following the cross examination of the father but in particular by counsel for the ICL, the issue had to a large degree evaporated.
BACKGROUND
32.	The father was born in 1984.  He is now 31 years of age.  He is currently employed having worked for the same organisation for many years.  It is reasonable to assume that his employment is secure.  He currently works afternoon shift which requires the assistance of his mother to supervise the child at night.  He has made a request to his employer to change from afternoon to day shift.  That will still require some supervision of the child in the early hours of the morning but will better suit the child’s day to day routine once she commences formal school education.  I am satisfied by reference to the evidence generally and a letter from the father’s employer (Exhibit 1) that the father has a supportive work environment.  It should be stated however that I do not consider the issue of the parties’ employment to be a significant factor in the proceedings other than to highlight the important involvement of the maternal and paternal grandmothers in the ongoing care arrangements for the child.
33.	Clearly, the father requires the assistance of his mother to supervise the child at times when he is not able to do so.  The mother also relies upon her mother for assistance but I am satisfied at least for the moment, her reliance on the assistance and supervision of her mother is diminished.
34.	For her part, the mother was born in 1987 and is currently 28 years of age.  She is not in employment but of relatively recent date she has commenced studying for a qualification in aged care and community service.  There is therefore uncertainty as to when she will obtain employment and if so the extent to which the child would require supervision.  Similar to the father’s circumstances, I accept that the mother has good support from her family, in particular her mother and that she will be able to make suitable arrangements for the child’s care on any occasion that employment or other commitments would require the child’s supervision.
35.	Notwithstanding the misgivings of each of the parties in respect of the behaviour and perceived interference of the respective grandmothers, I am able to make the helpful but perhaps not surprising finding that the respective grandparents in particular and the extended family of each of the parties in general are entirely supportive of the mother and the father and are all prepared to assist in the child’s care as may be required.  The child can only benefit from that level of willing involvement and goodwill.
36.	The father has always lived in the L Town/M Town area.  There is close connection with the area by both his parents and other members of his family.  The father holds the qualification of a boiler maker/welder, but following some level of job dissatisfaction commenced truck driving in 2004 and ultimately secured employment in 2006 with a company situated in M Town who was ultimately the predecessor of his current employment.
37.	The father purchased the property in which he currently resides in L Town in 2008.  It is situated in close proximity to his parents and a sister.
38.	The mother was born in N Town and attended both primary and secondary education before health issues affecting her mother required the parties to relocate to M Town in about 2007.
39.	It is not controversial that from an early age the mother was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).  She was prescribed Ritalin medication which was readily and regularly taken by her until the age of 16 years.
40.	Thereafter, the prescription of the drug was on an as needs basis.  The issue of the mother’s compliance with her medication regime specifically in respect of the treatment of her ADHD but later for depression, was a prime focus of cross examination by the father’s counsel.
41.	The move to M Town had purpose in that the mother’s grandparents had previously relocated to M Town to be closer to other members of the family.
42.	The change in environment was unfortunately not without adverse impact on the mother.  In 2008 she suffered panic attacks, sought assistance from a psychologist and ultimately and helpfully for the proceedings, a referral was made to Dr K.  The mother has been a patient of Dr K since the referral in 2008.  Her attendances with the doctor have been both regular and ongoing.
43.	The weight that I ultimately have given to the evidence of Dr K is supported by the objective evidence of his long involvement with the mother.  His evidence is therefore underpinned by a substantial history of involvement rather than an assessment based upon a snapshot in time.
44.	The parties met in May 2009 and with what might be considered ill-advised haste, they immediately commenced a relationship with the mother commencing to reside with the father in his parents’ home at L Town.  They remained with his parents until about December 2009 when the renovations to the father’s home had been completed.  There remains dispute between the parties as to how they conducted their lives once they commenced to live together independently of the father’s parents.  For his part, the father says that from an early stage the mother’s behaviour was erratic and she was increasingly not able to undertake even relatively basic household skills and obligations.  The mother complains that she had advised the father in the early stages of their relationship that she suffered from ADHD and was open as to how her condition might affect her day to day behaviour.  Notwithstanding what she says was an open and frank disclosure to the father, whilst initially accepting of her diagnosis, she alleges that he was thereafter demonstrably unsupportive.
45.	Each of the parties now reflect on the early period of their relationship and accept that they were clearly ill-suited.
46.	The mother acknowledges that even from the early stages of the relationship there was significant assistance provided by the paternal grandmother.  When living with the father’s parents the mother accepts that she did little to assist and following the transition into the father’s home, the practice had developed whereby the paternal grandmother and then later the maternal grandmother were regular and frequent visitors to the home. They each took an active role in the home.
47.	The parties married in M Town in 2010.  The father continued in his employment as a truck driver and the mother was at that stage employed as a check out operator at a local supermarket.  She remained in that employment until shortly prior to the birth of the child on 4 October 2011.
48.	The pregnancy was marred by medical uncertainty.  The mother was concerned that she may miscarry and lose the child.  Whilst it is reasonable to find that that this created heightened tension and uncertainty, in the circumstances in which the mother found herself, it exacerbated what was then a pre-existent psychiatric fragility.  The mother’s anxiety was raised and this had a detrimental effect on her underlying health.
49.	It is open to find that the mother did not experience an ideal start to motherhood.
50.	Following the birth of the child the mother complains that the father was demanding and condescending towards her.  His mother became a constant visitor in the home and she complains that she was there “nearly all the time, she considered it her duty to be constantly with us”.  In addition, a CYWHS nurse Ms F was arranged to come to the house on a regular basis and Ms H also became involved.  Additionally, the mother was still seeking assistance from her general practitioner and her psychiatrist.
51.	Demonstrably the mother did not form a close relationship with those who attended her home.  She considered that their involvement was intrusive and in part demeaning.
52.	She admits however that she was not well.  The control of her ADHD and its resultant symptoms was clearly not well controlled.  She admits that she had “some anxiety and mood change following a change of medication”. She had what she considers to be some confusing medical advice and following her cessation of medication she had an extreme adverse reaction.

53.	The mother refers to the father’s behaviour summarised as follows:-
•	He treated her as a child;
•	He was critical of anything she did in the house;
•	Considered that she was lazy;
•	Became easily angered and agitated if the house was not kept in  perfect state of order; and
•	Considered that the father’s mother was attending only to report to the father as to the mother’s activities.
54.	As an indication of the deterioration in the mother’s ability to cope, the following admissions appear in paragraph 53 of her trial affidavit:-
(d)	He almost treated his mother as somebody who was going to report to him on everything I did during the day, I admit that I reacted to this and sometimes would almost be like a child in defying her and so on occasions I would deliberately eat bad food just to make her feel angry.  [Ms D] would often refer to [the child] as just a guinea pig and that it was an expectation that there would be more children and fairly quickly.  She seemed to see me as some sort of baby producer that was all…
(e)	I would say that I did on one occasion I cut myself by gouging the back of my shin with my finger nails, this was following an argument where I wanted to walk off and just alleviate the tension, however, [Mr Rose] would not allow me to leave.  I was frustrated and to try and draw his attention to how I was feeling I did gouge my shin with my fingernails.
(f)	I say that I have punched the wall in frustration, however, never damaged the wall, [Mr Rose] on the other hand has put his fists through the door, which caused a big hole.
55.	The perceptions of the father during this period are quite different.  He denies that he was in any way abusive towards the mother and did all that he could to assist in the early care of the child.  He attempted to prepare formula and some meals.  Interestingly, he refers to the attendance by the maternal grandmother to the home almost every day.  He complains that the maternal grandmother took over the care of the child even to the extent that both he and the mother were excluded.
56.	The father became concerned about the diminishing energy levels of the mother. He observed that on some occasions she would have difficulty in getting out of bed and attending to her personal hygiene.  Such was her demeanour that the father thought that the mother was lazy and that “she was happy to watch other people clean up her mess”.
57.	It was his observation that the mother appeared to have trouble concentrating and appeared at times to be absentminded and lacking proper attention to the child’s needs.  He did not think that the mother seemed able to bond with the child and appeared disinterested.
58.	Soon after the child’s birth the mother regularly consulted with her medical practitioner, Ms F from Child Youth Health Services and Ms H from M Health Service.
59.	The nurses were regular visitors to the home and did so upon the invitation of the mother and father in order to assist the mother to bond with the child and  develop better parenting skills.
60.	By September 2012 the father concerns in respect of the mother’s mental health were heightened by his allegation of her suicidal ideation.  He says she complained of hearing two voices inside her head “one telling her to kill herself and the other telling her not to do it”.
61.	Matters reached crisis point on 14 October 2012 where following an argument between the parties which ultimately involved extended family members and then the police, the parties separated with the mother leaving the family home.  The child remained with the father.  Whilst the mother has a different gloss on the catalyst for the argument, the detail is irrelevant.  The mother commenced proceedings on 23 October 2012 and consent orders were made on 30 October 2012 which provided that the child would live with the father and spend time with the mother for set hours on three days of each week.  Importantly, the orders provided for the mother to undertake a psychiatric assessment and during the adjourned period (20 December 2012) the mother attended upon her psychiatrist.  A report was published by him on 11 December 2012 which is the first of the reports relied on by the mother and annexed to the affidavit of her solicitor filed 17 December 2014.
62.	Thereafter there were various Court attendances with orders made that essentially reflected the child living with the father and spending relatively short periods of time in the mother’s care subject to supervision by the maternal grandmother or the maternal great-grandmother.
63.	An addendum report was prepared by the psychiatrist which is the second of the reports relied upon by the mother.  The focus of the interim proceedings was to provide as much information to the Court in anticipation of a hearing on 28 February 2013 intended to put in place interim orders pending trial.
64.	On that occasion the following orders were made:-
(1)	That the child live with the father.
(2)	The child to spend time with the mother (after 4 April 2013):-
(i)	each week from 10am Tuesday until 6pm Wednesday;
(ii)	each alternate week from 10am until 6pm Saturday;
(iii)	each intervening week from 10am Friday until 6pm Saturday.
65.	The maternal grandmother became involved in the handovers and it was a condition of the mother’s time with the child that she comply with all medical treatment as may be recommended by her treating medical practitioner.
66.	Other orders were made by way of trial management in anticipation of a final hearing on 28, 29 and 30 August 2013.
67.	Unfortunately the trial date was not able to be accommodated and the matter was transferred to the Family Court by order of 17 March 2014.
68.	The current orders that regulate the parenting arrangements between the parties are those orders made 28 February 2013.
69.	It is a helpful feature of this case that notwithstanding the heightened conflict and mistrust between the parties, each of them have been scrupulous in their compliance with orders made even though the order of 28 February 2013 was only intended to remain in place for a period of about six months.  An aggravating aspect of the order was a notation which confirmed the position of the mother namely, that she would live with her mother during all periods when the child was in her care including all overnight periods.  It was not intended to be supervision in the strict sense and ultimately it was conceded that neither party insisted upon the practice continuing but because they were not advised otherwise, they did not deviate from it.
RELEVANT ISSUES
70.	The mother seeks that the parties have equal shared parental responsibility.  The father considers that the inter-parental relationship between the parties has reached a level of dysfunction that the communication required for the parties to have a child focussed discussion necessary for shared parental responsibility to be effective is unlikely.  The father highlights that a good example of their poor communication is the inability of the parties to reach agreement as to where the child attends school.  The mother seeks that the child attend a school in M Town whereas the father seeks to enrol the child in the local primary school in L Town.  The parties are not agreed.  The evidence is scant on the topic, nonetheless it is a matter that will require resolution given the child’s commencement in kindergarten in 2016 which ideally would necessarily be a feeder for a local primary school.
71.	Initially the mother sought that the child live primarily with her and spend significant and substantial time with the father.  As noted, the mother’s position would now involve the child’s time being shared between the parties.  The father’s objection is again heavily reliant on the inability of the parties to effectively communicate.  Moreover, the proposed construct of the mother’s orders would see multiple transitions of the child between the parties which is not considered beneficial.
72.	Overarchingly however, that the child has now resided primarily in his care since separation in late 2012 being a period in excess of two years.  A level of stability has been engendered into the child’s life and in circumstances where the father is not adverse to orders that would see a meaningful relationship being maintained by reason of the child spending significant and substantial time with the mother, in the absence of good reason the current arrangements should not be significantly disrupted.
73.	There is also the ongoing concern of the father (at least as part of the father’s case at the commencement of the proceedings) is that the mother’s mental health is not necessarily under control in circumstances where the mother has an alleged history of medication non-compliance.
74.	In summary, the father seeks to highlight the mother’s struggle with mental health issues throughout 2012 and his ongoing mistrust and concern that the mother could relapse.
75.	The father complains that when the child returns from the mother’s home he has noticed:-
(a)	the child is very hyperactive and does not relax very easily;
(b)	the child drinks more water than usual;
(c)	the child does not eat any dinner that is offered; and
(d)	the child seeks the comfort of the father at night wanting to sleep in his bed rather than her own bed.
76.	At an early stage I indicate that notwithstanding the allegations of the father as set out in paragraph 105 of his trial affidavit,  he presented no evidence and under cross examination was not convincing in respect of these perceived difficulties.
77.	For her part, the mother denies that she has poor parenting skills and highlights that other than the clear difficulties that she experienced in 2012 (and for some few months following separation), there is no evidence to demonstrate that she has poor parenting skills, nor any evidence of Government intervention, medical issues, neglect or abuse or misuse of alcohol or drugs.
78.	Moreover, the mother relies upon the evidence of her psychiatrist to confirm that notwithstanding the pre-existing condition of ADHD it is now under effective control and has been so from 2013.  The mother attends the psychiatrist on a regular basis and there is no diagnosis consistent with borderline personality disorder, suicidal ideation or self-harm as a condition sufficiently developed to present a risk to the child.
79.	The parties are however settled in their respective homes, are in reasonable proximity to each other and it could not be said that the relationship between the parties is so dysfunctional as to make effective communication impossible.  Rather, the mother asserts that there has been improved communication between the parties of recent date and that a resolution of the proceedings may well clear away further barriers.  The mother does not suggest that there has been anything approximating a complete cessation of hostility and mistrust between them and relies upon evidence that the father has actively excluded the mother from health issues affecting the child and in particular the manner in which funding from the National Disability Insurance Scheme (NDIS) is to be utilised.  The most recent example put forward by the mother is the extent to which she says the father actively excluded her from medical and health information and assessment of the child.
80.	The parties are therefore not in agreement in respect of the following:-
•	Parental responsibility
•	Shared care as opposed to primary care with the father
•	The extent of time that the child should spend with each of the parties
EVIDENCE OF THE PARTIES
The Mother
81.	The mother relied upon her trial affidavit filed 31 October 2014.  I consider that she gave her evidence in a frank and forthright fashion.  She did the best she could to answer questions put to her under cross examination.
82.	She confirmed that she holds a driver’s license and is able to and does drive a motor vehicle as and when she needs to do so.
83.	A significant focus by the father’s counsel was on the psychiatric history of the mother.  She was questioned as to her medication regime and the clear thrust of the questions was to challenge the mother’s contention that she is medication compliant in respect of her ADHD.
84.	Her evidence was that she takes six tablets three times a day and that for a significant period of time as distinct from the period in 2012 and for the first part of 2013, she has maintained a strict medication regime as recommended.
85.	The mother was disarmingly frank in relation to her mental health issues and in particular the treatment of ADHD and later her anxiety and depression.  She did not prevaricate over a history of treatment for ADHD since she was eight years of age.  She was prepared to admit that for a period of time she stopped taking her medication because she thought she didn’t need it.
86.	She said that she withdrew the medication when she was pregnant with the child, but after recognising a significant deterioration in her mental health functioning she resumed medication after separation.
87.	By her own admission, the mother was clearly unwell following the birth of the child.  In addition to ADHD, and possibly exacerbated by the underlying condition, she also experienced significant depression and anxiety.
88.	She tried a number of different medications before ultimately finding medication that was both effective and able to be tolerated.
89.	I accept that whilst she did not have good insight in 2012 to her deteriorating condition, that changed after separation.
90.	The mother frankly admitted that her behaviour was poor, that whilst not amounting to ongoing self-harm that she nonetheless did episodically sustain minor self-inflicted injury and that she became obsessed with sores and scabs.
91.	The father’s counsel sought to magnify the mother’s poor presentation in 2012.  Frankly, the thrust of the cross examination was unnecessary in circumstances where the mother made full and frank admissions.  If there was a difference between the mother’s admitted behaviour and presentation and the reality of it, it is a difference without distinction.
92.	What ultimately became more relevant was the stark contrast between the mother’s presentation in 2012 and into 2013 as against her entirely benign and appropriate presentation over the last two years.
93.	To the extent that the mother considers there was interference in her life by the father’s mother, Ms H or Ms F, I consider that suggestion both misguided and not consistent with the evidence.  The mother was clearly psychiatrically unwell, she heard voices, was anxious and quick to temper,  there was no circumstance where realistically her evidence of unnecessary and unwarranted intrusion and interference by others can be sustained. 
94.	Again, much is explained by the mother’s frank assessment of her own predicament namely, that she was feeling isolated and depressed.
95.	I do not think the essence of this case has as its central focus the mother’s functioning and presentation in the period following the birth of the child and for some two or three months following separation.  Her behaviour and condition explains the appropriateness of the orders that were made which saw the child remain in the proper care of the father, but I do not think that the father has established either by his own evidence or the cross examination of the mother, that I should have misgivings about the longevity of the mother’s current stability.
96.	I formed the view that the mother had good insight into her behaviour and conduct over the said period.  She agreed that she was very unwell and at times her behaviour was extreme.
97.	Importantly, the father’s counsel sought to establish that the mother was not full and frank with her psychiatrist and accordingly, any assessment or opinion that he might proffer as to the current state of the mother’s mental health is compromised and therefore unreliable.
98.	Whilst to a large degree that issue is a matter for the psychiatrist, I find that the mother’s presentation to her psychiatrist was such that by reason of presentation and frequency of visit, the psychiatrist was well placed to form an opinion as to her mental health.
99.	The mother also gave evidence that in her opinion the relationship between she and the father has improved over the last six months.  They keep a communication book, forward text messages to each other where relevant and if necessary will contact each other by telephone.
100.	A significant proportion of the communication book between the parties form an annexure to the father’s trial affidavit.
101.	Whilst there is no reason why the communication book should not be before me, I made it clear to counsel that it was not for me to trawl through the book (or for that matter a large quantity of other documents forming annexures and subpoenaed material) in order to glean from those documents matters that I consider relevant.  Such an exercise would be inappropriate.  Whilst it may be acceptable for the documents to be annexed because there is an intention to rely upon them and therefore they are more easily referred to, I only propose to have regard to documents that are the subject of specific remark, comment, submission or reliance.
102.	In the context of evidence of the state of communication between the parties, I asked whether the father intended to rely upon the communication book as evidence of poor communication between the parties.  He resiled from reliance.
103.	To the extent that there was reference to some extracts and taking into account the mother’s evidence, I have found that the communication between the parties is appropriate and represents significant effort by the parties but in particular the mother and the father or his mother, to provide useful exchange of child related information.
104.	The communication is not perfect and nor would it be expected to be so.  I find however that it is adequate and I am entitled to draw an inference from the reluctance of the father to rely upon the communication book that there would be nothing contained therein which would demonstrate or support the father’s position, of poor communication.
105.	Such a finding is not to suggest that the relationship between the parties was without rancour.  The mother was prepared to admit to her own detriment that because she considered some of the actions of the father to be high handed, she “wanted to have the upper hand” and took the child to the doctor to have her vaccinated.  I find that she did so in circumstances where she was aware that the father had already made those arrangements.
106.	Again, the mischief created by this sort of behaviour arises where the provocateur has no insight into her conduct and that it is reasonable to assume that she will behave in a high handed manner in the future.  That is not my finding in this case.  I consider the mother clearly understands that her conduct in respect of this issue shows a distinct lack of maturity.  A counterfoil to what might be considered poor behaviour by the mother is the evidence of strict adherence and compliance with Court orders.
107.	The mother was cross examined by counsel for the ICL.  The questions put to the mother were few in number but of substantial relevance and target.
108.	The mother was asked as to her plans for the child’s transition given the longevity of the current arrangements with the child living with her father.  It was put to the mother that if she accepts (as she did) that the child was well settled in the father’s care, what then would be the effect on the child of a change in keeping with the orders that she now seeks.
109.	The mother admitted that she had not thought about the issues surrounding transition to her care and she accepted that the child has developed a strong attachment to the father.  This is a significant concession by the mother and may well represent a seminal point in the proceedings.
110.	At the conclusion of the cross examination, I am satisfied that the mother has not given any proper thought to the orders that she seeks or importantly, their effect on the child should the Court accede to her Amended Application.
111.	The mother frankly admitted that she had not thought through the effect of the orders both in respect of the original orders sought namely, for a change in the primary care and then orders that would produce a shared care outcome.
112.	The mother agreed that there is a primary attachment between the child, the father and the paternal grandmother.
113.	She freely acknowledged that when the child comes into her care she appears to be well presented in terms of both dress and development.  She accepts the child has well entrenched routines in the father’s household and ultimately conceded that she was well settled in his care.
114.	There is some dispute as to the extent to which the child has any development delay.  The father appears to be of the view that the child is positioned on the autism spectrum.  The father considers that there are substantial speech delays and impediments.  The mother acknowledges that there are some issues but believes that the child is not autistic, may have some development delay but that there is demonstrable improvement as the child ages.
115.	The mother is not as concerned as is the father.
116.	To the extent that there was evidence of the child hair pulling and biting her hands and feet, however severe that exhibited behaviour might have been it is not now a feature and has not been so for a significant period of time.
117.	Whilst the mother seeks that school holidays be shared equally between the parties, she provided no evidence of any ongoing inability of the parties to reach agreement as to the arrangements over Christmas, Easter, Mother’s and Father’s Day and other special occasions.
118.	I will do the best that I can to make orders that appear to be uncontroversial in respect of these other issues.
Ms C
119.	The maternal grandmother was cross examined as to her observations of the mother’s functioning following the birth of the child.  She was somewhat defensive of the mother’s in her answers and was protective of her daughter.  
120.	She was not however naïve in respect of the difficulties experienced by the mother and frankly admitted that it was her observation the mother was significantly depressed across 2012.  She agreed that her daughter did not experience good mental health and she was unhappy.  Her evidence can be summarised by her statement that her daughter was not the person that she knew.  Her suicidal thoughts and other distressing behaviour was considered by her to be a cry for help.  Accordingly, the maternal grandmother rang her daughter every morning.  She was however not concerned that the mother could or would hurt the child.
121.	The mother now lives independently of the maternal grandmother.  Their relationship however is close and supportive.  I have no doubt that the maternal grandmother will do all that is required of her to assist her daughter both personally should she need it but also in respect to care arrangements relating to the child.
122.	There is no immediate necessity for supervision or intervention at this stage given the mother has not yet secured employment.  She would however hope to secure part-time employment of about 38 hours per fortnight.  To the extent that the mother may require some assistance with the child, I have no reservations as to the appropriate involvement of the maternal grandmother and her willingness to be of assistance.
123.	Again, it is a fortunate but desirable feature of this case that the parties, whatever their impediments, have the unflinching support of their respective mothers and extended family.
124.	Whatever orders I make, I do not consider that the child will be at any risk.

Dr K
125.	The core of his evidence is as presented in the annexures to the affidavit of the mother’s solicitor filed 17 December 2014.  My principal focus however is upon the first report dated 11 December 2012 and his further oral evidence.
126.	The mother was first referred to her psychiatrist in April 2009 for the ongoing treatment of her ADHD.  As referred to by the mother there have been ongoing and relatively frequent consultations between the mother and her psychiatrist.
127.	He considers that the mother does suffer from ADHD and that the treatment of her condition with stimulant medication is appropriate and once properly regulated, effective.
128.	This witness records that whilst the mother has harmed herself, it is at a low level and not ongoing.
129.	The witness did not consider that as at December 2012 the mother could be diagnosed as fulfilling the necessary criteria for “Borderline Personality Disorder”.  Any history of self-harm is episodic and stress related.
130.	To the extent that there are symptoms that are consistent with a diagnosis of Borderline Personality Disorder but also ADHD, it is more likely than not attributed to the latter rather than the former.
131.	In 2012, this witness formed the view that the mother was likely to respond well to treatment and that her presentation would be appropriately monitored.
132.	The witness was asked whether on each and every occasion that he saw the mother he took the full history and undertook a full examination.  He did not consider that it was necessary to do so and that his experience and expertise was such that the presentation of the mother would have demonstrated clearly if she was suffering from a chronic psychiatric condition.  On all occasions that the mother saw her psychiatrist, she was stable in emotion, lucid, appropriately groomed and presented and appeared to understand the nature of discussion and interaction with her psychiatrist, but at all times acted appropriately.
133.	The relationship was clearly beneficial because the mother and her doctor were able to settle upon a beneficial medication regime.  From the beginning of 2013, this witness formed the view that the medication was clearly helping the mother and that she had achieved a level of stability.  Again, it was not his opinion that she had Borderline Personality Disorder or was Bi-Polar.
134.	At an appointment in December 2013 he observed that the mother’s mental health was good and she appeared happy.  In June 2014 the mother was able to discuss the current parenting arrangements and in particular what she understood to be a prohibition to the child sleeping at her home as opposed to the home of the maternal grandmother.  Notwithstanding the stressors that were clearly being experienced by the mother, the doctor found that she had good emotional and psychiatric stability.
135.	The doctor’s current opinion is that her mental health is well controlled particularly given the stress of the parenting arrangements in general but of principal focus, the ongoing litigation.
136.	The witness clearly has a good rapport with the mother and I accept his evidence that the mother remains medication compliant.  There is evidence of recent appointments where the mother appears chatty and well-adjusted and she has ongoing appointments to see her psychiatrist reliably into the future.
137.	This witness has unchallenged expertise and has the advantage of being able to provide current opinion and assessment but based upon long involvement with the mother.  To the extent that it could be said his evidence can be corroborated, the father’s own observations of the mother namely, that there have been no difficulties for what is now an extended period of time, lends weight to the clear opinion of the mother’s psychiatrist that she remains well and stable.
The Father
138.	The father relied upon his trial affidavit filed 12 December 2014.  His evidence was supplemented by some brief examination in chief.  It was his position that there had been an improvement in communication between the parties evidenced by text messages and appropriate exchanges in the communication book.
139.	 Notwithstanding the improvement it was the father’s position that whilst he would always seek to consult the mother in respect of many issues involving the child but in particular major issues, ultimately he sought the ability to make a final decision.
140.	Under cross examination he gave the example of the inability of the parties to determine where the child is to attend school.  This is a clear source of conflict between the parties.  The mother’s evidence is that the child should be enrolled at a kindergarten in L Town and from there transition to L Town Primary School.  The mother’s position is that the child has been placed on a waiting list at a college in M Town.  The parties are not able to agree this issue.
141.	The father gave curious evidence that when the child comes home from the mother’s home she wets her pants.  He said that the problem is managed by the father ensuring that the child goes to the toilet immediately upon the child’s return to his care.
142.	The father’s evidence was replete with references to the child exhibiting poor behaviour upon her return to his home which he considers is an indicator of the mother encouraging poor behaviour in her home.  I was not impressed by the father’s view that any poor behaviour exhibited by the child is likely caused by the mother’s poor or inadequate parenting.
143.	The father gave graphic evidence of the course and conduct of his relationship with the mother.  At first they were happy but very soon he became concerned at the mother’s deteriorating behaviour.
144.	Not dissimilar to the mother’s complaint about the paternal grandmother’s perceived interference in their household, the father complains that the maternal grandmother was “a very strong woman” and would stop the father from bathing the child and engaging in basic parenting activities.
145.	His allegations must be seen against the background of his hours of employment which commenced at 4pm requiring him to leave him at 3.20pm Monday to Friday of each week.
146.	The father has significant complaint as to the level of domesticity of the mother and whilst I place little weight on the relevance of those observations (even if true) nonetheless it is corroborative of my general finding that the mother was simply not able to cope during this distressing period.
147.	Whatever the parenting skills that were acquired by the father, irrespective of the difficulties of the mother, the family could not have functioned at all without the devoted and integral assistance of the grandmothers.
148.	The parties lacked a certain level of sophistication and maturity.  The father was clearly aware that the mother was not able to cope but he did not have the requisite skills to deal with her adverse presentation.  That is not to suggest that he did not do the best that he could.  His evidence is that the health care nurses provided the expertise in dealing with the mother’s mental health issues being a skillset that he did not possess.
149.	There was a persistent focus on the mother’s inability to cope during 2012 and into early 2013.
150.	The mother does not resile from her adverse behaviour and presentation.
151.	The central issue is the extent to which the mother has dealt with her health issues and whether the Court can have some confidence that they are suitably and appropriately controlled.
152.	I do not accept the father’s evidence highlighting some of the more florid aspects of the mother’s behaviour.  He was prone to some level of exaggeration and I gained the distinct impression that until he was challenged, he was prepared to paint a picture of the mother either being deliberately lazy or in some way failing to control or deal with the effects of her psychiatric distress.  The mother’s underlying ADHD was likely poorly controlled, she was under significant stress from gynaecological issues at the commencement of the pregnancy and the stress of the deteriorating relationship between the parties triggered anxiety and depression.
153.	I do not accept that the mother was acting maliciously or deliberately in terms of the behaviour complained of by the father.
154.	The father was asked what he thought about the mother’s parenting capacity at present.  He was not able to provide an answer.  I do not consider that his inability to respond arose from lack of knowledge but rather when asked to objectively reflect upon this most important issue, he was not able to seize upon any adverse or worrying conduct of the mother.
155.	The father was asked why he considered it was necessary that the mother’s time with the child should have some level of supervision by the maternal grandmother.  He could not give an answer and ultimately conceded that there was no basis for any ongoing supervision (notwithstanding that both of the parties were mistaken as to the existence of an order requiring supervision).  The direct question was put to the father that it was his position that the mother should have no or minimal time with the child.  With some reluctance, the father stated that the child should spend no more time with the mother than was currently occurring namely three nights a week and time on each alternate Saturday.
156.	It was also the father’s position that whatever the arrangements ultimately should be, the current order provided too many handovers between the parties and did not give either of them a clear and free weekend.  Ultimately his preferred position was that the child spend time with the mother each alternate weekend and on some time (possibly one overnight) in the interim.  Otherwise, the child should live with the father.
157.	Whilst there was some focus on the child’s health, the father gave curious evidence as to a practice that had been developed over a long period of time where the child was seen by a chiropractor who would apparently manipulate the child’s spine with a view to ameliorating her symptoms of asthma.
158.	The father had no clear idea about the treatment, its goals and the duration of treatment that may be required.  The mother was not consulted about the involvement of a chiropractor but it appears that the father’s family have some faith in the expertise of this health professional.
159.	It does not seem that the treatment being administered is harmful to the child, nor does it seem to be demonstrably helpful.  It is likely that the paternal grandmother undertakes the child’s attendance upon the chiropractor as part of her duties.
160.	Whatever the father’s complaints may be about the mother, his evidence did not suggest that the continued attendance by the child on her chiropractor was with the mother’s concurrence.
161.	As the father’s cross examination developed he admitted that for reasons he was not able to articulate he has a problem with the mother’s ability to care for the child. He is mistrustful of the mother but it seems that his anxiety and uncertainty of her parenting skills is a bi-product of his observations of the mother’s distressing behaviour in 2012.
162.	I have accepted that this was a difficult time for the parties and that it would have been bewildering for the father to have observed the demonstrable deterioration in the mother’s mental health, behaviour and presentation.  Whilst I do not think it is borne out on the evidence, I accept that as a result of his experience with the mother he remains genuinely mistrustful.  
163.	The evidence dealt with the tension between the parties highlighted by the mother wanting to take the child to an indoor swimming pool but being prevented from doing so by the father based upon his view that the child was getting sick following her attendance because the pool was heated and it was predominantly for the rehabilitation of older sick people. This indicated that there is a level of naivety as to the views of each of these parties.
164.	The litany of complaints by the father as given to Mr I in his report dated 18 February 2014 was again put to the father and he considered that there were still concerns but he was not able to provide any objective evidence to support that view.
165.	The father’s real position however was crystallised during the brief but effective cross examination of counsel for the ICL.
166.	The father conceded that for a long period of time the child had been returning from time with the mother in a happy healthy state and without problem or poor behaviour.  When asked the direct question, were there any problems exhibited by the child, the father was forced to admit that there were no problems.  Finally albeit with some level of reluctance, the father conceded that the mother has good qualities and importantly, he accepts that the child is safe in the mother’s care.
167.	I am satisfied on the evidence that virtually all of the father’s complaints are without current foundation and in any event there is nothing in the orders that the father seeks that is in any way conditional on the mother’s behaviour or in respect of supervision.  The father conceded ultimately that he thought an outcome whereby the child spent time with the mother each alternate weekend from Friday through to Monday, each Tuesday overnight and half of school holidays would be a proper outcome.
168.	The father did not give his evidence with malice or guile but was unsure as to how he and the mother could properly move forward.
169.	Given the father’s concessions it is regrettable that more effort was not made to explore a parenting resolution.
Ms F/Ms G
170.	Both of these witnesses were skilled and qualified Community and Health Nurses.
171.	They had no association or prior relationship with the parties and I accept their involvement was promoted by their occupation namely to assist families who might be struggling, particularly where that impacts upon the parenting of a child or children.
172.	The mother considered their involvement to be invasive.  I do not find that it was so.  It is true however that as the mother reacted more vociferously about their attendance they became concerned as to her ability to cope and parent the child.  Again, I accept their evidence that the mother was struggling to cope and to the extent that these witnesses give their own but nonetheless consistent version of the mother’s poor presentation, I find that they do so accurately.
173.	The difficulty is that the evidence was unnecessary to be led in circumstances where the mother had made sufficient admission of her deteriorating mental health.
174.	This case was never about the mother’s presentation in 2012 following the birth of the child but really to focus her current functioning and if appropriate, with what level of reliability.
Ms D Rose
175.	The paternal grandmother relied upon her affidavit of 12 December 2014.  She gave her evidence truthfully but clearly was highly supportive of her son.  Again, I accept her observations of the difficulties experienced by the mother after the birth of the child.
176.	The import of her evidence was to focus on her preparedness to assist in the care of the child whenever it may be required but in particular to supervise her when the father is working.
177.	The angst that appears to have been engendered between the mother and the paternal grandmother has to a large degree evaporated.  That is not to suggest that she now fully trusts the mother.  She clearly does not. She is however prepared to be civil and appropriate in her interactions with the mother and ultimately and in a manner not dissimilar to her son, her various complaints about the mother’s parenting evaporated upon exploration under cross examination.  A good example is the allegation of the child often wearing a nappy.  When questioned she agreed that often was not correct and to the best of her recollection it had only been on one occasion.
178.	The drafting of the affidavit of this witness was compromised and replete with generality rather than objective evidence that was either seen, heard or experienced.  There was little or no temporal context of the various allegations.  They suffered by their generality.
FAMILY REPORT WRITER
179.	The ICL relied upon Family Assessment Reports dated 20 June 2013, 18 February 2014 and 30 January 2015.
180.	The recommendations of the consultant was that the child should live with the father and spend alternate weekends with the mother and half school holidays.
181.	His first report is focussed upon the period of the parties’ relationship leading up to separation.
182.	Whilst it contains allegation and counter-allegation, the report provides some assistance in the observed interaction with the child and each of her parents at aged 18 months.  It is not surprising that the child was affectionate with both the mother and the father.  It suggests that notwithstanding the mother’s distress during the period considered in the report, nonetheless the child’s development does not appear to have been hindered or harmed.  That may be as a result of good luck rather than design but equally it might be reflective of the value of the resources that were utilised by the parties to assist them.
183.	The mother alleged that following separation the parties had continued an intimate relationship with each other.  The father agreed and I find that the secrecy in which the parties conducted their post separation liaison is an indication of their lack of maturity and naivety.  They did not have an entirely hostile relationship but were keen to keep their interaction a secret from their respective parents.
184.	To the extent that the mother makes the allegation of domestic violence, I agree with the musing of the report writer that there is little or no evidence to support that contention.  I do not find that the father engaged in family violence.
185.	The following extract from the first report is instructive:-
[Mr and Ms Rose] presented very differently on interview.  [Ms Rose] was strongly supported on interview by her mother who took an active and at times controlling role in the interview.  [Ms C] presented as a strong willed, intelligent woman who is used to taking control.  Like her daughter she was pleasant and engaging on interview.  She characterised herself as a support for her daughter and granddaughter…
[Mr Rose] was alone with the child when the writer visited him at home.  [Mr Rose] presented as confident and capable in his parenting of the child.  The child responded positively and affectionately to her father…
The paternal and maternal grandmothers would appear to be key players in this matter.  Both women play and important part in this child’s life.

186.	At that time and notwithstanding their relationship post-separation, the report writer found that there was heightened conflict between the parties and that they were unable to work together cooperatively.
187.	The other evidence in the case would not suggest that the report writer was in error.
188.	The second report was prepared in anticipation of a trial listed on 17 March 2014.  At the time of the assessment the child was about two and a half years of age.
189.	Pleasingly, some of the concerning behaviours the subject of comment by the father namely the child’s hair pulling, had stopped.  Consistent with the father’s evidence given at trial, it appears that the report writer observed and recorded that the parties had settled into a routine which appeared to have served the child well by its stability.
190.	There were no significant allegations and the observations of the child with each of the parties again demonstrated a relationship with the hallmarks of affection, familiarity and confidence.
191.	That is not to suggest that the parties did not have a differing parental style but there is nothing that was demonstrably inappropriate.
192.	The consultant summarised his assessment as follows:-
The issues of this case remain largely unchanged since the writer completed his first assessment in this matter.  The relationship between the parties remain highly conflicted and highly competitive.  Neither party has a high degree of confidence in the other parents’ ability to parent and care for [the child] safely and appropriately.
Both parents continued to claim that the other parent is largely dependent on their own mother to provide the majority of the care for the child.
193.	The third and final report again did not highlight any new allegations nor indeed could it be said to have involved an assessment of the child, her resilience or a consideration of how the child’s needs and interests might be best served by the various orders that each of the parties seek.
194.	Curiously the report seems to engage in an intellectual discussion with the parties as to the merits or otherwise of their respective applications focussing on the mother’s position of shared care and the father’s resistance of that outcome.
195.	In evidence the consultant did not consider that the mother presented a risk to the child but rather that he could not see any improvement or amelioration of the distrust and conflict that existed between the child’s parents.  It was not a good platform for either a consideration of shared parental responsibility nor indeed for an order that provided for a shared care arrangement or effectively equal time.
196.	The report writer did not have the advantage of the evidence of the parties.  I do not agree with the assessment of the report writer that the relationship between the parties is dysfunctional and irreparably so.
197.	I consider that if left to their own devices and having undergone the cathartic experience of the litigation, there is ample evidence to suggest that the parties are able to communicate at an appropriate level and in particular to be focussing on the child rather than the fuelling of any outstanding of any dispute or conflict. 
198.	If left to their own devices, I have some confidence that the father will ultimately accept that the mother’s mental health is stable and is likely to be so into the future and for her part once matters settle, there will be no need or purpose (if it is occurring) for the father or his mother to undermine the mother’s relationship with the child.
199.	Each of these parties will hopefully come to the recognition that their continued and significant involvement in the parenting arrangements for their daughter will assist in her proper development, welfare and progress.  
THE COMPETING PROPOSALS
200.	As has been clearly mandated in the decisions of AMS v AIF (1999) 199 CLR 160 at 191 [95] per Gaudron J, at 226 [196] per Kirby J and in U v U (2002) 211 CLR 238 at 248 [37] per Gaudron J each of the separate proposals of the parties must be first identified and then be the subject of separate evaluation.
201.	I have identified the orders that each of the parties seek.  Whilst not ignoring the detail of their separate proposals, in essence the mother seeks that there be equal shared parental responsibility and that the child’s time be shared almost equally between the parties.  There is some uncertainty as to the mother’s position in respect of school holidays and other special occasions but essentially she seeks that all holidays be shared equally and that the parties resolve by agreement other occasions that the child should be in their separate care.
202.	The father’s position is quite different.  He does not consider that the communication between the parties is such that shared parental responsibility is workable and accordingly seeks an order for sole parental responsibility.  In addition, he does not consider equal time or at least something that approximates that outcome to be in the best interests of the child but does concede that the child should spend substantial and significant time with the mother.
203.	Both parties have attempted to bring to account the emerging needs of the child as she approaches school age and then commences school.
ISSUES AND CONSIDERATIONS
204.	As noted the parties are not agreed on shared parental responsibility.
205.	In order to determine appropriate orders, I propose to adopt the following approach:-
(1)	Give consideration to the proposals put forward by each of the parties as they are identified and presented to the Court.
(2)	Have regard to the objects expressed in s 60B (1) and the underlying principles in s 60B (2) having regard to the provisions of s 60CC in order to determine what is in the child’s best interests.
(3)	Have regard to the primary considerations under s 60CC (2) and (2A) namely the benefit to the child of a having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm.
(4)	Have regard to the additional considerations under s 60CC (3) and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
(5)	Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA (2) which would rebut the presumption if a person or persons living with the child has engage in:-
(a)	abuse of the child or another child, (who at the time was a member of the parents’ family), (or the other persons family); or
(b)	family violence.
(6)	Section 61DA (4) provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
206.	Section 60CC is to be utilised in order to determine the question of what is in the best interests of the child and the issues of whether an order for substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of s 65DA (5), there will of necessity be some overlap in terms of assessing whether a proposed order is reasonably practicable and in that regard the decision of MRR v GR (2010) 240 CLR 461 is of assistance:-
[15]	Section 65DA (1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.  The presumption in section 65DA (1) is not determinative of the questions arising under section 65DAA (1).  Section 65DAA (1) (b) requires a practical assessment of whether equal time parenting is feasible…
207.	In the present case the parties do not concede that there should be equal shared parental responsibility.
208.	The father’s proposal for sole parental responsibility was supported by argument directed to the ongoing mistrust that he has of the mother’s ability to cope and care for the child stemming from his experience of the mother’s behaviour whilst the parties were together.  As has been noted, the father concedes that effectively from a time shortly after separation there has been no adverse behaviour exhibited on the part of the mother, that her mental health appears to be stable and importantly in terms of the presentation of the child as she passes between the parties that has been without incident. Indeed, the relationship between the parties would appear to have improved.
209.	Essentially, the high water mark of the father’s opposition to shared parental responsibility is the inability of the parties to communicate effectively or the likelihood that they will reach any consensus as demonstrated by their difficulty in determining where the child will be schooled.
210.	For her part the mother can obviously do little about the father’s perception of her, but argues that is a matter for him and she does not bear any mistrust or animosity towards the father or his family which would not enable effective communication to take place.  In summary, when the parties are focussed on the child it is her position that they are able to communicate at an appropriate level.
211.	There is objective evidence of reasonable communication.  I have highlighted that the father resiled from his original reliance on the communication book as part of his evidence in chief.  To the extent that there is evidence of communication between the parties I have found it to be civil and appropriate but perhaps of greater relevance, it focusses more particularly on the child than any personal dispute between the parties.
212.	The mother does complain that the written communication appears to predominantly from the paternal grandmother.  Whilst it is likely to be a matter of degree, I suspect that the mother’s assertion has some force.  Nonetheless I have accepted that each of these parties are likely to rely heavily upon members of their family but in particular their respective mothers and providing there remains the ability to communicate it is up to the parties how they fulfil that obligation.
213.	I do not consider that there is any good reason why the father should have sole parental responsibility for the child.  There are already some concerns that the father does and would make a unilateral decision to treat the child’s medical and physical needs and given my finding of an improving relationship with “good enough” communication, the father will need to reassess his attitude and view of the mother given his own concession that for some years there has been no adverse incident or event.  I do not consider that other than in the most extreme circumstances, the concept of shared parental responsibility should be rebutted by an assertion that a party remains mistrustful and doesn’t consider that he or she is able to participate in open and proper communication.
214.	Save as to issues relating to the child’s education which I consider can be dealt with by separate order there is no reason for the presumption of equal shared parental responsibility to be rebutted.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
215.	Section 65DAA requires me to consider whether it is in the child’s best interests and reasonably practical for her to spend equal time or substantial and significant time with each parent.
216.	I have already had something to say in respect of the separate proposals of the parties and the ability to give practical effect to each of them.  The parties are relatively close in terms of their geography and each have had now a long connection with the area.  I consider that there is no practical impediment either to the orders that the father seeks (in effect not dissimilar to the current orders) or indeed the mother’s proposal that the child’s time be effectively shared between the parties.
217.	The issue therefore is which proposal is in the child’s best interests.
218.	In order for that to be determined the Court must consider the matters pursuant to s 60CC of the Act.
Section 60CC (2) (a)
219.	The parties both concede the importance of the child maintaining a meaningful relationship with each of them.  I do not consider that there are any issues in respect of domestic or family violence and there is no suggestion on the evidence that the child is at risk either in the care of the mother or in the care of the father.  To suggest otherwise would be entirely inconsistent with the orders that each of the parties now seek.  Whatever the mistrust or misgivings held by the father might be, the very nature of his proposal that the child should spend significant and substantial time with the mother is not suggestive of any real, genuine or properly considered concern on his part.
220.	Equally, I also find that the orders that the parties seek will have the effect of maintaining a meaningful relationship by the child with her parents.  Taking into account the age of the child I do not consider that the issue of relationship (as distinct to other factors that might go to the child’s best interests) will be adversely impacted by an order made in favour of the father’s orders or of the mother’s orders.
Section 60CC (2) (b)
221.	I do not consider that I need to have regard to any allegations that would be consistent with family violence or physical and emotional abuse.
Section 60CC (3) (a)
222.	The child is three and a half years of age.  There is no evidence of the child’s current views and perceptions nor would that be expected in a child so young.
223.	Neither of the parties seriously urge me to bring to account any evidence as to the wishes of the child and the report writer does not consider it appropriate to place any weight on anything that might fall from the child.
224.	Whilst not directly relevant to matters relating to the child’s wishes, there is some relevance to the positive observation of relationship between the child and her parents.
Section 60CC (3) (b) (c) and (ca)
225.	Whilst I do not consider that the parties are necessarily energetic as to the promotion of the relationship with the other, I think the time has passed where there is any behaviour by each of them which would seek to undermine the other’s relationship.
226.	It is a relevant factor that the child has remained in the care of the father now since separation in late 2012.
227.	It is not to suggest that the mother has agreed with the circumstances in which the child’s primary care has vested in the father, but she does accept the reality of the situation and I must consider the respective proposals of the parties and give weight to matters that are likely to have a real impact on the child’s development and progress.  The stability of the child and what impact change might have is clearly a relevant consideration.
228.	The child is settled and comfortable in the father’s home and in the homes of the mother (now that she lives independently) and her mother.  As discussed, the child has not yet spent overnight time in the mother’s home but I have no misgivings in that regard and no matters were raised by the father about that progression.
229.	Each of these parties are alive to the issues in respect of the child and I have some confidence on the evidence that once the proceedings are over the parties will settle into a proper relationship with each other whether that be directly or via the good agency of members of their extended family.
230.	I do not consider that the child is at risk of physical harm in the care of either party nor is there evidence to support any contention that the mother will relapse into mental illness and not be able to properly care for the child.

Section 60CC (3) (d) and (e)
231.	I have determined that the child not only lives primarily with the father but that her care has fallen to him and his mother.   They have clearly made all of the decisions in respect of the child’s day to day issues and I do not consider that a change in the care arrangements which would see the child effectively spending equal time with the parties would be easily achieved.  It would be a significant change and not without some difficulty.
232.	A determination of the extent of time that a child spends with each of his or her parents is often a matter of balance and finesse.  It must always however be firmly anchored in the evidence presented.  The child has been properly cared for in the home of the father and there is little evidence as to how the child would cope with what I consider to be a relatively dramatic change in her arrangements.
233.	Unfortunately the consultant was of little help in assessing the resilience of the child and her adaptability.  The consultant focussed predominantly of the inability of the parties to reach any accord and consensus and it was for that reason that he did not support shared care.  Whilst those observations are important, what was not considered is the ability of the child to cope with change and the benefit (or detriment) to the child of such an outcome putting aside the concerns of the father that the parties might not be able to reach proper agreement thereby leaving the child’s care at least as to major issues in a state of flux and uncertainty.
234.	It seems to me that this factor alone speaks against shared care.
235.	The issue of where the child will attend school is clearly problematic.  It is unfortunate that the parties are not able to reach agreement on this point but it seems to me this issue should not be a tipping point for the determination of parental responsibility.
236.	Taking into account the orders that I propose to make and the ability of the parties to be involved in the child’s school whether that be M Town or L Town, I propose to order that for the 2016 year the child should attend the kindergarten at L Town and in default of agreement she should be enrolled in the L Town Primary School at the commencement of the academic year 2017.
Section 60CC (3) (f)
237.	I have found that the parties have a good capacity to provide for the needs of the child but with the added advantage of the child’s grandmothers having an important role in the ongoing provision of care.
238.	I do not consider however that the parties’ mothers take on a primary role but I acknowledge that their ongoing role is important but nonetheless ancillary to the ability of each of these parties to care for their daughter.
Section 60CC (3) (g) (h) (j) and (k)
239.	The application of these sections are irrelevant to the matters that I have to decide.
Section 60CC (3) (l) and (m)
240.	The evidence of the parties impressed me with their ability to put their differences behind them and to get on with the important matter of parenting their daughter.  Once the issue of schooling is resolved it would seem that the parties work well within an ordered regime.  Their significant compliance with orders of this Court even in circumstances where the orders have presented some difficulties and inconvenience for the parties is a positive indicator.
CONCLUSION
241.	Subject to the separate order that I propose to make in terms of the child attending kindergarten and then primary school in L Town, I will order that the parties have equal shared parental responsibility.
242.	I do not propose to see the primary care of the child change from the father to the mother but consistent with the amended orders sought by each of the parties, the mother should spend significant and substantial time with the child.
243.	For reasons that were not entirely clear, the mother sought a reduction of time from six nights per fortnight for the period of time leading up to the child’s commencement of primary school education in 2017 to five nights thereafter.  I do not see the need for any reduction in time simply because the child is commencing school but consistent with the increasing maturity of the child, she should spend four nights a fortnight with the mother until the commencement of 2016 and thereafter it should be five nights transitioning to block time.
244.	Neither party speaks against school holidays and the orders that the father seeks in relation to Easter, Christmas and other specific issues would seek appropriate and non-contentious.
245.	I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and forty five (245) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 March 2015.

Associate:  

Date:  24 March 2015