AES and YEA - [2005] FMCAfam 474

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AES & YEA

[2005] FMCAfam 474

FAMILY LAW – Children – shared residence – young child – mother primary carer – where father’s application for permanent residence refused – father has appeal pending to Migration Review Tribunal – child likely to be distressed by separation from primary carer – it would be highly distressing to implement shared residence only to have the father forced to leave Australia – mother proposes supervised contact – no unacceptable risk – graduating arrangements for increased contact ordered.

Family Law Act1975, ss.60, 65, 68

B v B Family Law Reform Act (1997) FLC 92-755

Applicant:

AES

Respondent:

YEA

File Number:

PAM4473 of 2004

Judgment of:

Ryan FM

Hearing date:

20 April 2005

Delivered at:

Parramatta

Delivered on:

20 April 2005

REPRESENTATION

Solicitors for the Applicant:

Equity Lawyers

Solicitors for the Respondent:

James Papas & Associates

ORDERS

All prior parenting orders are discharged.
“The child” TARI (not her real name) reside with the mother.
The father have contact with the said child as follows:
(a)For three hours twice each week commencing 24 April 2005. If the parties are unable to agree on which days, it will be Tuesdays and Fridays;
(b)Thereafter upon completion of four consecutive weeks of contact as provided by order 3(a), from 10.30 am until 3.30 pm one day each week. If the parties are unable to agree upon which day, it will be Tuesday;
(c)Thereafter, upon completion of eight consecutive weeks of contact as provided in order 3(b), from 10 am until 5 pm one day each week. If the parties are unable to agree upon which day, it will be Tuesday;
(d)Upon the child reaching four (4) years of age, contact shall commence at 3 pm Sunday and end 12 noon Monday each alternate week;
(e)
Upon completion of eight (8) consecutive weeks of contact as provided in order 3(d), alternate weekend contact shall end at

5 pm Monday;
(f)Upon completion of four (4) consecutive weeks of contact as provided in order 3(d), alternate weekend contact shall commence at 9 am Sunday and finish at 5 pm Monday.
(g)On Father’s Day for the duration of contact that the father is then able to exercise. Contact shall be for no longer than 10 am until 5 pm.
(h)For the second half of Eid,
(i)For the second half of Eid Al Adha;
(j)At such other times as the parties agree.
As each stage of contact is reached the preceding contact arrangements cease.
For the purpose of determining the next stages for contact, the parties shall maintain a record of contact visits which both parties, or their nominee, must sign at the end of contact.
The father shall telephone the maternal grandmother no less than twenty-four (24) hours prior to contact to confirm that he will be exercising contact. If the father does not telephone, contact is suspended on that occasion.
Contact changeover shall take place at the maternal grandparent’s home.
Prior to the father commencing overnight contact he shall complete a parenting program such as the “Hey Dad” program offered by Barnardo’s. The father shall provide the mother with a certificate of completion.
Until further order the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the child TARI (a female) born 10 October 2002 from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
Each of the parties be entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the said child including any need for hospitalisation.
Each party keeps each other informed of all medical, dental and other health related treatment being undertaken by the child.
The parties shall agree on a family general medical practitioner who will be the child’s primary treating doctor. To the extent possible the parties shall ensure that the child attends their agreed treating doctor accompanied by one of the parties, except in the case of an emergency.
Both parties give each other not less than twenty one (21) days notice in writing of their intention to change address.
Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matters concerning the child only.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
Pursuant to section 65DA(2) of the Family Law Act 1975 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 these particulars are included in these orders.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM4473 of 2004

AES

Applicant

And

YEA

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Introduction

This is a shared residence application concerning the party’s two and a half year old daughter, Tari (not her real name). Since the parties separation in August 2004 Tari has lived with her mother. Since

6 October 2004 the father has had regular contact, usually for one or two hours at a time. Initially contact took place at a shopping centre but since late November 2004 it has taken place at the maternal grandparents’ home. This is where Tari lives with her mother. Although interim parenting orders provided for the father to have unsupervised day contact commencing 17 January 2005, this has not happened.
At the start of the hearing I invited the father's counsel to outline the relevant s.68F(2) factors and findings she contended would lead to a shared residence outcome. The father’s counsel submitted he was capable of caring for the child, and it is his right to do so. No challenge is made to the mother's capacity to meet the child's physical, intellectual and emotional needs. The father expresses no concerns about the child's care. He makes no complaint that the child is not meeting her developmental milestones in accordance with her chronological age. Counsel made no mention of the difficulties that arise if the fathers appeal to the Migration Review Tribunal against the Department of Immigration and Multicultural Affairs (DIMIA) rejection of his permanent residence application fails. The father concedes that the mother is and always has been the child's primary care giver. As Tari is so young I infer that she is strongly attached to her mother and that from her mother she derives her emotional security and general sense of well being. Because the father's counsel made no mention of the effect on the child of separation from her primary carer, I asked whether her client appreciated his daughter's needs for his primary carer. With respect to counsel's opening remarks I gained the sense that the father's case focused on "his rights" and to a considerably lesser extent, his daughter's best interests. As the hearing continued the father explained that indeed he is pursuing "his minimal rights." I remained unclear by what measure these rights were defined. The Family Law Act 1975, under which this application is brought, refers to rights and obligations. These rights are not independent of the child's best interests. The Act makes it perfectly clear the child’s interests are the focus of parenting proceedings.
Against this background it is surprising the father’s case was so considerably focused on his migration issues. At times it appeared his shared residence application was almost forgotten. I say this because the facts explored during cross-examination focused to a great extent on the mother's decision in February 2004 to withdraw her sponsorship of the father's application for permanent residence. Although criticised for doing so, her withdrawal was not only necessary, it accords with her obligation at law. Because the parties separated in February 2004 she could not proceed with her spouse sponsorship.
DIMIA have refused the father's application for permanent residence. Against this decision he has appealed to the Migration Review Tribunal and remains hopeful that he will be able to reside permanently in Australia. The Migration Review Tribunal has not yet set a hearing date for his appeal. The father's MRT appeal is pressed on compassionate grounds, namely that he has an Australian daughter with whom he wishes to remain in contact. Secondly, that he has a career as a hockey player and coach that he wishes to maintain. His employers, a local hockey club, have offered to sponsor his continued stay in Australia. While there is good reason for optimism he will at least achieve an extension of his visa, it is speculative at best whether he will secure permanent residence. I am in no way critical of the father's desire to reside in Australia or his determination to do everything within his power to this end. However he appears to have pursued a shared residence application in order to strengthen his claim to remain in Australia. Unfortunately he used this hearing to attack the mother's decision to withdraw her sponsorship of his permanent residence application after their relationship failed rather than focus on his daughters’ interests.
The mother opposes the father's shared residence application. Until the morning of the hearing the mother's formal position was that the father's application should be dismissed. The effect of this would have been to leave him without even contact orders. In this sense her response had little to do with the child’s best interests. Although the mother believes the father has used her to try and obtain permanent residence, this does not disentitle him to contact with their daughter. I sensed in the mother an internal struggle between her disappointment about her failed relationship with her husband and a desire that Tari enjoy a good relationship with her father. Ultimately the mother presented a proposal aimed at gradually building contact. The mother says contact should continue to be supervised for a while yet. Her rationale for supervision appears to be the following:
·To satisfy herself that the father knows how to adequately care for Tari during contact.
·That he demonstrates his commitment to Tari by exercising the contact to which he is entitled. The mother want regular contact, as irregularity is likely to be disappointing for Tari.
·That Tari is able to separate from her mother or maternal grandmother reasonably comfortably.
·That the risk that the father will act on his threat to keep Tari will diminish.

Chronology

The applicant husband was born in Egypt in 1977. He is one of five children.
The respondent mother was born in 1981, in Australia. The mother's parents are Egyptian and migrated to Australia with their family in the 1960’s. The parties thus share Muslim Egyptian ancestry and culture.
The husband arrived in Australia in May 1999. In Egypt he had been a professional hockey player and played at national level. He was sponsored to Australia by a Hockey Club, with whom he played hockey after he arrived.
The parties met in October 2000 at a humanitarian aid fund raising dinner.
On 10 November 2001 the parties married in accordance with Islamic rights. Thereafter they commenced cohabitation in a rented unit at Punchbowl.
In January 2002 the mother discovered she was pregnant with Tari.
On 1 February 2002 the parties registered their marriage with the Registry of Births Deaths and Marriages, by which time the father's sponsorship by his Hockey Club was nearing its end. Hence, the mother completed a spouse sponsorship application with DIMIA supporting the father's application for permanent residence.
Tari was born in late 2002. After Tari’s birth, the mother took between six and eight months maternity leave and cared for Tari on a full time basis. At this time the father worked as a professional hockey player, as well as in the security industry. The mother was thus primarily responsible for Tari's care. When the father was at home he spent time with his daughter and provided the mother with some assistance in her care. Overwhelmingly responsibility for the child rested with the mother.
In mid 2003 the mother returned to work. When the mother was at work Tari was cared for by her parents. When he was not at work and the mother was at work, the father spent some of his time at the maternal grandparent's home with Tari.
In February 2004 the parties separated for about two weeks and the mother and Tari moved in with the mother’s parents. During those two weeks the mother wrote to DIMIA and advised that the parties were separated and she thus withdrew her spouse sponsorship application. The mother did not tell the father she had done this. The parties resumed cohabitation at Punchbowl and lived together until 9 August 2004.
On 9 August 2004 the mother moved out and went to live with her parents, taking Tari with her.
The mother says that in the days immediately following their final separation the father approached her on a number of occasions, harassing her to support his permanent residence application. The mother's written evidence concerning harassment, although the subject of cross-examination is not denied by the father. Although there are contradictions in the mother's evidence it is not so inherently incredible that I could reject it. However, as time has passed the mother’s concerns have lessened and the father’s behaviour improved. There is little, if any risk; in the future that the father will harass the mother.
For reasons which never became clear the mother was questioned about a letter[1], in which she acknowledges infidelity. The mother says the father forced her to write the letter and that its contents are untrue. I accept the mother's evidence. She was clearly distressed when being cross-examined about this issue. I do not accept the father's counsel's proposition that, because it is true, it was written voluntarily. This is a flawed, circular argument. It seems more likely that the letter was coerced because the father perceived it may assist his application for permanent residence, or perhaps some other forensic purpose.
[1] Exhibit A
Because of the matters outlined in paragraphs 25 to 35 of her affidavit, the mother attended Punchbowl Police Station and made a statement to police officers concerning the father's conduct. On

16 August 2004 he was apprehended by Punchbowl Police. As his visa had expired he was detained and put in migration detention. It appears that this is when the father discovered the mother had withdrawn her support for his permanent residence application. The father remained in detention for seven days. He was released on

23 August 2004.
I agree with the father's submission that the mother's decision to keep secret from him her withdrawal of spouse sponsorship was a serious error of judgment. Although she had attempted to withdraw her withdrawal, she knew DIMIA refused to accept the second withdrawal. Obviously giving this information to the father during the marriage would not have improved the state of the marriage. While she may have had her own reasons for keeping this secret during the marriage she owed it to the father, at least after separation, to tell him what she had done. The father's detention is clearly regrettable. With reasonable communication between the parties and with DIMIA, his detention could have been avoided.
Immediately upon the father's release from detention he commenced this application. On 6 September 2004 he filed proceedings in this court. Unaware of the father’s application, the mother also filed an application on 7 September 2004 seeking parenting orders. With the filing of her application she was entitled to place Tari on the Australian Federal Police and airport watch list. She did this because she was afraid the father may try and take Tari out of Australia.
After the parties attended court ordered mediation on 6 October 2004, supervised contact started. Contact took place at the maternal grandparent's home, supervised by the maternal grandmother.
On 15 October 2004 interim orders were made which essentially provided for supervised contact at a local shopping centre. Contact occurred in accordance with the orders.
Further interim orders were made on 11 November 2004. These orders are set out below:
(1)By consent and pending further order, the child TARI born in 2002, shall live with her mother.
(2)By consent and pending further order, the parents shall have joint responsibility for the child’s long term care, welfare and development.
(3)By consent and pending further order, the father shall have contact with the child each Monday from 10am to 5pm commencing 15 November 2004.
(4)By consent, and until and including 17 January 2005, the father’s contact shall be exercised at the home of the maternal grandparents and thereafter contact changeovers shall occur at the home of the maternal grandparents.
(5)By consent and pending further order, the father and mother, by themselves, their servants or other agents are hereby restrained from removing or attempting to remove the child from the Commonwealth of Australia. It is requested that the Marshal of the Family Court and all agents of the Australian Federal Police and all police forces and services of various states and territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
(6)By consent and pending further order, the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration and Multicultural Affairs take all necessary steps to immediately place the said child’s name on the airport watch list, known as the PACE alerts system, at all points of arrival and departure in the Commonwealth of Australia.
(7)Pending further order and in addition to contact under order 3, the father shall have contact with the child each Sunday from 10am to 1pm, commencing 14 November 2004, and otherwise as agreed, such contact to be subject to order 4, unless otherwise agreed.

The father says he has exercised all the contact to which he is entitled pursuant to the November 2004 orders. The mother says the father's attendance for contact is irregular, and he has only exercised supervised contact at the maternal grandparent's home. I found this issue difficult to determine. There are inconsistencies in the mother's evidence. For example she says contact took place on 12 November 2004. This is a Friday and not a contact day. I do not accept contact took place that day. On 29 March 2005 the mother says in her affidavit she observed events during contact. Yet her diary[2] shows she was at work and not involved in contact. Thus she could not have observed what occurred during contact. The mother says occasionally her mother is unavailable and her father supervises contact, whereas the maternal grandmother says that she alone has supervised contact. These inconsistencies suggest that the mother's evidence on the frequency and duration of contact is not completely accurate. However do these inconsistencies mean I should accept the father's evidence that he has had contact each time he was entitled to it including unsupervised contact? But for the father's oral evidence concerning activities during contact I may have preferred his evidence on this issue.
[2] Exhibit B
In his affidavit the father describes activities during contact. Unfortunately for him, his oral evidence was no match for his written evidence. During cross-examination, the father was asked what he and Tari did during unsupervised day contact. Initially he said he took her to an Egyptian restaurant. When it was pointed out contact lasted from 10 am until 5 pm and it was thus unlikely a two and a half year old would last the distance at a restaurant, the father gave a different answer. He then said he took Tari to the Egyptian restaurant and also to the local hockey club. When it was pointed out she needed an afternoon sleep, he said he took her back to his home unit. Unfortunately, the father’s testimony on this issue was one of the worst examples of testimony constructed on the run I have seen. I formed the view listening to this evidence the father has no idea about appropriate activities for a two and a half year old child. If he had been exercising unsupervised day contact I would have expected much greater spontaneity describing contact and activities Tari enjoys away from the maternal grandparent’s home. Thus I am satisfied the father has not had unsupervised contact. I do not accept he has exercised all of the contact to which he is entitled. The reasons for this are twofold. Firstly, his unavailability; and secondly, the mother's concern that he may not return Tari, making her unwilling to comply with the orders.

Relevant Law

In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (1) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed: B and B: Family Law Reform Act (1995) (1997) FLC 92-775.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the child’s best interests.
Although not binding authority, pre-Family Law Reform Act cases give useful guidance to those factual matters that a court adjudicating a 50/50 shared parenting application pursuant to the current legislation, should consider.
Drawing from the case law, the factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child’s welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate, that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, the methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
This list is not exhaustive. It does no more than set out some usual elements a court will consider, to the extent that each may be relevant. It does not usurp the pivotal role of s.65E. Each factor fits comfortably within s.68F(2). Based on other courts experience, these factors have been useful in deciding the suitability of a particular set of circumstances for a shared parenting arrangement.

The father’s circumstances

The father lives alone in a two bedroom unit. He is a professional hockey player and currently plays with a local hockey club. In addition to playing hockey he has recently been employed as coach to the junior team. He trains between 7 am and 9 to 9.30 am most days. With the junior team he trains on Tuesday afternoons from about 4 or 4.30 pm, for two to two and a half hours. The junior team play competition games on Saturday. The father's professional games are also on Saturday. For him Saturday’s are mostly taken up with hockey during the hockey season. If Tari lives with him during the first half of the week, she will wait in the club or sit on the sideline during training. At 7.00 am in winter, this is a bleak scenario.
The father's youngest brother lives in Australia. The father has regular contact with his brother and his fiancé.
The father pays $21 per month child support. Although in his affidavit he says he is not working, he is on retainer to the hockey club. The club pays him $350 per week. He has savings in Egypt from which he draws about $100 per week. Presently his contribution to his daughters’ financial need is inadequate and reflects poorly on his understanding of his parental obligations.
I have no doubt that the father loves Tari and wishes to have a strong father/daughter relationship.

The mother's circumstances

The mother lives with her parents at Chullora. This is where she plans to reside indefinitely.
The mother works for an international humanitarian aid organisation. The mother works full time and whilst she is at work her parents, primarily her mother, cares for Tari. Like the father, the mother is a devout Muslim. They both want Tari to be brought up in Islam and sharing their Egyptian culture.

Determining the child’s best interests

The child is too young to have any wishes the court would consider.
Since her birth Tari has lived with her mother. Day in day out the mother's relationship with the child has been fundamental to the child's welfare. The mother is the child's primary carer and the child has her strongest attachment to her mother. This is a matter to which I give significant weight. Tari is strongly attached to her maternal grandmother, and the maternal grandmother complements the mother's ability to meet Tari's needs. Although the maternal grandparents are older, that is 74 for the grandfather and 68 for the grandmother, between them they are well able to care for Tari while her parents are at work.
Tari has a developing relationship with her father. Although he was not primarily responsible for her care prior to separation, he was part of her daily life. The father loves Tari and during that time the child is likely to have started developing a sound relationship with him. Their relationship has been disrupted since separation. This occurred because contact has been reasonably limited, and exercised in circumstances that have been less than optimal in terms of the father's ability to actively parent his daughter. With time, the father and daughter have the capacity to develop a strong relationship that is mutually enriching. This is a matter to which I attach considerable weight.
A critical issue in this case is the effect on Tari of changing her circumstances. I have no doubt that this two and a half year old would be greatly distressed if the father's shared residence application succeeded. She is too young to understand why she could not see her mother or maternal grandmother from 10 am Sunday morning until 10 am Wednesday every week. This is not an issue about the father's capacity to take care of Tari per se, it is about Tari's capacity to understand and cope with separation from her primary carer. I do not believe that separating this two and a half year old from her primary carer, to the extent the father wishes it, is consistent with the child's emotional and developmental needs. It concerns me that the father does not appreciate that, at only two and a half years old Tari is likely to be distressed if his approach is adopted, and that her distress may well be damaging psychologically both in the short and long term. While I understand his desire to spend more time with his daughter, he needed to think more about her needs before pursuing shared residence. Curiously, he did not consider the difficulties inherent in forcing these changes on Tari, and the possible subsequent failure of his MRT appeal. It would be highly confusing for Tari to implement shared residence and then have her father forced to leave Australia.
Presently the father is unable to meet Tari's emotional needs during longer contact periods. This is not a criticism of him, but a reflection of the child's primary attachment to her mother. Simply put, because Tari is primarily attached to her mother, it is in this relationship that her emotional needs are met. Whilst attachments can shift, forcing an unnecessary shift in a young child's primary attachment should only be undertaken if it is consistent with the child's welfare. In this case there are no compelling factors which indicate the court should force such significant change on the child. This is a factor to which I attach significant weight.
Undoubtedly the father's capacity to meet Tari's emotional needs will increase through greater contact with his daughter. Through increased contact, and as Tari grows older, she has a better capacity to separate from her mother and enjoy contact with her father. Enhancing their relationship involves commitment by both parents to regular contact combined with increasing contact at a pace consistent with the child's age and maturity.
An essential component of successful contact is a parent's capacity to adequately care for the child during contact. The types of activity the father describes in his affidavit are precisely the sorts of activities that Tari is likely to enjoy. However the activities the father described for contact during his oral evidence are inconsistent with successful contact. In my opinion the father would benefit from a parenting program aimed at assisting him to understand young children's needs. Whilst some people are intuitively competent parents, most first time parents need information and guidance from others, commonly their parents, about child rearing. Although the father has friends and a brother and sister in law in Australia, there is no evidence that he receives guidance about children. There are many community based parenting programs which instruct first time parents and/or separated parents about effective parenting. Sometimes parents feel insulted when the court recommends these programs, however my experience is that almost invariably they find them rewarding. Before the father starts overnight contact I will order that he completes a parenting program, such as the ‘Hey Dad’ program run by Barnados. He will need to produce a certificate of completion to the mother before overnight contact starts. My aim is to ensure that he has the necessary childcare knowledge so that contact works well from Tari’s perspective.
Courts are required to promote finality when making parenting orders. In this case, however, I am not satisfied that I can make orders that address all of Tari's long term needs. Essentially there are two reasons for this. Firstly, I do not know whether the father will obtain a visa that allows him to remain in Australia for years to come. Secondly, unsupervised contact is only about to start and although I am reasonably confident that regular contact will take place, I cannot be sure. Therefore I am not satisfied that I can make provision in these orders for block periods of contact that would take place many years hence. If regular contact takes place successfully and the father's MRT appeal succeeds, hopefully the parents can agree on additional contact as Tari gets older. If they are unable to agree then there will be further proceedings, a factor I take into account.

Conclusion

My conclusion is that Tari should live with her mother and have gradually developing contact with her father.
The mother has not made out a basis for supervised contact. While I accept that the father has threatened to take Tari and keep her, he has never acted on this threat. This threat appears to have been made during separation arguments. Although said in the heat of the moment, I accept the mother's fear that the father may remove Tari was genuine. During this hearing however, even she seemed to appreciate that the risk the father may keep Tari is slight. I do not accept that he would jeopardise his continued stay in Australia through doing so. It is counter intuitive that having tried so hard to live permanently in Australia, the father would take his daughter and depart. Provided Tari is on the airport watch list, even if he was minded to do so, the chance that the father could remove the child from Australia without the mother's knowledge is slight.
Unsupervised contact will start twice weekly for three hours. The father is quite capable of taking care of Tari on his own for three hours. After four weeks, contact will increase to 10.30 am until 2.30 pm one day each week. After eight such weeks, contact will then be 10 am until 5 pm one day a week. Contact will continue in this fashion until Tari is four, when she will be old enough for overnight contact. Overnight contact will start at 3 pm on Sunday and end at

12 noon on Monday each alternate week. It will then extend so that it ends at 5 pm Monday, before ultimately starting at 9 am on Sunday and finishing at 5 pm on Monday.
I make provision for special occasion contact during Eid and Eid Al Adhar and also for Father's Day. The contact arrangements gradually increase consistent with the child becoming more and more comfortable being in her father's care and away from her mother. Before contact moves to the next stage, prior contact must have been fully completed. As each new stage of contact is reached the preceding contact arrangements end. So that there is no argument about whether or not contact has occurred, the parties shall record the contact visits, signing a contact book at the end of each contact occasion. If they wish to, each can keep a book that the other must sign.
The father must telephone the maternal grandmother no less than 24 hours before contact to confirm that he will be coming. If he does not telephone, contact on that occasion is suspended. It is unreasonable to expect the maternal grandmother and Tari to wait expectantly for the father if he is not coming.
For obvious reasons I make the usual orders restraining both parties from taking Tari out of Australia. Officers of the Australian Federal Police and all other police forces are to assist in giving effect to these orders.
There are a series of parenting orders aimed at ensuring that both parties know where the other is living, practical orders to ensure reasonably consistent care and communication of information concerning Tari’s welfare. The parties do not communicate well and these orders are an attempt to ensure that they approach parenting issues in a reasonably consistent manner.
In her response the mother proposed that the parties have joint parental responsibility. I have not made this order. My refusal is because it is too uncertain whether the father will remain in Australia. It would be impossible in practical terms to have joint parental responsibility if one parent is in Australia and the other lives overseas. This issue can be reconsidered if the father's MRT appeal succeeds. In the meantime, both parties will have all the rights and obligations set out in the Family Law Act insofar as they relate to long term parenting responsibility.
For these reasons then I make the orders identified at the start of the judgement. I am satisfied they are in the child's best interest.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S.Mashman

Date: 5 November 2005