Appleby and Appleby

FAMILY COURT OF AUSTRALIA

APPLEBY & APPLEBY	[2013] FamCA 663
FAMILY LAW – PARENTING – Parental responsibility – with whom the child lives – Where Mother has had difficulty accepting the new partner of the Father – Where the animosity between the parties has had a significantly negative impact upon the emotional state of the child – s 60CC Family Law Act 1975 (Cth) – Best interests of the child – Finding of family violence – Father to have sole parental responsibility – child to live with the Father – Mother to have substantial and significant contact with the Mother.
APPLICANT:		Ms Appleby

RESPONDENT:	Mr Appleby
INDEPENDENT CHILDREN’S LAWYER:	Mr Kingston, Solicitor

FILE NUMBER:

BRC

9828

2008

DATE DELIVERED:

19 August 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

15 to 16 August and 19 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cooper of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT:

R J Cutler Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Frizelle of Counsel appearing for the Respondent Father

SOLICITOR FOR THE RESPONDENT:

MacDonald Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Middleton of Counsel appearing for the Independent Children’s Lawyer
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Norman & Kingston, Solicitors

Orders

IT IS ORDERED THAT:

All previous parenting Orders are discharged.

The child, B born … 2006, live with the Father.

The Father shall have sole parental responsibility for making decisions regarding the long term care, welfare and development of the child including, but not limited to:
a.   the child’s health (excluding care decisions regarding minor childhood illnesses);
b.   the child’s education including which school the child will attend save that the Father shall not make a decision that makes it significantly more difficult for the child to spend time with the Mother; and
c.   the child’s religion.

In exercising his sole parental responsibility, the Father shall consult with the Mother before making a decision by informing the Mother of the issue arising and shall invite the Mother to express her view on the issue within seven (7) days. The Father shall then be at liberty to make the decision.

The Father will inform the Mother of any decision he makes with regard to the child’s health, education and religion in the exercise of his parental responsibility.

The Mother and Father will:
a.   keep the other parent informed of their residential address, e-mail address and mobile telephone numbers, informing the other parent within two (2) days of any change;
b.   use email to communicate any non-urgent parenting matters or information;
c.   communicate with each other via text message to communicate any urgent parenting matters or information and to this end, each parent will maintain an operational mobile telephone to communicate with the other parent via text message;
d.   keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and this Order authorises any treating medical practitioner to release the child’s medical information to the other parent; and
e.   inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.

The parents authorise, by this Order, the schools or day care centres attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).

During the time the child is with either parent, that parent shall:
a.   respect the privacy of the other parent and not question the child about the personal life of the other parent;
b.   speak of the other parent respectfully; and
c.   not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

Time with the Parents

The child is to live with, spend time with and/or communicate with the Mother and Father as agreed between the parents and if they fail to agree then as follows.

The child shall spend time/live with the Mother during school term:
a. each alternate week from after school Friday until before school Monday (or the Tuesday if the Monday is a public holiday or pupil free day) to continue fortnightly thereafter; and
b. this Order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.

Otherwise, the child shall live with the Father during school term.
The child shall spend time/live with his parents for school holiday periods as follows:
a.   being the first half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years with the Father and in even numbered years with the Mother;
b.   the second half of the Autumn, Winter, Spring and Summer school holidays in even numbered years with the Father and in odd numbered years with the Mother; and
c.   for the purpose of these Orders, the school holiday time shall commence:
i.when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
ii.when a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 9.00am on the day the school term commences; and
iii.      school holidays shall be deemed to commence at close of school on the
day the school term finishes and conclude at 9.00am on the day the child return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Mother shall retain the additional night.

The child shall spend time with his parents on special occasions as follows:
a.   from 5.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years with the Father and in odd numbered years with the Mother;
b.   from 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years with the Father and in even numbered years with the Mother;
c.   on the birthday of the child (with the parent they are not living with on that day):
i.if a school day, from after school until 6.00pm;
ii.if a non-school day, from 1.00pm until 6.00pm;
iii.with that parent to be responsible to collect and return the child;
d.   with the Father on Father’s Day from 9.00am until before school Monday; and
e.   with the Mother on Mother’s Day from 9.00am until before school Monday.

The child shall communicate with his parents on the telephone at such times as the child reasonably requests, but otherwise between 5.00pm and 6.00pm on Wednesday and in relation to such communication each parent shall:
a.   ensure that the child is available to receive the telephone call;
b.   arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent; and
c.   ensure that the child have privacy during the conversation.

Collection and Delivery

Except as otherwise ordered, the Father and Mother shall collect the child from and return him to school during times that they have the child.

If the child is not attending school:
a. the child shall be collected by the Mother from the Father at the commencement of her time with the child at the BP Service Station at C Town; and
b. the child shall be collected by the Father from the Mother at the conclusion of her time with the child at the BP Service Station at C Town.

Each parent shall deliver and return the child’s clothing, school supplies and belongings and the child’s clothing shall be returned in a clean condition.

Dispute Resolution

The process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:
a.   Lifeline Australia shall be appointed as Family Dispute Resolution Practitioner;
b.   the parents shall consult with the Family Dispute Resolution Practitioner at a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangement for the child;
c.   the Mother and Father shall pay the costs of the Family Dispute Resolution Practitioner equally;
d.   in the event the Mother and Father are unable to for any reason have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise the Father in writing details of their fees, experience and availability;
e.   the Father shall choose one of the listed practitioners within seven (7) days of receipt of the list; and
f.   if the Father fails to choose then the Mother may choose.

Unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in the preceding Order.

IT IS FURTHER ORDERED THAT:

The Independent Children’s Lawyer be discharged.

Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Appleby & Appleby 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 BRISBANE

FILE NUMBER: BRC 9828 of 2008

Ms Appleby

Applicant

And

Mr Appleby

Respondent

REASONS FOR JUDGMENT

In this matter, it has been heard before me for a period of two and a half days. The material before me is substantial and I have had the opportunity of reading all of it. I make it quite clear that I myself personally would have preferred to have had some little extra time to be able to write perhaps a better-crafted judgment than what it will appear on an ex tempore basis. I consider that it is important – and it has always been my view, in 37 years on the bench – that the parties be entitled to know as speedily as possible the decision of the Court, not to hang around until some creature of beauty emerges from the foam of life, six to seven months down the line. The child, who is the boy involved in this case, deserves to know what is going on.
In this matter, the application is made on behalf of the mother of the child, Ms Appleby. The child is a boy who is now seven years of age, and he lived with his mother and father for a period whilst they were together. The father is, of course, Mr Appleby. The mother, at the time of commencement of cohabitation in about 2000, was already the mother of five older children who were living with her at the time. They loom to a certain extent reasonably large in this case, but I make it quite clear that I am not going to attack either of the parties or their children for what I will say overall is a dysfunctional family.
I am strongly of the belief that parents in particular are entitled to leave my court with some of their dignity intact. I do not believe that I should viciously attack them, magnifying what I – a stranger to the proceedings – consider to be their failures in relation to the boy, B.
The parties lived together until about September 2008, when they separated for a period. This was unfortunately brought about, as I understand, because of some difficulties that Mr Appleby had with one of the mother’s sons from a previous relationship.

RECORDED: NOT TRANSCRIBED

It was D. They separated, but eventually they seemed to have resolved their differences and got back together again, and it was during this period, as I understand, they worked things out reasonably well. However, it eventually broke down in the year 2010. Since that time, they have lived separately and apart.
In or about the year 2010, it appears as though a Ms E came on the scene. She and the father commenced a relationship. This was after, according to the father, separation – but since that time, they have lived together or they have commenced living together, and are now living together and are the parents, of two children.
I am able to say without one shadow of doubt that this caused a tremendous amount of hurt and alarm to the mother. Up until 2010, they had organised themselves insofar as contact by the child with his father and his mother. They were virtually sharing the boy. This was brought about as a result, the mother says, by the father insisting that she signed a parenting agreement which was subsequently endorsed – as she says, once again – by the magistrate. However, it was in force and effect, and it was working reasonably well. Both concede that.
Then Ms E became known to the mother, and it went pear-shaped after that. The mother quite clearly to me feels very, very hurt. She feels as though she has been replaced as the mother of the child. She feels as though she has not been given any respect, and that she is otherwise denigrated, and this has made her exceptionally annoyed. Perhaps I can understand that. Perhaps I can understand that she has been viciously hurt. Perhaps I can understand that she is bitter and cranky. I would not be surprised to be able to say, notwithstanding the fact there is no evidence before me, that she probably still loved Mr Appleby for a considerable period after separation, and this really upset her.
As a result of that, I say right at this stage that some of the conduct of the mother in relation to the child has not been in the interests of the child. I refer to her – I am not going to use the word “stalking,” which concerned her counsel quite properly, because there was a charge of stalking instituted against her by the relevant authorities, which has been withdrawn. But she has partaken in inappropriate conduct, as far as I am concerned. This did not affect the child because he did not know about it, but I use for one the example which took place in June last year.

RECORDED: NOT TRANSCRIBED

In June last year, she – living some 40 kilometres away from the farm upon which the father and at that time the child were residing – decided at about half past five in the afternoon to hitchhike to this property to see her son, whom she believed was ill. She got almost there. Police approached her. She had three pick-ups. She was almost there, and police attempted to find out who she was. She gave a false name, and thereafter we do not know how she got back. She did not in any way go and see the child.
She recognised through cross-examination by the independent children's counsel, Middleton, that in fact there would have been quite a catastrophic confrontation between the father and herself, this being about 10 o’clock at night, I think it was. She did it. She really had no explanation for it, other than she was worried about the child. Why did she not take a car? Did she not have a car? She has not told me anything about it. She had five children who appear to be in and out of her residence quite a lot, and why did she not rely upon one of them?
Then there is evidence before me, which I accept, that she has inappropriately confronted Ms E at the school. She has inappropriately confronted Ms E with motor vehicles. She has inappropriately approached the grandmother, notwithstanding the fact the grandmother may have given her some cause for being cross at her. She has done all these, I must say, silly things.
She has – and this is the one that concerns me the most – instilled, I think I could say that, in the child a concern about whom he should look upon as his mother. I say she has instilled it. She says that it is the father and Ms E who are at fault, in that they are attempting to denigrate her to such an extent, to have Ms E replace her as the mother. That may be the case, and I would not be surprised that she is referred to by the child – she concedes that he does refer to her as “mum” – but she has highlighted this so much in the child’s mind that – I refer to the one where he scrubbed out the name.

RECORDED: NOT TRANSCRIBED

The school report, where he was asked who lived in the house and someone wrote down his real mum or his mum, and he got very upset and said, “That’s not right, because if mum sees that,” and this was referring to Ms E. “If mum sees that, she will get very cross at me.” From that and other matters, I extrapolate that it is quite clear that she is upset about Ms E’s position. She is upset and feared that Ms E will perhaps supplant her as the mother of the child, but she has not been able to restrain herself from bringing that worry into the child’s (who is a seven year old boy) mind. It has concerned him considerably.
B is a boy who is not well emotionally. He has some minor physical disabilities as well. He is not well emotionally. I refer to Dr F, I refer to Dr G, I refer to Ms H, I refer to Ms I. One after another says that this boy emotionally is fragile. They do not use those words. They are my words, but they are the interpretation I make of these experts. He is not well. He needs stability. He needs warmth. He needs love. He needs affection. He does not need any pressure upon him. He should be entitled to grow up as a young boy loved by both his parents – and there is no suggestion by either of the parents that the parents other than love him, and love him deeply, I know that.
But there are more things in this world than just loving. There must be emotional support. Now, perhaps I seem to be attacking. I do not mean to attack. I mean to explain to the mother solely that the father is himself in a bit of trouble, as far as I am concerned. He is a farmer. He gives me the impression that he is a conservative, hardworking, hard man. He expects things to be done his way, and if they do not go his way, he, would tend to be very, very strong and definite in his views.
Two of the mother’s other sons – not J, who is the eldest boy; the next two – looked upon him, because he was around in their formative years, as their father. Regrettably, that has broken down. I have already mentioned it to Mr Appleby and I am sure he will consider doing something about it. I think these boys looked up to him, and I think they have been rejected by their father, and I think that has hurt them tremendously. I do not say it is the cause of their coming to the notice of the police on frequent occasions. They all have, save for K, if my memory serves me correctly, who is the youngest. L as well, was it? L and K. K is the youngest, and she is the only girl. By the way, there children were born as and by way of relationships by the mother with four different fathers.
The boys have not got good police records. A lot of them are involved with assault cases, and that worries me. They tend to give the impression that they have little control over their emotions. J concedes that, he is schizophrenic and he does have problems with anger management. Although he may have had a saviour now in that his girlfriend is pregnant, and soon to give birth to their child. It may be that he will now recognise that there are more important things in the world than getting drunk, perhaps, or having fights with other people, or perhaps having fights in pubs, being thrown out of pubs – as he infers, protecting his brother. But there are more important things in this world than that. There are more important things which will cause him to control his emotions, and it may be he will see the mother and the father in this case in a different light.

The other two boys – I do not wish, as I have said before, to investigate this dysfunctional family. It is dysfunctional because they do not put the child first. They put themselves first. The mother might be extremely irritating and the father flares. The father might be extremely irritating. The mother flares, and they flare over the boy. I have already mentioned the fact that perhaps I should become a little bit more disinterested in the well-being of children in this court. It has got worse over 37 years.
I would have thought, looking at this evidence – which I have looked at, and which I have touched upon, perhaps briefly – this is a question of the least detrimental alternative, save for one thing. I think at long last these parents have woken up to the fact.
Dr F, in his report, recommended that they try and get rid of all this personal animosity. Another doctor has said it. Three people have said it. They have got to get rid of the animosity. Be cranky at each other, but do not let it happen in front of the child. Be bitter about being supplanted in her own mind. Do not push it down the child’s throat. Be responsible to the child. Do not have him pedalling around the park on a quad bike when he was three, I think it was, or four. I know he is a country boy. I have had some experience with it myself. I know he is a country boy. They drive cars before half of them can walk, but that does not mean that I should approve of it. I do not.
The mother is not a country person. She does not recognise that as being sort of what happens in the country. It does happen in the country, but it is not going to happen from now on. I have looked at all the evidence before me. One of the evidence which intrigues me particularly and impresses me is that of Ms H, who gave evidence by phone, unfortunately. You have to do that nowadays. She has filed an affidavit on 8 August 2013. She is now a private psychologist. I say now in private practice because she was not previously in private practice. I commend to the parties, and I am sure they have read it, her report. Perhaps all of the tests and things like that are of little assistance to anybody except to a psychologist, but the pages I would request them to look at closely are pages 12 and 13 of her report.
Under the subheading Clinical Impressions About the child’s Perceptions, there are four dot points there which I incorporate into these, my reasons for judgment. On the next page, there are eight dot points under the child’s Treatment Goals Are As Follows, and then, of course, there is the recommendations at the bottom. Those two pages are particularly helpful, and I sincerely hope that the parties read them, and inwardly digest them, and take them to heart.
If there is any necessity to emphasise anything in particular, the mother has, in fact, been very concerned about, perhaps, what she considers the father’s happy-go-lucky attitude towards the child’s health. the child was showing signs at an earlier stage of the pervasive disorder which Dr F has referred to and diagnosed, and the father would not accept it. He was of the view that his son was not going to be labelled as something which conservative farmers sometimes think is not normal. Eventually he has accepted that.
I accept the fact that Dr F told him that he need not worry about those drugs “when the child is with you.” The mother does not accept that. She says that she is concerned that the father was not complying with the recommendations of Dr F, that he was not medicating him properly, and by the way, one of the medications which was recommended was dexamphetamine, initially one quarter tablet.
But if she was so concerned, and if the child was showing bad symptoms, I would have thought she would have taken him back either to Dr F or some other doctor. Dr F has not seen this boy since 6 August 2012. He is concerned, as he said by way of telephone, as is the want of experts nowadays, he does not know whether he is still the child’s paediatrician or not. Notwithstanding that, it appears as though, with what must be an old prescription, that the mother is still getting dexamphetamine from her local GP, over 12 months subsequent to the last time Dr F saw the child, and she says it is on Dr F’s prescription. I must say, it quite surprised me. However, that may be the case, something I do not know about.
But he has not been taken back for any of the symptoms of which she complains, which she says are in her presence, and should be in the presence of the father. The father said he does not have any problems with the child. He sleeps well, he is normal, he eats. He does have some problems that Ms E referred to. She is hypersensitive about this because her boy, M, suffers from ADHD, and he has these symptoms which she noticed were somewhat similar in the child. the child is not as far as that.
But he has not seen a medical practitioner other than what fell from the father for normal childhood illnesses since August last year. What is wrong with him? Nothing. Mustn’t be, because the mother is so fond of her child, is so aware of his health, that she would have done something about it if there was anything wrong. There was nothing wrong.
He is developing well. He is attending at school which now, according to what the material says, is recognising that he has improved. And he is a much better boy than what he was when he was a bit of a handful. He is not any more. He has settled in, he has his friends there. And there should be no way in the world he be removed from that school, because, basically, these children need stability. He has got stability insofar as the school is concerned.
I have to consider a presumption of shared parental responsibility. This is a classic case where you could not have it for two reasons. There has been domestic violence. I refer to the matters set out, which Mr Appleby concedes he was inappropriate. Not on all occasions. The mother has conceded that she has been inappropriate on some occasions. I have to consider whether there should be shared parental responsibility.
Shared parental responsibility - whether there are assaults or not involved, has to move from a consensus. There must be a consensus between the parents insofar as the welfare of the child is concerned. If they cannot agree, which they could not, in this case, could not I use those words advisedly, could not, I cannot see how you can possibly have shared parental responsibility. Someone is going to have to have the sole parental responsibility. And in this case, I am of the view that, because of the evidence that has been given me, and which I will now touch upon in relation to s 60CC, I will have to make that unfortunate decision.
The s 60CC factors are extensive. I do not have to refer to every one seriatim. The Full Court has held that it is only necessary to refer to those ones which persuade me to find one way or the other.
Section 60CC(2)(a) is the one about whether there is a benefit to the child having a meaningful relationship with both the child’s parents. I can only refer to Dr F, who said that the child was particularly happy to see the mother, but was teary and weepy, and then, after he settled down, was particularly happy to go off with his father. I do not think he had seen his mother for a little while. A meaningful relationship is important to all children. In this case, I am sure that there is a meaningful relationship. It is just that the parties have got to think a little bit more about him, not about themselves.
The need to protect a child, s (2)(b), the need to protect the child from physical or psychological harm by being subjected to, exposed to, abuse, neglect or family violence. There has been family violence. I accept what Mr Appleby said. It was on three occasions that such violence took place in front of the child. One act is too many for a child, particularly of the child’s age and the child’s emotional fragility.
Insofar as s (3)(c) is concerned, the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, this is the one that concerns the mother in particular. She is of the belief, as I have said before, that Ms E and Mr Appleby are attempting to alienate the child. There is no evidence that I would accept of alienation. If they have attempted to do it, they have failed, because the child still loves his mother dearly, is thrilled to see his mother, save when, perhaps, she puts pressure on him about who is his real mum.
I am concerned that the mother, and clearly on the evidence, I am finding that the mother has, unfortunately, brought her own fears, her own fragilities in relation to Ms E, to the forefront insofar as her dealing with the child. She must stop that. That is causing a great deal of problems. That could be the reason why the child prefers, as the evidence is, to be in his father’s household.
There is another reason, of course. This has fallen from counsel for the independent children's lawyer, and that was that it was his original home anyway. And he has got young people there. He does not have older people who are in and out, and that is the stepbrothers and sister. He does not have that older confrontation. And that is understandable. I think there is, in Mr Appleby’s household, there are four young children plus the child. And he appears to be becoming a country boy.
That complaint that I directed towards the mother probably also arises under

s 60CC(2)(i), that is, the attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents. It worries me.
Other than that, I do not feel that it is necessary for me to touch upon anything else, except for s 60CC(4), which I must look at. And these are the matters where I consider that it is unfortunate that the judge is called upon to point out the failures of each of the parents, or of one of the parents. I do not believe that that is absolutely essential. I am more than satisfied what I have said complies with subsection (4), and I need not go any further in belting people around the heads with what I say. As I have said, I think it is absolutely essential that people leave this court with their dignity intact, and I sincerely hope they will.
Regrettably, and I say regrettably for the mother, because I think she is a good mother, and I do not say that there is a winner in this case. The mother has quite honestly conceded, and this was good, she conceded that he is a wonderful father. He conceded she is a good mum, grudgingly, perhaps, grudgingly, after being asked by Cooper, of counsel. But he conceded she was a good mum. She was a clean woman.
The communications book impressed me. In that communication book, instead of sort of throwing ordure at each other in the book, as happens frequently in this court, there was reasoned, sensible discussions between the parties. There were apologies between the parties for overlooking things. I was particularly impressed with that. I think that there is a great chance of success in the future. The parties have recognised that if, in fact, they continue the way they are, they will be back before me, and we might start looking around for K, or someone else, to take the child away, and just act as if it is her child. I am being facetious. I do not mean to be. But I can remove the child from both of you. To whom it would go, I have no idea, but nevertheless, we have tremendous power in this court. So wake up to yourselves.
Regrettably, as I said, I must find that the child should remain with the father, and that he should be the sole person responsible for the parenting of the child, that he live with the father. And that I have looked at the draft orders put up by the respective parties, and I am of the view that the proposed orders of the independent children’s lawyer will meet everything that is necessary.
There was a suggestion by Ms N initially that she thought the child should live with the mother, and she referred particularly to the question of the “real mum”. And that worried her intensely. But after seeing further material that she was not privy to at the time of her making the recommendation – her last report is at least 12 months old, she was of the view the child should live with the father. She has changed her view, and whilst I do not have to agree with her, I do agree with her. It is a close-run thing. Very close-run.
And it is difficult for me to sit in a position of saying the child goes to the father. But it does. Taking into consideration the best interests of the child, he must be removed, as much as possible, from the pressure which the mother has brought to bear upon him, whether wittingly or unwittingly, by her obsession with Ms E. Ms E is on the scene. She is now the mother of two children to Mr Appleby. She has other children. She is on the scene. So the mother must recognise that she has got to the best for the child, not for herself. I think also for herself, because I think it might be eating away at her. And I hope it has stopped eating.
So, consequently, taking into consideration what has been said by all counsel – I note Mr Middleton has brought to my attention the fact that there has been a reduction in their original submission from Thursday evening to Friday, which I think is quite proper – the parties obviously must, as far as practicable, not see each other, although I hope that things will improve in the future. As a result of that order, the child will be picked up after school by one.
Also, it is absolutely important that if they have to contact each other, perhaps school holidays and things, that it be just the two of them. And Mr Appleby is of the view that, in fact, it is much easier without Ms E. And obviously it would be. I am sure the mother will feel much more comfortable without Ms E being about, and consequently, I approve of the contents of the proposed order of the independent children's lawyer.
I have to decide whether there is significant and substantial contact. I am more than satisfied that it is adequate in all the circumstances. There is no reasonable impracticality in the orders, since the parties are within 40 km of each other, and it is in the country area, and quite a salubrious area of Queensland.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 19 August 2013.

Associate:

Date: 19 August 2013

[2013] FamCA 663

19 August 2013

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