Equal time contraindicated by parents conduct

Equal time – Assessment of the evidence

116. As is often the case there is much in dispute between these parents.
117. In those circumstances, particularly at interim hearings, independent evidence assists the court greatly in assessing the probabilities of competing claims and the likely impact on children. I have referred to the independent evidence above.
118. Submissions on behalf of the father were to the extent that I should not rely upon the memorandum of the family consultant.
119. Solicitor for the Respondent father quoted Hall & Hall (1979) FLC 90–713. Submissions were to the effect that there “is no magic in a family report.” It was submitted, arguably, that proposition applies with greater force at an interim hearing where evidence is usually untested.
120. Of course, the court said in Hall & Hall^[8] that reports are meant to be, and usually are, valuable material to assist the Court in informing ultimate conclusions.
121. The evidence of Ms L is untested. However, much of her report and the recommendations based therein are based on agreed facts. Particularly having regard to the care arrangements for X. It is in relation to the care arrangements moving forward that I am most interested in.
122. It was submitted that Ms L placed too much emphasis on the mother’s assertion that the child was clingy.
123. Ms L was careful to point out the reasons why she believed X was primarily attached to the mother.
124. It was as a result of her very young age, and the fact that she had been predominantly cared for by the mother in her early years and notwithstanding that the child is “cared for” by both parents now, as she has been since she was approximately 15 months old, the father was required to work away from home during that time and the care in the father’s home involves care provided by many others.
125. It was in those circumstances, all of which were agreed circumstances, that Ms L formed the view that the “care arrangements would seem to indicate that the mother is likely to have been the primary carer.”
126. In those circumstances I am of the view that I can place some reliance on that independent evidence.

Equal time – Relevant section 60CC(3) matters

Section 60CC(3)(b)

151. The father says that the child is primarily attached to both he and the mother. The mother says that she is the child’s primary attachment.
152. The family consultant, mostly based upon the uncontested facts, is of the view that the child is most likely to have a primary attachment to the mother.
153. In weighing the probabilities of the competing claims of the parties, I am of the view that it is more probable that the child is primarily attached to the mother based upon the evidence currently before me.
154. The evidence also establishes that the child would have strong connections with both maternal and paternal external family members.

Section 60CC(3)(d)

155. It is the father’s case that the present care arrangements remain in place unless I am satisfied that there is an unacceptable risk of harm in the mother’s care.
156. It is the mother’s case that the child should live primarily with her and spend time with the father.
157. If I make no change to the child’s current arrangements, it is the view of the very senior family consultant that it is “likely that the current shared care arrangement is not in X’s best interests.” It is the family consultant’s view that X needs a stable and secure situation.
158. The evidence, and indeed the way in which the matter presented before me, clearly indicates that the co-parenting relationship between these parents is very fractured at this time.
159. The allegations raised by the father are serious and he persists with those allegations, trying to find fault in scientific investigations and attempting to prove his assertions by providing evidence of transactions from bottle shops.
160. It is not surprising that the mother finds this persistence and these allegations confronting and upsetting. It is not surprising in those circumstances that there is currently minimal communication between the parents and currently a poor co-parenting relationship.
161. Despite anything else, shared care arrangements are contraindicated in circumstances where there is dysfunction in the co-parenting relationship and very poor communication between parents. Shared care arrangements require flexibility, communication, and a consistent approach to parenting by both parents. Shared parenting arrangements require trust, acceptance of each other’s appropriate care and a common focus on the best interests of the child.
162. The evidence as it presented before me was not indicative of a finding that these parents can appropriately, in the best interests of their child, maintain a shared care arrangement.
163. In those circumstances there must be a change to this child’s care arrangements.
164. There will no doubt initially be some unsettling for the child as a result of this change. That disadvantage must be weighed against the advantage of having a settled routine in one of the parent’s homes.

Section 60CC(3)(f)

166. The father retained the child for three weeks. The father can find no disadvantageous effect in the child as a result of this. This raises concerns about the father’s capacity to meet the emotional needs of the child.
167. It seems to me that the father used the child as a tool to ensure that the mother entered into a parenting arrangement that suited him. This is most inappropriate.
168. The mother too, at times, has created distance between the child and the father. This shows that at times she cannot properly meet the emotional needs of the child.
169. Both parents need to refrain from focusing on each other’s faults and begin to focus on the child’s needs. The harm caused by ongoing conflict to this child has the potential to cause disastrous effects for her psychological well-being. Both parents need to be mindful of this fact.
170. Nothing turns in relation to the other subparagraphs of Section 60CC(3). There can be at this stage no findings as to family violence, however as I previously stated, I am certain that the child is not at risk to exposure to physical violence in the father’s home. I am also convinced that the child is not at risk of physical violence in the mother’s home.

Parental responsibility

171. Section 61DA(3) provides that the presumption applies unless I consider it would not be appropriate in the circumstances for the presumption to be applied.
172. Whilst these parents have a dysfunctional relationship at this time, there is no evidence currently before me that could satisfy me that the child’s welfare is being put at risk as a result of that dysfunction.
173. That is, there is nothing before me that could indicate that X is missing out on appropriate medical care, day care or supervisory care in either parent’s home.
174. For those reasons the presumption is to be applied.

Section 65DAA

175. I have already set out why I am of the view that a shared care arrangement is not in the best interests of the child. It is currently contraindicated due to the parent’s behaviours in this matter.
176. It may be that in the fullness of time should the co-parenting relationship improve that an equal time arrangement might be in the best interests of X. Only time can tell. It is now up to the parents to put their child’s best interests first.
177. It is the mother’s proposal that the child spend time with the father for three nights a fortnight. That does not amount to substantial or significant time.
178. I am of the view that there should be substantial and significant time for X as it is in her best interests based upon her care provided by these parties throughout her life.
179. I am not bound by either party’s proposal (U v U [2002] HCA 36; (2002) FLC 93-112). I intend to make an order for substantial and significant time as I am of the view that it is both in the child’s best interests and reasonably practicable based upon the evidence that I have referred to previously.