A and D
[2001] FMCAfam 160
•14 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
A & D [2001] FMCAfam 160
FAMILY LAW – Contact – 2 expert witnesses – Child 7 – diagnosis of “Separation Anxiety” – conflicting diagnosis of “generalised anxiety disorder” – best interest of child.
| Applicant: | J J A |
| Respondent: | R L D |
| File No: | ZB2597 of 2001 |
| Delivered on: | 14 September 2001 |
| Delivered at: | Brisbane |
| Hearing Date: | 24 & 25 May 2001 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamwood |
| Solicitors for the Applicant: | Wight & Shera |
| Counsel for the Respondent: | Mr McGregor |
| Solicitors for the Respondent: | Margaret Jones |
ORDERS
That the child L M A D born 20 May 1995 live with the MOTHER.
That the FATHER have contact to L as may be agreed between the MOTHER and the FATHER but at least:
Weekend contact
a)From the first scheduled contact weekend after the 2001 October school holidays, each alternate weekend from after school on Friday to 5.30 pm on Sunday, or Monday on a public holiday.
Evening contact
b)Each alternate Monday from 5.30 pm to 7.30 pm with such contact:
i)extending to after school Monday to 7.30 pm Monday from the commencement of the 2002 school year; and
ii)further extending to after school Monday to before school Tuesday from the commencement of the 2003 school year;
c)Weekend and evening contact shall be suspended during school holiday periods.
Telephone contact
d)By telephone on one occasion each week, initiated by the FATHER between 5.00 pm and 7.00 pm, and on such other occasions as may be desired by the child, initiated by the MOTHER.
Holiday contact
e)From 5.30 pm on Monday 1 October 2001 until 5.30 pm on Sunday 7 October 2001.
f)During the December 2001/January 2002 school holidays, for two separate periods of 6 days duration.
g)During the year 2002:
i)for half of the Easter, June/July and September/October school holidays and failing agreement as to which half, then the second half in 2002 and all even years thereafter, with the FATHER to have the first half in 2003 and all odd years thereafter;
ii)for two separate periods of 7 days duration during the December 2002/January 2003 school holidays.
h)Commencing the year 2003, one half of all school holiday periods alternating between the first half and the second half, with the FATHER having the first half in 2003.
Christmas Day
i)From 1.00 pm on 25 December 2001 to 5.30 pm on 26 December 2001 and odd years thereafter and from 5.30 pm on 24 December 2002 to 1.00 pm on 25 December 2002 and even years thereafter.
Special days
j)Should L’s birthday fall on a schoolday, then the FATHER shall have contact from after school to 7.30 pm.
k)On Father’s Day (if it is not a usual contact weekend), from
9.00 am to 5.30 pm.l)If Mother’s Day falls on a contact weekend, then the child shall be returned to the MOTHER at 9.00 am on that day.
Transport
That for the purpose of contact, the FATHER or such responsible adult appointed by him and known to L, shall collect the child from the MOTHER’s residence or school (as the order may direct) and return the child to her school or the MOTHER’s residence (as the order may direct).
Specific issues
That the parties shall share the responsibility for the long term health, welfare and development of the child.
That the parties encourage the relationship of the child with the other.
That neither party denigrate the other or allow any other person to do so in the presence or in the hearing of the child.
That each party keep the other informed about medical issues relating to the child.
That each party authorise the other to make all reports concerning the child available to the other party, including but not limited to school reports, medical and therapists reports and each party will authorise the principal of the child’s school, doctors and health professionals to supply such information to the other as that party may reasonably require.
That the FATHER be permitted to attend any school functions, sporting activities, obtain copies of school reports, attend at the child’s classes at any reasonable time, but notwithstanding the foregoing the FATHER shall at all times obtain the permission and approval of the child’s teacher before attending at the child’s classes.
That each party keep the other informed of their current work and residential addresses, telephone numbers and e-mail addresses and inform the other in the event that they intend to change their residential address and/or telephone numbers 21 days before such change.
That the MOTHER shall not communicate with the FATHER by way of facsimile to the FATHER’s workplace.
That the undertaking by the FATHER given 20 December 2000 be forthwith discharged.
That if either party intends to be away from their usual place of residence whilst L is in their care overnight, then that party shall provide to the other party notice of the following:
i)the street address where L will be staying; and
ii)a contact telephone number
as soon as possible before they are away from their usual place of residence.
That the MOTHER pay to Mr PHILIP TRUDINGER the sum of $1,219.55 for her share of his professional fees for the preparation of his report dated 10 September 2000.
That pursuant to s65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and Annexure B to these orders.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE
ZB2597 of 2001
J J A
Applicant
And
R L D
Respondent
REASONS FOR JUDGMENT
Introduction
In May 2000 J J A (“the Father”) commenced proceedings for parenting orders in relation to L M A D (born 20 May 1995), a child of a relationship between the father and R L D (“the Mother”).
Issue
The parties having agreed that L should reside with the mother, the issue for determination was the extent and frequency of contact between the father and L.
Background
The father is 38 years of age and a Barrister. The mother is 35 years of age and a Solicitor. The parties did not cohabitate and their relationship ended shortly after L’s birth in May 1995.
There was at the end of the relationship a high level of antipathy between the parties and the hostility between them has continued to the present time.
From the time of birth of the child to the commencement of proceedings by the father, the level of contact gradually increased from initially a few hours each week to one day each week. The father alleges during this period there were occasional denials of contact.
Despite Family Court Counselling in 1996 and some attempts to negotiate (both without and then with the assistance of lawyers), the parties were unable ultimately to reach agreement on what contact regime was in the best interests of L, and the father commenced proceedings in Family Court of Australia in May 2000.
From the commencement of proceedings, whatever remaining personal relationship existed between the parties has been extinguished, with both parties using the Court as the forum for resolution of this dispute. This has resulted in the following orders :
a)Consent interim orders on 20 June 2000 by Registrar Rimmer where, upon certain undertakings, the father was to have contact:
i)for 6 weeks on a Sunday to 7.30 pm;
ii)thereafter for 6 weeks overnight on a Saturday;
iii)each Tuesday evening from 5.30 pm to 7.30 pm
with the parties agreeing to engage the professional services of Phillip Trudinger after the commencement of overnight contact to assist the parties to facilitate contact and prepare a joint report, if necessary;
b)further consent interim orders on 12 September 2000 that the father have contact:
i)alternate weekends from 10.00 am Saturday to 5.00 pm Sunday;
ii)alternate Tuesday evening from 5.30 pm to 7.30 pm;
c)further interim orders made by Registrar Rimmer defining contact for Christmas Day and some January school holiday contact of short duration, and, thereafter:
i)From 10 February 2001, each alternate weekend from 9.00 am Saturday to 7.30 pm Sunday, for one month;
ii)And then from 16 March 2001 each alternate weekend from after school on Friday to 6.30 pm on Sunday; and
iii)Each alternate Tuesday from 5.30 pm to 7.30 pm; and
iv)A block period of 4 days in the Easter school holidays.
Despite these orders, contact did not progress smoothly. More will be said about each parties allegations as to why this occurred. The father did exercise the block contact in the Easter holidays. No agreement could be negotiated as to the extension of weekend contact (including a long weekend in May 2001) or future holiday contact.
Competing proposals
The competing proposals for further contact can be summarised as follows:
A.THE FATHER
(i)each alternate weekend from after school Friday to 5.30 pm Sunday or 5.30 pm Monday of a long weekend;
(ii)each alternate Monday night to be expanded to after school and then overnight;
(iii)holiday contact for September/October 2001 for one week and thereafter half of all school holidays;
(iv)special day and telephone contact;
(v)a number of specific issues orders.
B.THE MOTHER
(i)each alternate weekend from 9.00 am Saturday to 5.30 pm Sunday;
(ii)each alternate Monday from 5.30 pm to 7.30 pm;
(iii)until L starts Grade 4 in 2004, holiday contact shall be for 4 days in the Easter, June and September school holidays and 2 periods of 6 days in the December/January school holidays;
(iv)from 2004, for half of all school holidays provided the father is on vacation and available fro the full-time care and supervision of L.
(v)Special day and telephone contact;
(vi)A number of specific issues orders.
Principles to be applied
a) I was directed to section 60B of the Act, and the object of Part VII of the Family Law Act;
i)to ensure that children receive adequate and proper parenting to help them achieve their full potential and ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children;
ii)the principles underlying these objects are that except when it is or would be contrary to the children’s best interests:
·the children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or never lived together;
·the children have a right of contact on a regular basis with both their parents, and with other people significant in their care, welfare and development;
·parents share duties and responsibilities concerning the care, welfare and development of their children;
·parents should agree about the future plans of the children.
b)I am conscious, too, of section 65E of the Act:
“In deciding whether to make a particular parenting order in relation to a child a Court must regard the best interests of the child as the paramount consideration.”
c)I am conscious, too, of the provisions of 68F that:
“In determining what is in the child’s best interests, the Court must consider the matters set out in sub section (2).”
The seminal issues
Ultimately the difference between the parties’ positions originates from:
a)their view of the other party’s conduct;
b)their observations, feelings and perceptions of how L is coping and will cope in the future with increased contact;
c)the support they each seek to draw from the opinions expressed by “their” expert – Mr Phillip Trudinger on behalf of the father and Ms Valma Johnson on behalf of the mother.
Regrettably, but in no way surprisingly considering the occupations of the mother and father, the dispute both in the nature of the material filed and presentation of the case was played out in a very legalistic manner, with each party making copious notes during cross-examination.
This trial seems unlikely to have had any healing effect. My impressions were that to some extent the hostilities and events are fuelled by a competition by the parties who were seeking to display their respective legal prowess.
The age of L and the long journey ahead for these parents in her development encourages me to focus my attention in these reasons on the seminal issues in a way, which hopefully will not prove divisive. As a result I do not regard it as either necessary or helpful to delve into some of the history or make specific findings on issues which do not relate to the future parenting of L.
Ultimately the issue is one of the extent, frequency and manner of contact, with residence remaining with the mother. As a result I do not propose to undertake a detailed analysis of the s68F(2) factors, although I have considered them and will briefly refer to them later in these reasons.
Father’s evidence
The father has had very little parenting experience, however I regarded him as a truthful witness who is child-focused. He gave his evidence in a clear manner and made in my view reasonable concessions where appropriate. He reflected a sense of frustration that the events have created such conflict resulting in difficulties in exercising contact which he claims could be avoided.
He regards the mother’s conduct as the fundamental cause of the conflict and difficulties. In this regard he said:
d)the mother has made the exercise of contact by him difficult, controlling the extent, nature and frequency of his contact to L;
e)the mother’s allegations of aggression and alcohol abuse as a defect in his parental capacity are denied and on the mother’s part represents a gross exaggeration by her of explainable events;
f)denies strongly that he has denigrated the mother or allowed his family to do so in the presence of L;
g)he regarded the letter by the mother to him of 12 April 2001, raising in a formal written manner, a number of concerns, as a good example of the mother’s conduct and was a self-serving attempt “calculated to inflame rather than progress matters”. In particular he was deeply offended by the allegations of inappropriate behaviour arising from L’s occasional sleeping arrangements at his home.
In respect of his own conduct, he acknowledged that he contributed to the growing tensions through his frustration arising from the mother’s rejection of what he believes were his reasonable proposals to increase contact to overnight and extended periods. In this regard he particularly relied upon the advice he received from Mr Trudinger that the worst possible way of addressing “separation anxiety” is to cease or reduce contact.
In respect of L, he generally observes that when she is with him she is relaxed affectionate and playful. Since September 2000, he says, when the child is with him, she demonstrated or expressed no concerns about contacting the mother. Her sleeping patterns, which had been an issue in the past, settled down. This degree of comfort shown by L, was supported by the observations and evidence of the father’s parents Mr & Mrs A.
The father, supported by the opinion expressed by Phillip Trudinger, is extremely positive about the ability and desire of L to have increased contact with him and his family. Although he agreed that initially L was shy and a little withdrawn, he says that the regularity of contact has allowed him to develop a strong bond and relationship with her and he wants to play an ongoing future role in her life, including her education.
He acknowledged that the lack of communication coupled with the ongoing litigation, has developed a degree of hostility which has to improve in the future and he believes it can and should start with the parties engaging in “everyday” conversation about L.
Phillip Trudinger
Mr Trudinger, a well-known and respected psychologist, was engaged by the parties initially to assist in the facilitation of contact between L and the father and, if necessary, to provide a report to the Court. This involvement is noted in the orders of the Court of 20 June 2000. As a result he prepared a report dated 10 September 2000. Thereafter, he was subsequently engaged by the father to provide reports for the proceedings dated 29 November 2000, dated 3 May 2001 and Annexure “D” to his affidavit, filed by leave.
I do not propose to recite numerous passages from the reports. It is clear that the mother became concerned with the advice of Mr Trudinger and the extent of his involvement. She clearly lost confidence in him and felt unable to accept, as appropriate, the strategies he suggested. The father appears to have both adopted and closely followed the advice of Mr Trudinger. Mr Trudinger’s diagnosis (at page 10 of his first report) was that:
“It is my professional view that to a large extent L is troubled by a separation anxiety. It is also my view that to an extent Ms D is also troubled by a reciprocal separation anxiety with L.”
His foundation for this assessment and diagnosis is identified in the report and was taken up, to some degree, in the order made on
12 September 2000. He said in particular about the mother that:
“She appears unable to be comfortable or confident with the notion of L being at Mr A’s home overnight and fixed on the notion that L might be or become distressed. Ms D has questioned and challenged me about the process of contact and has stated that she believes the process of contact to be detrimental to and for L, particularly in terms of her relationship with Mr A. While there is some possibility of that, it is my primary opinion that the relationship and the concern between Ms D and L are in fact disrupting the potential relaxed relationship between Mr A and L. If Ms D is not able to be comfortable and confident about L being at her father’s home overnight, then L herself will not feel confident. As a result when L says or tells her mother that she does not want to go, or has some somatic complaint, or is distressed, her mother is likely to reinforce the worry or concerns in L, albeit indirectly or inadvertently.”
As a result of expressing this opinion together with the mother’s concerns with his strategy, the mother has had no contact with Mr Trudinger since August 2000. As a result his capacity to facilitate contact was significantly impeded by the mother’s decision not to support his role as previously agreed. Thereafter, apart from his explanations of diagnostic theory and analysis, his evidence generally related to his observations of the child in the care of the father.
On 5 May 2001 he observed the child and formed the view that:
“L appeared to be happy and well settled, and her comments to me during our interactions together appeared to reinforce those observations of she and Mr A together. L made many positive comments about and towards her father and about seeing and spending time with him. She did not appear to be concerned at sleeping in her own bed, or at the idea of her father being in his bed in the next room.”
Consistent with his professional view and diagnosis, Mr Trudinger says the father’s proposals for contact are appropriate. He says the “sooner” the arrangement is in place “the better”. Whilst he said it was hard to know whether L has a “generalised anxiety disorder”, none of this is affected by the day to day life with her father. He strongly recommends that L be required to continue with overnight contact and extended holiday contact (although there is no qualitative difference between 4 days and 7 days) and that the mother should promote and support this regime with words and deeds.
Mother’s case
The mother presented as a very deliberate and careful witness who, whilst I find was truthful, at times became defensive. I expect she believes she has been “under attack”, in respect of her strongly held views about the conduct of the father; its effect upon L and the best strategy for the future contact. She found it a little harder than the father to make any positive concessions and, in her evidence, went to some length to reveal both her observations of the child’s behaviour in her presence and her view of that increasing contact too quickly would expose the child to unnecessary further anxiety.
In particular it was clear from her evidence and her conduct since the report of Mr Trudinger delivered in September 2000, that she was hurt and offended by his diagnosis of “separation anxiety”, and immediately lost any confidence in him or the role he was to play in the matter. The events of 5 August 2000, being the night of the initial trial period of overnight contact, was in many ways the last straw in her relationship with Mr Trudinger.
She regards the father’s conduct in pressing for more (and overnight contact) when she feels L is not ready for it creates, in her view, an unreasonable expectation for L to achieve and leads to further stress and anxiety. As a result she regards the father’s assertions of the child being happy in his care as unlikely. Although she accepts the current inability to communicate is a conflict damaging to L, she could not identify any ways it was likely to improve and had no confidence that they could collaborate in long-term decisions. She found it difficult to express any positive qualities of the father because:
“I haven’t seen them together.”
It is clear that because the parties never lived together, there are large gaps in their knowledge and understanding of each other.
She defended vehemently any criticism of either her parenting style or that of her family. It is clear that she has been supported emotionally and physically by her mother Mrs D (who has lived with her and L since L’s birth) and her sister Ms J J. In particular the mother returned to work as a solicitor when L was only 3 months old. I sense she carries some regret about having to do so. Her parenting style is similar to that of her own mother. It seems that she unfortunately never knew her own father. The mother showed resentment when questioned about whether it was indicative of her treating L as a baby, that she still gives her a comfort bottle when she goes to bed, by replying: “I had a bottle to the end of grade 1”, although she acknowledged it was “unusual”. She described herself as a “careful” mother who has found it difficult to deal with L’s expressed and repeated concerns to her about going to contact. She feels very much that she is “damned if I do” (allow more contact) and ”damned if I don’t.”
In rejecting any prospect of “separation and reciprocal separation anxiety” existing, she is happy to adopt the view expressed by her expert, Valma Johnson, that the child suffers from a generalised anxiety disorder. In support of her view she recites many examples in her affidavits filed both 18 December 2000 and 17 May 2001, where she says L has expressed concerns about going to contact. I do not propose to deal with each of those observations but do record in these reasons that (founded on these remarks and observations) the mother says:
a)L was very upset and distressed about what Phillip Trudinger was saying to her;
b)L was very anxious about starting school, and since starting school she has become “terribly worried about getting things wrong or not getting it right”. Some evidence to exemplify this conduct related to getting her “sight words” right. L seems anxious to achieve;
c)The grandmother says that when the FATHER knocks on the door to collect L for contact L says:
“‘Quick Grandma, come into the bedroom’ and when we get there, kisses me 6 or 7 times and I have to say a prayer with her before she will leave.”
d)After the extended Easter contact period, L said to the grandmother:
“’I went to the toilet and prayed’. When I asked her why, she said ‘I miss you Grandma, and Mummy’. L has often said to me ‘I would be happy to go for the day but I don’t want to stay there at night’.”
The grandmother says she finds it upsetting to see L so distressed.
e)L has, even in grade one, been heavily involved in extra curricular activities which restrict the available time for contact for both father and the mother and her extended family, including:
·Ballet each Thursday after school;
·School choir every Wednesday morning;
·Swimming lessons each Tuesday evening;
·Speech therapy – alternate Saturday mornings until shortly before trial, and possibly having recommenced after a June reassessment.
The mother, supported by the opinion of Valma Johnson, says that contact should progress slowly to allow L to adjust and her proposal reflects that view. I formed the view from the evidence and her demeanour in the witness box, that she is a devoted mother whose lack of relationship with the father has made it difficult for her to reconcile her own personal concerns about the father and her stated support for the development of the relationship between the father and L. Her own happy upbringing, (which is being duplicated in a sense now), which helped to nurture her as a strongly independent, caring and articulate woman does not easily accommodate the exploration by this child of a different parenting experience. The mother when confronted with this tension does, I believe, tend to retreat back to the style with which she is familiar. This is not of itself unreasonable, but may cause (if permitted to continue) the loss or damage of a significant and important relationship between L and her father. I sense the mother does not yet accept that would be a loss.
Valma Johnson
Ms Johnson, a well known and respected social worker, was engaged by the solicitors for the mother, for the purpose of, as she described it:
“providing the Court with some degree of balance regarding psychosocial issues in this family.”
This purpose seems to be different than the purpose suggested by the consent notation to the order of 12 September 2000 which indicated that:
“the mother, at her cost, will engage an appropriately qualified expert to deal with the separation anxiety identified by Mr Trudinger in his report ...”
Again I do not propose to recite numerous passages from the two Reports of Ms Johnson (dated 17 December 2000 and 21 May 2001). Ms Johnson was at a disadvantage in one sense, in the preparation of her report, as she had no opportunity to interview the father or observe the child in his presence – an invitation extended by her to the father having been declined. Ms Johnson quite fairly identified this reservation at paragraph (4)of her first report.
She also raises some concerns about the role undertaken by Mr Trudinger (which she described as reportable counselling) and also questions the diagnosis of Separation Anxiety where she says, at paragraph 39:
“Mr Trudinger has purported that the child suffers from a Separation Anxiety Disorder and infers that the mother reinforces and “feeds” these apprehensions”. I hold reservations about whether this finding was accurate at the time but nevertheless the question is now somewhat irrelevant since the family have moved through the impasse.“
She concludes her first report by saying to “Make haste slowly.”
Her second report was of great assistance in providing some update as to L’s development, in particular at school, but again (as were Mr Trudinger’s later reports) was based on observations of only one party, in this case the mother. Her recommendations are founded on her view that:
a)L is suffering from an anxiety state, irrespective of contact and matters pertaining to the Family Court dispute;
b)She is a shy, sensitive child who does not appear to have a resilient nature and displays marked fears of failure.
c)She is coping by using a primitive defence of splitting. That is she presents as coping well and with absolutely no difficulty in outside settings, eg. school and her father’s place, while at home she presents as hopelessly overwhelmed by anxiety and stress, and hardly able to manage at all.
d)Mrs Hannah, L’s class teacher, notes that these dilemmas (anxiety and acute state of perturbation) are not observable in the classroom. She is contained. She is achieving. She notes some regression and upset when the mother is present.
Ms Johnson, although indicating the mother’s proposals for increase in contact “carry sound merit”, she was in my view less assertive about the inability for L to cope with increased contact. She said it could well be the case that L, after some “acting out and stress” will cope with the change once again. She is cautious about predicting when L may move successfully to extended contact “since these are health dilemmas and not legal ones”.
Section 68F(2) factors
In reaching my conclusions, I have taken into account the relevant factors. I do not propose to deal with them exhaustively, however, it is important to at least record that:
a)I do not attach any significant weight to the wishes expressed by L, other than to give a general impression of the extent of the tension she is feeling arising, in my view, to a large degree from the conflict between her parents, of which she is aware.
b)L, although primarily attached to her mother has I find a close and loving bond with her father;
c)I ultimately assess that the child will cope with the gradual changes which I propose to make to the contact regime;
d)Each parent has different qualities, different backgrounds and different experiences. Not surprisingly they will parent differently, but not, in my view incompatibly. As the dominant household, the mother’s rules on discipline etc should be observed in the father’s household, and I have confidence the father understands the importance of this consistency. Each has a capacity to provide for the emotional, social, educational and life needs of their much loved daughter. In the heat of this litigation, I’m not sure whether either has been able to fully expose the child to their natural parenting style.
e)I am not satisfied that the mother genuinely supports and promotes the developing relationship between the father and L. Whilst she says she is not anxious about the child’s safety and expressed few problems with the father ‘per se’, she could I believe reduce the anxiety to the child by sharing the responsibilities of parenthood in a more genuine and sincere manner with the father.
Conclusion
I found this a very difficult matter to resolve. To reject totally the cautious approach urged by Ms Johnson may expose, in her view, the child to risk and “cripple the contact”. Mr Trudinger is less concerned, although to some degree he relied upon his diagnosis of Separation Anxiety as justification for a firm and certain approach.
The conflict in the evidence of the two experts clearly confused the parties and only made my task more difficult. It is not necessary for me to make a definitive finding on whether the child suffers “Separation Anxiety” (as indicated by Mr Trudinger) or “general anxiety disorder (as indicated by Ms Johnson). The extent to which the child has been assessed raises considerable concerns about having another person (therapist, Griffith University Child Anxiety Clinic etc) further treat the child. This could only be of benefit if both the mother and father agree to both co-operate and adopt the strategies of such an independent expert. I do not think it would be helpful in this matter to order so, but I remain optimistic that in time that may occur.
Both parents are intelligent, caring and loving parents. I believe they both want the best for L. Neither wants a continuation of the litigation because I suspect, although they may both be skilled litigation lawyers, they have found through this expensive process that the result I have reached for L, may well have been achieved by them with greater trust and respect for each other and without the tensions these proceedings have created.
They must try harder and L would expect them to do so. I accept the evidence of Mr Trudinger that:
“there is value in helping children cope/overcome problems”
The order I will make is a combination of the cautious approach recommended by Ms Johnson and the positive action approach recommended by Mr Trudinger. I believe the parties have the capacity to assist L cope with a new regime. The must do so.
Ultimately I find that it is in the best interests of L for the contact regime to progress steadily and for there to be an increase now.
To some degree the decision is arbitrary, and relies upon a commonsense approach to the whole of the evidence.
The therapeutic benefits of a trial might act as a catalyst for these parents to work on their communication. Whilst the mother says they can continue to drop letters in the respective mailboxes, that is a very poor substitute for real communication focused on the needs of their daughter. They appear to be both natural communicators and should use those skills.
I have not regarded it as helpful or frankly necessary to make any findings about the parties, or past events, other than those already set out.
The orders I propose to make generally:
a)provide Monday night contact each off week progressing to overnight as proposed by the father;
b)alternative weekend from after school Friday to Sunday each alternate week to commence in the first week of contact after the October 2001 school holidays;
c)telephone contact once a week when the child resides with the mother or when the child is exercising holiday contact with the father;
d)holiday contact for 7 days during the 2001 October school holidays;
e)holiday contact for 2 periods of 6 days during the Christmas 2001/2002 school holidays;
f)holiday contact for 2003 being:
i)half Easter holidays;
ii)half June and September holidays;
iii)two periods of 7 days in Christmas 2002/2003 holidays;
g)for 2003 and thereafter one half of all school holidays; I do not propose to order, as sought by the mother, that the father only exercise holiday contact when he is available to provide full-time care and supervision. Whilst that is most likely to be the case, I am satisfied that the extended family of the father, in particular his parents, with whom the child enjoyed holiday contact over Easter 2001, would be suitable supervisors known to the child if the father was not available full time;
h)special day contact with the intention of the child spending Mother’s Day with the mother and Father’s Day with the father;
Christmas Day contact, with the father from 1.00 pm Christmas Day to 5.30 pm on 26 December in 2001 and odd years thereafter and from 5.30 pm Christmas Eve to 1.00 pm Christmas Day 2002 and each even year thereafter;
j)Normal cyclic weekend contact and mid-week contact shall be suspended during holiday contact;
k)The father shall be discharged from his undertaking given 20 December 2000 as a result of the evidence which did not satisfy me that the father had the difficulty with alcohol alleged earlier in the proceedings;
l)Specific issues orders in accordance generally with each of the party’s case outline, where there was essentially agreement.
Cost of Mr Trudinger
The father proposes that the mother pay to Mr Philip Trudinger the sum of $1219.55 for her share of his professional fees for the preparation of his report dated 10 September 2000. The mother opposes that order.
Paragraph (4) of the consent interim order of 20 June 2000 provides:
“That the parties engage the professional services of Philip Trudinger no later than the first week after the commencement of overnight contact referred to in paragraph (2) herein to assist the parties to facilitate contact and prepare a joint report if necessary in relation to the issue of contact on the basis that the parties share equally the costs of same.”
I am satisfied Mr Trudinger was properly retained to assist in the matter and that his first report of 10 September was “necessary” as contemplated by the order.
It does not appear that the mother formally objected to Mr Trudinger’s further involvement in the matter until the letter of her solicitor Margaret Jones dated 23 November 2000.
Although it is clear, on the evidence, that the relationship between the mother and Mr Trudinger broke down on or about 27 August 2000, the mother should not be relieved of the obligation to pay her share of the costs of the first report (imposed by the order of 20 June 2000) because of her concerns about the manner in which he undertook his role or the conclusions he drew from his observations. I do not accept the criticisms raised by the mother against Mr Trudinger to the time of this first report. The report of 10 September was clearly used by the parties in formulating the further interim consent order of 12 September 2000. This is clear from the first two notations to that order.
The mother shall be ordered to pay her share of the costs of Mr Trudinger, which I find amount to $1219.55, in the absence of any submission by the wife on quantum having been received.
Finally, the father sought an order for his costs of the proceedings. I am prepared to relist the matter for hearing that application within
14 days, if either party wishes to proceed with their application, including reserved costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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