ASHFORTH & ASHFORTH

[2011] FamCA 674

FAMILY COURT OF AUSTRALIA

ASHFORTH & ASHFORTH [2011] FamCA 674

FAMILY LAW - CHILDREN – interim proceedings – with whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Ashforth

RESPONDENT: Ms Ashforth

FILE NUMBER: MLC 9801 of 2009

DATE DELIVERED: 25 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 19 August 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Othen

RESPONDENT: Ms Ashforth

Orders until further order

1. The father shall spend time with the child E born … April 2009 as follows:

   (a)Thursday, 29 September 2011 from 9.00 am until 10.00 am with handover to be at the maternal grandfather’s offices at Suburb A

   (b)Friday, 30 September 2011 from 4.00 pm until 6.00 pm with the child to be collected from the maternal grandfather’s offices at Suburb A and collected at the father’s accommodation in Suburb C

   (c)Saturday, 1 October 2011 from 1.00 pm until 4.00 pm with handover to be at the father’s accommodation in Suburb C

   (d)Sunday, 2 October 2011 from 1.00 pm until 4.00 pm with handover to be at the father’s accommodation in Suburb C

   (e)Tuesday, 4 October 2011 from 8.00 am until 10.00 am with handover to be at G Early Learning Centre

   (f)Wednesday, 5 October 2011 from 8.00 am until 2.00 pm with handover to be at G Early Learning Centre

   (g)Thursday, 6 October 2011 from 8.00 am until 4.00 pm with handover to be at the father’s accommodation in Suburb C

   (h)Friday, 7 October 2011 from 8.00 am until 4.00 pm with handover to be at the father’s accommodation in Suburb C.

2. Pursuant to Section 65DA(2) and Section 62B, 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 adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

3. All documents to be served on the mother personally according to the Family Law Rules 2004 be served on the mother’s Notice of Address listing.

4. By consent the father is hereby restrained from attending on the mother’s home address or work premises.

5. By consent, the wife is to comply with requests for discovery made by the husband of the wife on 28 July 2011 within 14 days.

6. By consent orders are made in terms of paragraphs 1 to 5 (as amended) of the procedural orders contained in the father’s Minute of Orders:

   (1)That the wife deliver to the husband’s solicitor at Court on
   19 August 2011 a TR1 document for the transfer of the property at [L] London into the name of the husband signed by her in the presence of a witness (pursuant to the Orders of His Honour Fowler made 28 July 2011) in the form delivered to her on 15 August 2011.

   (2)That the following experts are appointed further to the orders made 15 April 2011:

   (a)[D Accountants] to value the husband’s pension entitlements

   (b)[F Accountants] to calculate the parties’ capital gains tax liabilities in relation to the 4 parcels of real estate

   (c)The husband to nominate within 7 days two valuers and the wife to choose one of these to value the property at [P] London, UK

   (d)[I Agency] to value the property at [Town H], UK

   (e)[J Agency] to value the property at [Town B], UK

   (3)That the husband and the wife promptly comply with any requirements of all experts appointed pursuant to orders of this Court to secure their reasonable fees.

   (4)That the wife deliver to the husband’s solicitor within 7 days signed copies of letters of instruction to the experts referred to in Order 2, and to [Dr W], in the form delivered to her on 16 August 2011, and the husband’s solicitor shall cause the same to be delivered to each expert promptly on receipt of the signed letters of instruction from the wife.  In the event that the parties cannot agree on a letter of instruction, the letter of instruction is to be in a form settled by a Registrar of this Court.

   (5)That the time for filing the proposed minute of order referred to in paragraph 15 of the Orders made 15 April 2011 is extended to 14 September 2011.

7. By consent orders are made in terms of paragraphs 2 to 14, 25, 26 and 28

   
   

   (as amended) of the procedural orders contained in the mother’s Minute of Orders:

   (2)That the husband provide the wife with copies of all correspondence between the husband and [M Agency] over the period from 1 February 2011 to present.

   (3)That the husband provide the wife with copies of all correspondence between the husband and Bishop & Sewell over the period from 1 February 2011 to present.

   (4)That the husband provide the wife with copies of all correspondence between the husband and any prospective purchaser over the period from 1 February to present.

   (5)That the husband provide the wife with copies of all correspondence between the husband and any prospective purchaser’s legal representative over the period from 1 February to present.

   (6)That the husband provide the wife with a copy of the exchanged contract for sale.

   (7)That the husband provide the wife with a copy of any receipt for holding deposit relating to the sale of the property.

   (8)That the husband provide the wife with a copy of any receipt of deposit funds relating to the sale of the property.

   (9)That the husband provide to the wife confirmation from Bishop & Sewell that any holding deposit and deposit are or will be held in their trust account until the completion of the sale.

   (10)That the husband provide to the wife a copy of any invoice received from [M Agency] relating to the sale of the property.

   (11)That the husband provide to the wife a copy of a receipt from [M Agency] relating to any monies received by [M Agency] relating to the sale of the property.

   (12)That the husband provide to the wife a copy of a receipt from Bishop & Sewell relating to any monies received by Bishop & Sewell relating to the sale of the property.

   (13)That the husband provide to the wife a copy of a receipt from [Company K] relating to any monies received by [Company K] relating to any works done to the property by any party instructed by [Company K] on behalf of the Leasehold owners of the property.

   (14)That the husband provide to the wife a copy of the notice that was served on the tenants to the property.

   (25)That the husband account to the wife for all monies received by the husband upon his sale of the [VW] previously owned by the husband and the wife, noting the wife’s financial contribution to the acquisition of this vehicle in 2007/2008.

   (26)That the husband provide the wife with statements for all monies held both in the joint names of the husband and wife and the husband’s sole name by [G Holdings].

   (28)That the husband provide the wife with a copy of the bank statement for his US bank account showing the date that the account was closed and any statements relating to this account for the period of 24 months prior to the date that this account was closed.

8. The husband is to provide to the wife within 21 days details of the information he says he has provided in compliance with the request contained in the wife’s Minute of Order numbered 27 and, in the event that there are items therein requested available to him which he has not produced he is to produce those within the same time.

9. The husband is to disclose within 21 days particulars of all income, benefits, entitlements, allowances, posting allowance, tax free benefits and any private and/or confidential job payments to Company D.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ashforth & Ashforth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 9801 of 2009

Mr Ashforth

Applicant

And

Ms Ashforth

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are interlocutory proceedings in which the father by his Application in a Case filed on 19 July 2011 seeks orders that his child, E, born in April 2009 and currently aged 2 years and 4 months, spend time with him on his visit to Australia in September 2011.

2. The father is a British public servant currently posted to a country in South Asia and will be in Australia from 29 September to 7 October 2011.  The father will be in Australia for the purpose of attending independent expert conferences for current proceedings before the Court and wishes to spend time with the child while he is here.

3. The father seeks to spend time with the child every day that he is here ranging from periods of 2 hours to 10 hours.  The father proposes various timing and transfer arrangements for each of the days on which he proposes to have contact.  The father also sought for the mother to facilitate communications through Skype on three occasions each week.

4. The father has had prior contact with the child on his visits to Australia between 28 April – 16 May 2009;  23 December 2009 – 7 January 2010;  

   
   

   1 – 22 August 2010;  21 – 31 December 2010;  and 26 March – 12 April 2011.

5. The mother did not oppose contact, however proposed that contact take place for a shorter duration with less intensity.

6. The mother sought orders that the child spend time with the father between

   
   

   29 September and 7 October 2011 for 1 hour on the first day, 2 hours for the following five days and 8 hours on the following two days.  The mother sought that the handovers are to take place either at G Early Learning Centre, at the mother’s father’s office premises or through the mother’s representative at a local police station.  The mother also sought that the father and his representatives be restrained from attending the mother’s home or work premises.

7. The mother and father also sought procedural orders of a financial nature.  The following Orders were agreed by consent as set out in the father’s Minute of Orders:

   (1)That the wife deliver to the husband’s solicitor at Court on
   19 August 2011 a TR1 document for the transfer of the property at [L] London into the name of the husband signed by her in the presence of a witness (pursuant to the Orders of His Honour Fowler made 28 July 2011) in the form delivered to her on 15 August 2011.

   (2)That the following experts are appointed further to the orders made 15 April 2011:

   (a)[Company D] to value the husband’s pension entitlements

   (b)[Company F] to calculate the parties’ capital gains tax liabilities in relation to the 4 parcels of real estate

   (c)The husband to nominate within 7 days two valuers and the wife to choose one of these to value the property at [P] London, UK

   (d)[I Agency] to value the property at [Town H], UK

   (e)[J Agency] to value the property at [Town B], UK.

   (3)That the husband and the wife promptly comply with any requirements of all experts appointed pursuant to orders of this Court to secure their reasonable fees.

   (4)That the wife deliver to the husband’s solicitor within 7 days signed copies of letters of instruction to the experts referred to in Order 2, and to [Dr W], in the form delivered to her on 16 August 2011, and the husband’s solicitor shall cause the same to be delivered to each expert promptly on receipt of the signed letters of instruction from the wife.  In the event that the parties cannot agree on a letter of instruction, the letter of instruction is to be in a form settled by a Registrar of this Court.

   (5)That the time for filing the proposed minute of order referred to in paragraph 15 of the Orders made 15 April 2011 is extended to
   14 September 2011.

1. The following procedural orders were agreed by consent as set out in the mother’s Minute of Orders:

   (2)That the husband provide the wife with copies of all correspondence between the husband and [M Agency] over the period from 1 February 2011 to present.

   (3)That the husband provide the wife with copies of all correspondence between the husband and Bishop & Sewell over the period from 1 February 2011 to present.

   (4)That the husband provide the wife with copies of all correspondence between the husband and any prospective purchaser over the period from 1 February to present.

   (5)That the husband provide the wife with copies of all correspondence between the husband and any prospective purchaser’s legal representative over the period from 1 February to present.

   (6)That the husband provide the wife with a copy of the exchanged contract for sale.

   (7)That the husband provide the wife with a copy of any receipt for holding deposit relating to the sale of the property.

   (8)That the husband provide the wife with a copy of any receipt of deposit funds relating to the sale of the property.

   (9)That the husband provide to the wife confirmation from Bishop & Sewell that any holding deposit and deposit are or will be held in their trust account until the completion of the sale.

   (10)That the husband provide to the wife a copy of any invoice received from [M Agency] relating to the sale of the property.

   (11)That the husband provide to the wife a copy of a receipt from [M Agency] relating to any monies received by [M Agency] relating to the sale of the property.

   (12)That the husband provide to the wife a copy of a receipt from Bishop & Sewell relating to any monies received by Bishop & Sewell relating to the sale of the property.

   (13)That the husband provide to the wife a copy of a receipt from [Company K] relating to any monies received by [Company K] relating to any works done to the property by any party instructed by [Company K] on behalf of the Leasehold owners of the property.

   (14)That the husband provide to the wife a copy of the notice that was served on the tenants to the property.

   (25)That the husband account to the wife for all monies received by the husband upon his sale of the [VW] previously owned by the husband and the wife, noting the wife’s financial contribution to the acquisition of this vehicle in 2007/2008.

   (26)That the husband provide the wife with statements for all monies held both in the joint names of the husband and wife and the husband’s sole name by [G Holdings].

   (28)That the husband provide the wife with a copy of the bank statement for his US bank account showing the date that the account was closed and any statements relating to this account for the period of 24 months prior to the date that this account was closed.

1. The proceedings were ones in which the respondent was self-represented.  The applicant did not attend the proceedings.

2. The child is currently in long-day care from Monday to Wednesday, and is usually in the care of the maternal grandparents from Wednesday afternoon until Friday evening.

3. The discrete issues are the number of days the child should spend with the father and the period of time which should occur.

4. There was the question of the facilitation of contact through the use of Skype.  The mother’s evidence was that she was not prepared to facilitate contact through Skype as the father had caused her emotional distress and, as per Court Orders he is restrained from having any contact with her.  The G Early Learning Centre and the maternal grandparents will not facilitate contact through Skype either.  This is problematic as the Child Responsive Programme indicated that contact through Skype would be important in facilitating a relationship between the father and child during times when he is working overseas.

5. The practical arrangements of handover of the child during the contact period were open for debate.

The Evidence

1. The father relied on his affidavit filed on 19 July 2011 and an affidavit of Ms R filed on 19 August 2011.

2. It is the father’s evidence that he sought to reach agreement with the mother for the child to spend time with the father on his next visit to Australia.  He asserts that a letter was sent to the mother’s legal representatives on 31 May 2011 setting out proposed contact arrangements as well as a request for the facilitation of contact through Skype.  A response was received on 1 July 2011 requesting the dates that the father was proposing to visit Australia.  On 7 July 2011 the father’s legal representative caused a letter to be sent to the mother’s legal representatives setting out the father’s dates of travel and a request for contact arrangements, to which a response was not received, which caused the father to file the present application.

3. The father states that his proposal for parenting arrangements are based on his change in circumstances with his move to Australia in December 2011, previous judgments and recommendations by the Court and advice provided by Dr N, the child psychologist proposed by the mother in December 2009.

4. It is the father’s evidence that on previous contact visits, the travel time and distance between Suburb A and Suburb C had a significant impact on the nature of time he was able to spend with the child.  The father has previously expressed concerns about transit time and mechanics of transfer.  It is for this reason that the father has arranged accommodation in Suburb C for his visit which is in close proximity to the child’s pre-school and the mother’s residence.  He also states that due to financial pressures he is unlikely to be in a position to rent a car during his visit.

5. The father also states that on his previous visits to Australia, the most unsettling periods for the child were at handover, and therefore that there should be an effort to reduce or remove any cause for undue distress for her prior to, during and after these events.  As per the Orders made on 4 November 2010 the handovers took place at the father’s rented accommodation, which the father considered a successful arrangement for the child.

6. The father asserts that there has been non-compliance with the Orders of

   
   

   4 November 2010 requiring the mother to provide the father written reports in relation to the child’s care, welfare and development;  provide the father photographs and videos of the child;  and authorise and direct any medical or other health professional attended upon by the child to communicate with the father the child’s medical history and treatment.  The mother denies this and asserts she has complied with the Orders.

7. Ms R is a close friend of the father and his family.  Ms R’s evidence was that she had spent time with the father and child on the father’s previous visits to Australia, and that she had observed there to be a close and special bond between the father and child, and that they appear very comfortable and relaxed in each other’s company.  She also stated that the child has been spontaneously affectionate with the father and interacts with him well through play.

8. Ms R also provided evidence that on the father’s last visit in March and April 2011, she observed that the child was well behaved, and that she has never seen the child cry or be upset in the father’s company.

9. The mother relied on her two affidavits filed 18 August 2011, and affidavits of her mother and father filed 18 August 2011.

10. Part of the mother’s evidence was a letter from her General Medical Practitioner which detailed that the mother has acute, debilitating episodes of anxiety and stress related to her ongoing court cases and associated matters.  The mother has been treated for chronic anxiety and stress and has seen a clinical psychologist for treatment.

11. The mother relies on a letter provided by her clinical psychologist,

    
    

    Ms O, to support her argument that she is unable to facilitate contact between the father and child through Skype.  Ms O states that:

    any contact, whether face to face, by telephone, email or any other means between [the mother] and her ex-husband would significantly adversely affect her and have a detrimental impact on her mental health and treatment.

    Ms O also states that the mother has an acute anxiety disorder, with the possible future diagnosis of post-traumatic stress disorder, which has developed as a result of the events of her marriage and subsequent separation and custody conflict.

1. The mother’s evidence relied on recommendations made in Ms Q’s Family Report dated 24 December 2010.  In her submissions she stated that the current Court orders should continue as the Family Report recommends that such arrangements should continue up until the child commences school.

2. It is the mother’s submission that the father’s concern with transit time is about his own level of convenience and comfort, rather than that of the child.  It is her evidence that the child is a good traveller in the car, that she rarely complains, and that they usually spend long car trips singing and talking to each other.  She states that the child could not suffer “undue stress” as suggested by the father in relation to the trip between Suburb C and Suburb A, as the child makes such trips with the mother and her grandparents regularly.

3. It is the mother’s evidence that as a result of her acute anxiety disorder she is unable to facilitate handovers with the father, and therefore requires assistance from family members and friends.

4. The mother’s father, Mr V, stated in his affidavit that he could be involved in changeover arrangements provided these occurred at his office.

5. The mother’s mother, Ms V, stated in her affidavit that as a result of a verbal tirade with the father during a changeover in August 2010, she became extremely distressed and lost her voice, and as a result developed nodules on her voice box.  She states that since this occasion she will not participate in changeovers with the father without a witness present.

6. The maternal grandmother also stated that she is not willing to take or collect the child from Suburb C for visitation with the father, and she is not willing to facilitate contact through Skype between the father and child.

7. It is the maternal grandmother’s evidence that the child’s behaviour has been different during the time of the father’s visitation;  that she has been unsettled and has had disturbed sleep.

8. The mother’s submission was that the father has made many applications for access which clearly exceed the orders made by the Court previously, and that the father has placed greater importance on his own interests and levels of convenience rather than the best interests of his child.

9. It is the mother’s submission that handovers take place either at her father’s office in Suburb A or at the local Police Station.

10. Observations were made in Court that the mother was in tears, she was angry, shouting and on occasion unable to speak.

11. The amount of time the father seeks is excessive when taking into consideration the child’s age and the amount of time he is going to be in Australia.  A progression towards further time is possible when the father moves to Australia which he proposes to do in December later this year.

12. The father states that he has gained a British public service posting to Australia for 13 months from December 2011 until January 2013, with his posting in Canberra to commence in January 2012.

13. The mother sought to restrain the father from filing any further applications in the case regarding time spent with the child.  I do not intend to make an order to this effect.  The father’s application was not flippantly or vexatiously made and did so after trying to reach agreement with the mother’s legal representatives.

Relevant Law

Legal principles

1. The principles governing this case are set out in the Family Law Act 1975

   
   

   (“the Act”).  In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see s 60CA).  In determining what is in the child’s best interests, I must consider certain matters under s 60CC.  Those matters are the “primary considerations” and the “additional considerations” (see ss 60CC(2) and (3) respectively).

2. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see s 60CG).

3. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.

4. I am required to consider matters set out under s 60CC(4) and (4A) of the Act.  Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

5. Section 61DA(1) requires that:

   … When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   Subsection (4) provides as follows:

   … The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. Where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility for the child, s 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. It is axiomatic ordinarily that children should have a meaningful relationship with each of their parents providing that such a relationship does not lose meaning by being harmful to them.  This child needs a relationship with each of her parents.  It is the Court’s view that the orders will assist in the child developing a meaningful relationship with her father who has been absent for significant periods in her life.  It is important that the child is able to spend time with her father when opportunities such as this arise due to the nature of the father’s work in the British public service in a country in South Asia.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. There is no evidence before the Court of physical or psychological harm to the child, or that the child has been exposed to abuse, neglect or family violence.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child is aged 2 years and 4 months and is of an age where her views would carry but small weight.  The evidence suggests that the child is happy in both the mother’s and father’s company.

(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

1. The child has a close and loving relationship with her mother and maternal grandparents.  She spends from Wednesday afternoon to Friday evening with the maternal grandparents while the mother is working.

2. On the evidence before the Court it appears that the child also has a close and loving relationship with her father and enjoys spending time with him when he is able to visit Australia.  The Court notes that the father has been absent from the child’s life for long periods at a time due to the nature of his work and living in another country.  Nevertheless on each occasion that he is able to visit Australia the child appears willing and happy to spend time with her father.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. The mother did not oppose that contact between the father and child take place, however she was concerned with the intensity and duration of the contact that the father was seeking.  Nevertheless she agrees that the child should spend time with her father when he has the opportunity to visit Australia as she supports the view that the child should have an ongoing relationship with her father.

2. The mother is aware that in order for a young child to develop a meaningful relationship with a parent that ongoing communication is necessary, however due to her psychological state and recommendations from her psychologist the mother refuses to facilitate any communication between the child and father via Skype.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court notes the recommendations made in the Family Report dated

   
   

   24 December 2010, and also notes that the child has spent time with her father on previous occasions between 28 April – 16 May 2009;  23 December 2009 – 7 January 2010;  1 – 22 August 2010;  21 – 31 December 2010;  and 26 March – 12 April 2011.

2. It has been previously noted that the above occasions of contact have been rewarding for the child.

3. The contact arrangements provide for a gradual build up of time that the child is to spend with the father, with a day break in between for the child to spend time with her mother.  In the Court’s view these contact arrangements are appropriate as they will allow the child to be reintroduced to her father, and then gradually spend more time with him as she becomes more familiar with him again.

4. Whilst the father’s evidence is that there have been occasions where the child has appeared unsettled at handover times, he has addressed these issues and has arranged accommodation close to the mother’s home and child’s pre-school so as to avoid such unsettling periods for the child.

5. It is the mother’s evidence that the child suffers from separation anxiety when taken from her care.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. As the father has been resident in a South Asian country on a posting for the British public service there has clearly been practical difficulty and expense for the child to spend time with the father.  On the father’s visit to Australia in September 2011 there are, in the Court’s view, no practical difficulties or expenses referred to in the evidence which would prevent the child from spending time with the father during this period.

2. There are practical difficulties with respect to communication to be facilitated through Skype once the father returns overseas in October 2011.  These difficulties are the mother’s acute anxiety which will prevent her from facilitating this communication, as well as the unwillingness of the maternal grandparents and G Early Learning Centre to facilitate such communication.  The mother’s psychologist states that any contact between the mother and father would significantly adversely affect her and have a detrimental impact on her mental health and treatment.

(f)the capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. It seems from the evidence that each of the parents can provide for the child’s physical, material and intellectual needs.

2. The Court notes that the mother has been suffering from acute anxiety as a result of the breakdown of her relationship with the father and the litigious nature of the proceedings before the Court.  However there is no evidence to suggest that this has impacted on her capacity to provide for the emotional and intellectual needs of the child, and she has continued to have a stable job.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The child is 2 years of age and spends three days at G Early Learning Centre in long-day child care and then spends from Wednesday afternoon until Friday evening with her maternal grandparents while the mother is at work.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:  (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii) the likely impact any proposed parenting order under this Part will have on that right

1. This is not applicable.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. While the father has been absent from the child’s life due to working for the British public service and living in another country, on each occasion that he has had a chance to visit Australia he has not missed the opportunity to spend time with the child, and he has pursued those opportunities in a reliable and committed way.

2. The father has obtained a posting through the British public service to Canberra, Australia from January 2012 to January 2013, and will be moving to Australia in December 2011, so he can make more opportunities to spend time with the child and develop a meaningful relationship with her.  The father notes that this has been in detriment to furthering his career, which indicates his positive attitude towards his responsibilities as a father.

(j)       any family violence involving the child or a member of the child’s family

1. There is no evidence accepted by the Court of any such violence.

(k)any family violence order that applies to the child or a member of the child’s family, if:  (i) the order is a final order;  or (ii) the making of the order was contested by a person

1. There is no evidence of any such order.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It is always undesirable for children to be the subject of litigation between parents they love.  The Orders that are proposed to be made in these proceedings are, in the Court’s view, the best that it can do under these circumstances and at this time to avoid further proceedings consistent with the need to protect the welfare of the child and facilitate a meaningful relationship with the father.

Section 60CC(4) & (4A)

1. I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

1. Balancing the matters set out in s 60CC and considering all the evidence recited in these reasons, I conclude that the orders I propose will operate to foster the best interests of the child for the reasons specified above.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child.

2. The presumption does not apply where there has been family violence.  In this case there has been no family violence as has been set out earlier.

3. Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.

4. The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.

5. In this case the parties did not seek for the presumption not to apply.  It is the Court’s view that if the parents’ conflict and inability to communicate continues it may be necessary for an order to be made.

Section 65DAA

1. This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.

2. I do not propose an order for equal shared time as it is not in the child’s best interests, and there are also practical difficulties associated with the father living for the present time in a different country, and the child’s age.

The Orders to be made

1. Having considered the submissions and evidence, and having regard to what are the best interests of the child, I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 25 August 2011.

Associate: 

Date:  25 August 2011