Beach & Watson (No 3)
[2023] FedCFamC1F 215
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beach & Watson (No 3) [2023] FedCFamC1F 215
File number(s): PAC 6212 of 2020 Judgment of: HARPER J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – PARENTING – Final parenting orders – Where final parenting orders previously made in 2017 – Where mother has sole parental responsibility for the child –– Where child lives with mother and spends day time only with father –– Where child has never spent overnight time with father – Father seeks increase in time including overnight time – No contention of unacceptable risk of harm – Mother claims child is not emotionally ready to commence overnight time with father – Mother supports continuation of day time only with father – Where child suffers anxiety – Where child’s anxiety is the only barrier to commencement of overnight time – Where child may not harbour consistent views about spending overnight time with father – Child aligned with mother – Where Family Report writer deferred assessment of the child’s emotionally readiness for overnight time to child’s treating psychologist – Where child’s treating psychologist’s notes are largely illegible – Child’s treating psychologist not called as a witness – Insufficient evidence to support a conclusion that child is not emotionally ready for overnight time – Where overnight time may give child a chance for an enhanced meaningful relationship with the father – Consent order for sole parental responsibility to mother – Order for gradual increase in time with father progressing to overnight time – ICL to explain orders to the child – Child and parties to attend upon psychologist to assist in child’s transition to overnight time with father. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 65DAB, 61DA, 65D(1), 117(4) Cases cited: Beach & Watson [2017] FamCA 151
Beach & Watson [2021] FedCFamC1F 64
Beach & Watson (No 2) [2022] FedCFamC1F 844
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
M v S (2006) 37 Fam LR 32; [2006] FamCA 1408
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Division: Division 1 First Instance Number of paragraphs: 127 Date of hearing: 13–15 March 2023 Place: Sydney Counsel for the Applicant: Ms Haughton Solicitor for the Applicant: Soden Legal Counsel for the Respondent: Ms Abdelraheem Solicitor for the Respondent: Loveday Family Lawyers Counsel for the Independent Children's Lawyer: Mr Butters Solicitor for the Independent Children's Lawyer: Steiner Legal Pty Ltd ORDERS
PAC 6212 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BEACH
Applicant
AND: MS WATSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARPER J
DATE OF ORDER:
31 March 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental Responsibility
2.The mother have sole parental responsibility for making decisions about major long-term issues for the child namely B born 2013 (“the child”).
3.In the exercise of her parental responsibility in accordance with Order
12:(a)The mother will notify the father of her proposed decision (including reasons for the decision) in writing at least 14 days prior to the decision being made;
(b)If the father wishes he may respond within seven days indicating his view in relation to her proposal, including reasons;
(c)The mother is to give genuine consideration to the father’s response; and
(d)The mother is to notify the father in writing within 48 hours of the final decision being made.
Living arrangements
4.The child shall live with the mother.
Time with orders
5.The child spend time with the father during the school term as follows:
(a)For a period of six weeks from the date of these orders:
(i)From 3.00 pm or the conclusion of school each alternate Friday until 7.00 pm; and
(ii)From 9.00 am until 5.00 pm each alternate Saturday, falling on the same weekend as Order 5(a)(i).
(b)For a period of six weeks after the conclusion of the time set out in Order 5(a), from 3.00 pm or the conclusion of school each alternate Friday until 5.00 pm on the following Saturday;
(c)For a period of six weeks after the conclusion of the time set out in Order 5(b), from 3.00 pm or the conclusion of school each alternate Friday until 12.00 pm on the following Sunday;
(d)Thereafter, from 3.00 pm or the conclusion of school each alternate Friday until 9.00 am or the commencement of school on the next following Monday.
6.For the purposes of Order 5, the child will spend time with the father on the first weekend of each school term.
7.The child spend time with the father during school holidays as follows:
(a)In the short school holidays in 2023 if the child is spending time with the father in accordance with Order 5(b):
(i)From 3.00 pm on the first, middle and last Friday of the school holiday period until 12.00 pm on the next following Saturday;
(b)In the short school holidays in 2023 if the child is spending time with the father in accordance with Order 5(c):
(i)From 3.00 pm on the first, middle and last Friday of the school holiday period until 12.00 pm on the next Sunday;
(c)In the short school holidays in 2023 if the child is spending time with the father in accordance with Order 5(d):
(i)From 3.00 pm on the first and middle Friday of the school holiday period until 5.00 pm on the next following Monday;
(d)In the Summer 2023/2024 school holidays:
(i)From 3.00 pm on the first, third and fifth Friday of the school holiday period until 12.00 pm on the next following Tuesday;
(e)In the school holidays at the conclusion of Term 1, 2 and 3 2024:
(i)From 3.00 pm on the first Friday of the school holiday period until 5.00 pm on the next following Wednesday;
(f)In the Summer 2024/2025 school holidays and thereafter:
(i)From 3.00 pm on the first, third and fifth Friday of the school holiday period until 3.00 pm on the next following Friday;
(g)In the school holidays at the conclusion of Term 1, 2 and 3 in 2025 and thereafter:
(i)From 3.00 pm on the first Friday of the school holiday period until 3.00 pm on the next following Friday.
Special Occasions
8.Notwithstanding any other order, the child spend time with the mother:
(a)On the child’s birthday, if the child is not otherwise in the mother’s care, from 3.00 pm to 7.00 pm if on a school day or from 2.00 pm to 6.00 pm if on a non-school day.
(b)At Christmas:
(i)In odd years, from 11.00 am on Christmas Day to 4.00 pm on Boxing Day;
(ii)In even years, from 4.00 pm on Christmas Even until 11.00 am on Christmas Day.
(c)At Easter:
(i)In odd years, from 12.00 pm on Easter Sunday until 11.00 am on Easter Monday;
(ii)In even years, from 4.00 pm on Easter Saturday until 11.00 am on Easter Monday.
(d)On Mother’s Day, from 9.00 am to 5.00 pm.
9.Notwithstanding any other order, the child spend time with the father:
(a)On the child’s birthday, if the child is not otherwise in the father’s care, from 3.00 pm to 7.00 pm if on a school day, or from 2.00 pm to 6.00 pm if on a non-school day.
(b)At Christmas:
(i)In even years, from 11.00 am on Christmas Day to 4.00 pm on Boxing Day;
(ii)In odd years from 4.00 pm on Christmas Eve until 11.00 am on Christmas Day.
(c)At Easter:
(i)In even years, from 12.00 pm on Easter Sunday until 11.00 am on Easter Monday;
(ii)In odd years, from 4.00 pm on Easter Saturday until 11.00 am on Easter Monday.
(d)On Father’s Day, from 9.00 am until 5.00 pm.
Changeovers
10.For the purposes of implementing these orders, any changeovers that do not occur at the school will occur by way of the outgoing parent delivering the child to the incoming parent’s home.
Communication
11.The child communicate with the parent with whom she is not spending time between 6.30 pm to 7.30 pm each Tuesday.
12.Both parties will facilitate the child communicating with the parent with whom she is not spending time at any time the child requests to do so.
13.Unless otherwise specified in these orders or agreed in writing:
(a)Within 24 hours of the date of these orders each of the parties are to download the Parentship Application (“application”), with each party bearing any costs associated with the maintenance of the application;
(b)All communication between the parties is to occur via the application;
(c)In the event the application is no longer available or accessible by the parties, the parties are to agree on an alternate co-parenting application within seven days and failing agreement, the mother is to propose three co-parenting applications to the father and the father is to choose from those options.
14.In the event the child suffers any serious illness or injury requiring medical attention while spending time or living with either parent:
(a)The other parent is to be notified as soon as practicable by phone, text message or email;
(b)The other parent is to be provided with the full particulars of the medical practitioner, health service provider or medical facility upon which the child attends as soon as practicable; and
(c)Any such authority and/ or direction is to be provided to enable the other parent to obtain all necessary information concerning the child’s attendance upon the medical provider identified in Order 13(b).
Explanation of Orders
15.Within seven days of the making of these orders the parties do all things necessary to arrange for the child to attend upon the Independent Children’s Lawyer, at a time and place nominated by the Independent Children’s Lawyer, for the purposes of the Independent Children’s Lawyer explaining these orders to the child.
Therapy
16.Within seven days of the making of these orders the parties:
(a)Do all things necessary to arrange for the child to attend upon a health care professional nominated by the independent children’s lawyer (“therapist”) for the purpose of providing counselling to assist the child with the transition to spending overnight time with the father; and
(b)Attend any counselling sessions with the child, or by themselves, as recommended by the therapist from time to time.
17.The parties are to equally share the cost of the child’s sessions with the therapist.
18.The parties are to meet the cost of any of their individual sessions with the therapist.
19.The parties have leave to provide a copy of the following documents to the therapist referred to in Order 16:
(a)These orders;
(b)Reasons for Judgment;
(c)Child Impact Report of Ms Y dated 17 December 2021; and
(d)Family Report of Ms Z dated 3 March 2023.
20.Each party has leave to provide a copy of the following documents to any treating mental health professional upon whom they respectively attend or that the child attends from time to time:
(a)These orders;
(b)Reasons for Judgment;
(c)Child Impact Report of Ms Y dated 17 December 2021; and
(d)Family Report of Ms Z dated 3 March 2023.
Injunctions
21.Each parent is restrained by injunction:
(a)From making critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child;
(b)Permitting or allowing any other person to denigrate the other parent or any other person in that parent’s family or household, to the child, or in the child’s presence or hearing.
22.The mother and maternal family are restrained from attending the child’s school at any time or occasion when the father is present to collect or deliver the child at the commencement or conclusion of the child’s time with him in accordance with these orders.
Information
23.These orders are sufficient authority for any medical practitioner, dentist, counsellor, psychologist or other health professional who treats the child to provide information to the father upon request by the father.
24.Each parent is permitted to liaise directly with the child's sporting bodies and/or extracurricular organisation to obtain any necessary information about the child's progress; and these orders are sufficient authority for the school, sporting bodies and/or other organisations to release such information as requested by the other party to the extent permitted by law.
25.These orders are authority for the child's day-care/school to provide to both parents copies of the child's school reports, newsletters, photograph order forms and invitations to attend any activities which parties are invited to attend and for both parties to be named on all school and extracurricular records as emergency contacts.
26.The parties are to keep each other advised of their current residential address and current phone number and are to provide the other details of any proposed change or residence or phone number at least one week in advance of the same.
Costs
27.The mother and father shall each pay to Legal Aid NSW the sum of $3,500 (inclusive of GST) by way of contribution to the costs and disbursements of the ICL, with such sum to be paid within 28 days of the date of these orders.
28.Any application for costs by either party shall be filed and served within 28 days of the date of these orders, and in the event no application is filed within the time specified, there shall be no order as to costs.
29.Thirty days after the satisfaction of Orders 15 and 16, the ICL in these proceedings be discharged.
30.All outstanding applications be otherwise dismissed.
THE COURT NOTES THAT
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beach & Watson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are final parenting proceedings between the Applicant Father, Mr Beach (“the father”) and the Respondent Mother, Ms Watson (“the mother”) in relation to the child of the relationship, B, born 2013 (“the child”), now almost ten years old.
The child has been the subject of litigation for almost half her lifetime.
On 15 March 2017, following a four day final hearing, Justice Rees made final parenting orders: Beach & Watson [2017] FamCA 151 (“the 2017 orders”). Those orders provided, in summary, for the mother to have sole parental responsibility of the child; for the child to live with the mother; and for the child to spend a graduated amount of time with the father starting with three hours of supervised time and progressing to unsupervised time from 9.30 am to 5.00 pm each Sunday, and special occasion time. These orders remained in operation at the date of hearing before me.
It is important to note here that Rees J specifically addressed the issue of the child’s time with the father progressing to overnight at [239] to [251] of her judgment, and Order 24 of the 2017 orders, which was made over the objection of the mother, specifically contemplated the possibility of the child progressing to overnight time with the father. Order 24 stipulated that if the parents were unable to reach an agreement about the child spending overnight time with the father after the child reached seven years of age, they were required to do all necessary things to attend mediation provided by an Accredited Family Dispute Practitioner during Term 3 of the 2020 school year.
The parties attended a mediation in February 2020, but regrettably failed to reach any agreement with respect to the commencement of overnight time.
BACKGROUND
The father was born in 1973 and is currently 49 years of age. He resides at DD Street, EE Town. There is a separate bedroom in the father’s house made ready for the child if she commences overnight time there. The father is self-employed.
The father has two sons from a previous relationship. At the time of the 2017 hearing it became apparent that there were historic allegations that the father had sexually assaulted his two sons when they were three and five years of age. The boys were 19 and 21 years old at the time of the 2017 hearing. The charges of sexual assault were dismissed as the boy’s mother did not attend court. In addition there were an allegations of sexual assault and physical assault made by third parties. No charges were brought against the father with respect to the allegations of sexual or physical assault. These issues were extensively addressed in the 2017 judgment. No party raised these allegations as relevant during the course of the proceedings.
The mother was born in 1983 and is currently 39 years of age. She is employed in two part time positions. She has a son of a previous relationship, K who is currently 19 years of age. K has always lived with the mother. The mother, K and the child currently reside at GG Street, FF Town NSW. The mother is hearing impaired as a result of a genetically inherited condition. The maternal grandmother has been deaf since a young age and the mother’s hearing loss began when she was an adolescent. The mother is bilingual in spoken English and Australian Sign Language (“AUSLAN”).
The parents commenced a brief relationship in early 2012. The parents lived together for approximately three months and separated on a final basis in or around March 2013, before the birth of the child.
The mother was previously involved in a relationship with Mr CC for approximately six years, during which time Mr CC spent significant time with the mother and the child. The mother and Mr CC separated in March 2022. This was not included in the mother’s affidavit. In cross-examination, the mother described it as “a random relationship” and suggested it was immaterial. The mother has not re-partnered.
PROCEDURAL HISTORY
Unhappily for the child, the making of final parenting orders in 2017 did not precipitate a lessening of the parental conflict or greater stability and predictability for the child.
On 12 November 2020, the father filed both an Application – Contravention and an Initiating Application seeking to vary the 2017 orders.
The matter was transferred from the Federal Circuit Court of Australia (as it then was), to the Family Court of Australia (as it then was) on 16 March 2021.
The father filed a further Application – Contravention on 6 May 2021.
I delivered judgment on 20 September 2021, wherein I determined that there had been sufficient change in circumstances to justify permitting the father’s Initiating Application, to progress: Beach & Watson [2021] FedCFamC1F 64. I made orders appointing an Independent Children’s Lawyer (“ICL”) and for the parties to attend upon a Court Child Expert for the purposes of the preparation of a Child Impact Report.
The Child Impact Report prepared by Ms Y was released to the parties on 17 December 2021.
On 16 September 2022, the Court heard the father’s Application – Contravention. Judgment was delivered on 3 November 2022. The Court held that the mother had contravened Order 6(e) of the 2017 orders between 14 April 2019 and 21 March 2021, by failing to facilitate time with the father on ten occasions, however she had a reasonable excuse for doing so on four of those occasions: Beach & Watson (No 2) [2022] FedCFamC1F 844 (“Beach & Watson (No 2)”).
On 9 December 2022, the mother was ordered to pay the father’s costs associated with the contravention applications and to make the child available for make-up time for each contravention identified, including those in which the mother was found to have had a reasonable excuse. Both parents were to attend and complete a “Parenting After Separation Program”.
In lieu of the time missed due to the mother’s contraventions, the child spent make up time with the father on the following occasions:
(1)Saturday 17 December 2022 from 9.30 am to 5.00 pm;
(2)Friday 23 December 2022 from 9.30 am to 5.00 pm;
(3)Friday 30 December 2022 from 9.30 am to 5.00 pm;
(4)Friday 6 January 2023 from 9.30 am to 5.00 pm;
(5)Friday 13 January 2023 from 9.30 am to 5.00 pm;
(6)Friday 20 January 2023 from 9.30 am to 5.00 pm;
(7)Saturday 28 January 2023 from 9.30 am to 5.00 pm;
(8)Saturday 4 February 2023 from 9.30 am to 5.00 pm;
(9)Saturday 11 February 2023 from 9.30 am to 5.00 pm; and
(10)Saturday 18 February 2023 from 9.30 am to 5.00 pm.
On 7 November 2022, this matter was deemed suitable for inclusion in the Sydney Rolling List to be conducted from 6 – 17 March 2023 and trial directions were made to progress this matter to final hearing.
On 30 November 2022, Ms Z was engaged by the parties to prepare a Family Report. Interviews took place on 6 February 2023 and the Family Report dated 3 March 2023 was released to the parties on 6 March 2023.
The final hearing took place between 13 and 15 March 2023.
As at final hearing, the 2017 orders continued in operation, subject to the orders for make-up time made on 9 December 2022.
At the conclusion of the final day of hearing I made interim orders, based on the submissions of the ICL, requiring the parties to arrange for the child to attend upon a psychologist nominated by the ICL at the first available opportunity.
PROPOSALS AND ISSUES IN DISPUTE
The father, at the beginning of the proceedings, sought that the 2017 orders be altered such that the mother and father have equal shared parental responsibility, that the child remains living with the mother, with an increase in time whereby the child would spend each alternate weekend with the father as well as time during the holidays and on special occasions. This would see the child spending overnight time with the father.
By the conclusion of the final hearing, the father no longer pressed his application for equal shared parental responsibility. The father’s proposed orders, reflecting the amended position on parental responsibility, are set out at Annexure ‘A’. He otherwise sought orders for the child to spend time with him in summary:
(a)For the first three weeks, each Friday after school until 7.00 pm;
(b)For the next three weeks, each Friday after school until 5.00 pm on Saturday;
(c)For the next six weeks, each alternate weekend from Friday after school until 5.00 pm on Sunday; and
(d)Thereafter, each alternate weekend from Friday after school until the commencement of school on Monday, or Tuesday if it is a long weekend.
The father also sought orders that the child’s time with him during school holidays in 2023 simply be extended by one night each holiday period, and from the April 2024 holidays onwards, that the child spend half of each period with each parent.
The mother sought an alteration to the child’s time with the father to reduce the overall time from four days per month to three days from 9.00 am until 3.00 pm. This time would occur on a four weekly cycle with the child spending time with the father on Saturday in week one and Saturday and Sunday in week 3. The mother’s proposed orders are set out at Annexure ‘B’.
The ICL’s proposal became Exhibit 4 and is set out at Annexure ‘C’. The ICL supports a graduated progression to overnight time with the father, although more slowly than proposed by the father. The ICL proposed, during term time, a six week period of each alternate Friday night from the conclusion of school or 3.00 pm until 7.00 pm, followed by 9.00 am to 5.00 pm each alternate Saturday on the same weekend, thereafter six weeks with each alternate Friday from the conclusion of school or 3.00 pm until 5.00 pm on Saturday, followed by six weeks with time on each alternate Friday extending to 12.00 pm on the following Sunday, then from 3.00 pm or the conclusion of school each alternate Friday until 9.00 am or start of school the following Monday. The ICL also proposed increasing school holiday time.
By the end of the final hearing the father agreed that sole parental responsibility should remain with the mother. This position was supported by the ICL.
Accordingly, the primary issue which remained to be determined was the amount of time the child spends with the father and whether overnight time should be introduced. Although it was common ground at the commencement of the trial that there were no risk factors for the child in the father’s care, the mother appeared to put in issue the father’s parenting capacity, while the father put in issue the mother’s capacity to encourage a meaningful relationship between him and the child.
EXPERT EVIDENCE
The child has been engaged in counselling with a psychologist, Ms HH since 2020, organised by the mother. This counselling was purportedly to assist the child in progressing to spend overnight time with the father. The mother did not call Ms HH as a witness, but tendered a number of her handwritten notes, produced under subpoena.
The Family Report dated 3 March 2023, marked Exhibit 5, was based, as described by Ms Z, on the material filed by the parties so far in the proceedings, the Child Impact Report dated 17 December 2021, previous orders and judgments made in this matter, some documents produced on subpoena and the interviews conducted, as set out at the commencement of her report. Ms Z recorded the observations made by her as a result of conducting interviews with the parents and the child. Ms Z was cross-examined by the parties at the Final Hearing.
Ms Z made numerous references to Ms HH throughout the Family Report and during her cross examination. She acknowledged, in her report and in response to questions posed by the ICL that she was unable to decipher the handwritten notes of Ms HH, nor had she received any subsequent report or further communication from Ms HH.
I will refer to the content of the report as necessary during the course of these reasons.
Family Report Recommendations
Ms Z made recommendations at [68] – [77] of the Family Report as follows:
68. It is recommended that [B] continues to live with [Ms Watson].
69. [Ms Watson] should retain sole parental responsibilities for [B]. [Mr Beach] should be permitted to liaise independently with professionals involved in [B’s] care, welfare and development.
70. Time between [B] and [Mr Beach] should continue to occur during the day, on either Saturday or Sunday, for between 6 – 8 hours.
71. Consideration should be given to time occurring on a fortnightly basis, one fortnight [B] could spend time with her father on either the Saturday or Sunday from 9am to 3pm or 5pm on each day. The other fortnight, she could spend Saturday and Sunday with him.
72. Additional time should occur during the school holidays and on special days.
73. No overnight time should be imposed, unless it is at [B’s] request and the decision is made in consultation with [B’s] counsellor, [Ms HH].
74. [Ideally Ms HH] could provide a focused report on [B’s] progress with counselling sessions.
75. The parents should engage with [Ms HH] to seek input about how to focus on [B’s] needs and interests.
76. If the matter does not resolve, a s69ZW request should be sent to DCJ, specifically seeking a report from them about their involvement and any protective concerns they may hold.
77. If the matter does not resolve, an updated report may be useful in twelve months to review [B’s] experience and the parents’ capacity to abide by identified arrangements
THE CHILD
The child is currently nine years of age, and resides with the mother and her older half-brother.
She is in Year 4 at X School.
The school organised for the child to undergo cognitive assessment, administered by the school counsellor, following concerns that the child was struggling to concentrate. This assessment took place on 12 May 2022. The results indicated that the child’s cognitive abilities are in the very low range and weak processing speed. However, it also recorded she has adequate adaptive skills such that she was able to function at a level that precluded her from accessing funding for additional support in class.
Ms Z observed in her report that the child presented as an “emotionally and developmentally vulnerable young girl”.[1] In her oral evidence Ms Z identified some five factors which may be the source of the child’s vulnerabilities:
HIS HONOUR: [Ms Z], you said earlier in your evidence that you weren’t clear where [B’s] vulnerabilities come from. Do I take that to mean you don’t know why she’s anxious, despite the fact she presents with anxiety?---It – I suppose I guess what I’m trying to say, your Honour, is that there’s accumulation of aspects of [B’s] life that have contributed to creating an anxious child. Some of it is her innate biology, some of it is maybe biological from her mum and from her dad, some of it could be role-modelling, that some of it is her anxiety about her parents’ 30 conflict, her confusion about her identity. The other is her embroilment in ongoing conflict over many years, I think, ever since [B] can remember, that she has been the subject of her parents’ disputes, their conflict, their fighting. And, you know, I think that all of those things contribute to [B’s] anxiety, but not just one thing.
(Transcript 14 March 2023, P-89 lines 24-35)
[1] Family Report dated 3 March 2023, paragraph 61.
LEGISLATIVE FRAMEWORK
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for them. As already noted, by the end of the trial neither party nor the ICL proposed to disturb the order for sole parental responsibility made in the mother’s favour by the 2017 orders.
Ms Z observed that the mother and father are “unable to communicate and collaborate effectively”,[2] and their “relationship is marred by mutual mistrust and suspicion, and they cannot maintain a joint focus on [B]”.[3]
[2] Family Report dated 23 March 2023, paragraph 48.
[3] Ibid.
Consistently with this evidence, by the conclusion of the trial the following form of order was agreed to by all:
1. That the mother have sole parental responsibility for making decisions about major long-term issues for the child namely [B] born […] 2013 (“the child”).
2. That in the exercise of her parental responsibility in accordance with Order 1:
(a) The mother will notify the father of her proposed decision (including reasons for the decision) in writing at least 14 days prior to the decision being made;
(b) If the father wishes he may respond within 7 days indicating his view in relation to her proposal, including reasons;
(c) The mother is to give genuine consideration to the father’s response; and
(d) The mother is to notify the father in writing within 48 hours of the final decision being made.
There will be no order for equal shared parental responsibility.
When making parenting orders, the best interests of a child are the paramount consideration (s 60CA of the Act). They are to be determined by an examination of the primary and additional considerations as set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 (“Tibb”) at [68]–[69], the Full Court made clear that while the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary.
I turn then to the best interests of the child.
PRIMARY CONSIDERATIONS
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
The Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
The Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):
(a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 and McCall v Clark (2009) FLC 93-405 (“McCall”);
(b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]-[119]; and
(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407.
The father asserted that the mother has intentionally engaged in a course of conduct to undermine his relationship with the child by coaching her to adopt a critical and adverse narrative about him. The father believes that the mother’s denigration of him has caused the child to be reluctant to spend additional time with him.
In his affidavit filed 16 February 2023, the father argued:
38. I hold concerns that [B] has been coached into expressing negative views of her time with me despite the fun we have together. I consider it very likely that [Ms Watson’s] denigration of me and her ongoing anxiety as to [B] commencing overnights with me has caused [B] to shy away from expressing her desire to spend additional time with me.
The father argued that the mother is unwilling to support the child’s relationship with the father and that this relationship has not been supported in the mother’s household. With respect to this belief, Ms Z observed in the Family Report:
46. [Mr Beach] believed it was in [B’s] best interests to spend extended and overnight time with him. He was confident that [B] would embrace the opportunity. At the conclusion of the interview, [Mr Beach] warned the writer that if [B] offered a contradictory response, “it’s coming from her mother.”
…
62.… There is a portrayal of [Ms Watson] as opposed to the father being meaningfully involved in [B’s] care and intent on impeding time and a relationship with him. There may be some validity to this portrayal.
The father accepted that the child presently has a meaningful relationship with him, but that argued it would be strengthened by increased time with him and her extended paternal family. He expressed concern that if the current time arrangements are not altered, he will not be able to enhance the meaningful relationship with the child as she gets older.
The mother did not dispute that there is some benefit in the child having a relationship with the father, though she was equivocal as to the extent of the benefit. However, she maintained that the current orders are sufficient to support a prospective meaningful relationship with him. The mother expressed concern and resistance regarding an increase to overnight time. I will discuss this is more detail below. I note, however, that regarding the mother’s reluctance towards overnight time, Ms Z assessed it to be “protective and not motivated to marginalise the father from the child’s life”.[4]
[4] Family Report dated 3 March 2023, paragraph 62.
I am satisfied the child would benefit from a prospective meaningful relationship with her father. There was no dispute that the child has a meaningful relationship with the mother which is unlikely to be affected by any of the proposed orders.
Section 60CC(2)(b), “abuse” and “family violence”
As noted above, at the commencement of the trial, it was common ground that there were no factors which would support a conclusion that the child was at unacceptable risk in the care of either parent.
I note here that, in final submissions, the mother contended, somewhat confusingly, that the father was manipulative and overnight time may cause the child psychological harm because she was not ready for it. I do accept this argument, which I address later in these reasons
However, there was also no dispute that the long history of entrenched acrimony and conflict between the parents was taking a heavy psychological toll on the child. Ms Z observed that the child is aware “that her parents were in constant conflict”,[5] and recorded in the Family Report that the child informed her:
50. … “Mum and Dad are not friendly at all … they don’t like each other … Mum doesn’t think much of him…she thinks I should know him and see him, so when I’m older I still know him”. According to [B], “Mum and Dad will never be friends again … when they are in the same place, it’s scary if they bump into each other.”
[5] Family Report dated 3 March 2023, paragraph 50.
Changeovers have frequently been an occasion where conflict has openly erupted. The father asserted that the mother has a long history of bringing multiple people to handovers which has caused the child to be exposed to and witness significant conflict. He claimed that the maternal grandmother is present at almost every changeover and that at times there have been as many as 15 people attending changeover.
It is undisputed by both parties that there was an altercation at the changeover location in late 2020. The mother and father provided contrary accounts of the event, however, based on either account the alleged incident would have caused the child to feel frightened and distressed. The parties respective accounts are set out at [57] – [66] of Beach & Watson (No 2).
The evidence satisfied me that the interactions between the parents have often been abusive and disrespectful. The father has regularly used hectoring or abusive language. The mother appears to want to control the child’s parenting. As already noted, the mother contravened the 2017 orders a number of times. I find these interactions and this conduct have negatively affected the child.
However, otherwise I am satisfied that the child is not at unacceptable risk of harm due to abuse or family violence in the care of either parent.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:
(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;
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated at [34]:
In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
and at [35]:
... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
Ms Z reported that the child informed her that “I’ve always lived with Mum… see Dad on Sundays…I don’t want more”.[6]
[6] Family Report dated 3 March 2023, paragraph 51.
She also observed:
52. [B] seemed to mistrust the family law process and the adults involved in it. She felt pressured by the expectation to see her father and sleep overnight, “I just get upset and I’m just not comfortable when I go there.” [B] said, “I’ve told [Ms HH] (psychologist), but no one is listening at court.” It concerned [B] that she was constantly being asked about “going overnight at Dad’s, I don’t want to…but no one is listening, and everyone wants to make me go and sleep there.”
55.When options were offered, [B] suggested, “Saturday and Sunday with no sleeping over is ok …but I’m used to going just on Sunday and if I have a sleep over with my friends, I don’t want to have to go to Dad’s.” [B] pondered, “just Sunday every week is fine…or every second weekend on Saturday and Sunday would be best…but not sleep over.”
56.It was difficult to interpret [B’s] emotional response during these conversations. She tended to become frustrated, and whispered responses or withdrew. She did not, however, express fear of her father. Nor did she disclose being exposed to any inappropriate sexual behaviour in [Mr Beach’s] home.
Ms Z further noted that the child repeatedly expressed a reluctance to spend overnight time with the father.[7] She was steadfast in her assessment that the child held genuine anxiety about spending overnight time with the father.
[7] Family Report dated 3 March 2023, paragraph 60.
Unfortunately, Ms Z was unable to identify the source of this anxiety for the child, particularly as she noted that the child struggles to “articulate her feelings other than to repeatedly inform professionals that she feels ‘uncomfortable’”.[8] She observed that it was possible that the child is influenced by the mother’s anxiety and this could contribute to the child’s reported feelings of discomfort when spending time with the father.[9] As noted above at [40], Ms Z pointed to five possible causes of the child’s anxiety.
[8] Family Report dated 3 March 2023, paragraph 61.
[9] Family Report dated 3 March 2023, paragraph 62.
The mother’s version was that the child regularly said to her that she did not want to go to the father’s house, and she was uncomfortable. However, the father tendered a digital film taken by him the day before the child was interviewed by Ms Z, this became Exhibit 1. It shows the child happily dancing to music in the room set up to be her room if she stays overnight with the father. In cross examination both the mother and Ms Z accepted that the film appeared to be inconsistent with what they were told by the child. The father deposed in his affidavit that on “most occasions that I spend with [B] she asks to spend overnight time with me. She often asks if she can come for a sleep over and play at my house more often”.[10] I found the father to be a credible witness. I am satisfied this is more probable than not.
[10] Father’s affidavit filed 16 February 2023, paragraph 18.
Although I accept there is reason to treat the child’s views with some caution, I give them weight, partly because she is almost 10 years old. I find it is more probable than not that the child has been influenced by the mother’s negative narrative about the father and has been careful to say what she perceives is consistent with what her mother thinks about the father. I also find it is likely the child is scarred by the conflict between her parents, and may not harbour clear and consistent views about spending overnight time with her father both because of her mother’s influence and a level of distance in her relationship with the father, discussed below. Nonetheless, I accept it is more likely than not that the child, when with the father, sincerely tells him she wants to stay overnight.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
Ms Z observed that the child has a “close and loving relationship with her mother”.[11] The child spoke fondly of the mother, reporting “I love mum she is 10 out of 10 the best Mum in the world”.[12]
[11] Family Report dated 3 March 2023, paragraph 51.
[12] Ibid.
This is contrasted to Ms Z’s observation of the child’s relationship with her father. Ms Z was of the view that “[B] did not feel close to her father, and she seemed ambivalent”.[13] The child shared with Ms Z, as set out in the Family Report, that:
51. … “with Dad, he does dad jokes, and I can’t tell when he’s being serious or joking… Dad is a 5 out of 10 the best dad” … “he buys me stuff… gives me lunch… sometimes he’s kind but not all the time… sometimes he’s unkind… annoying but not mean, just annoying… sometimes he’s mean… I don’t know… I just get uncomfortable.”
[13] Ibid.
Based on Ms Z’s observation of interactions between the mother and the child she noted:
57. … [B] was observed to have formed a close and loving relationship with her mother. Their interactions were gentle and connected. Mostly [B] and [Ms Watson] communicated in a blend of sign and spoken language … Their manner of engagement was familiar and natural. [B] displayed affection towards her mother and sought physical contact and reassurance from her. No concerns arose about the closeness of the mother / child relationship.
Based on Ms Z’s observation of interactions between the father and the child she formed the view that:
58. From the outset, when [Mr Beach] entered, [B] was distant and disengaged. Despite her standoffish demeanour, [Mr Beach] greeted [B] in an upbeat manner. He sat next to [B] on the couch and continued to engage with her verbally. [B] did not shy away from her father, and she did not show evidence of fear in his presence. For a period, [B] remained reluctant to engage with her father verbally or physically.
59. [Mr Beach] managed the situation appropriately. He kept his energy light and continued to engage with [B]. [Mr Beach] initiated activities and, eventually, [B] became compliant. She remained non-verbal for much of the session with [Mr Beach]. After a while, however, [B] relaxed and engaged in activities with her father in a cooperative and easy manner. Overall, however, in the environs of the consulting room, the father/ daughter relationship was observed to be familiar but distant.
I conclude that while there is a degree of warmth and affection between the father and the child, it is fragile, and clearly their relationship is not as close and loving as the child’s relationship with the mother.
(ii) other persons (including any grandparent or other relative of the child);
The father asserted that the child has a very close and loving relationship with her paternal grandparents that he believes would only deepen if the child was to spend more time with them. This was not challenged by the mother.
No evidence was put before the Court with respect to the child’s relationships with her maternal family. I infer it is likely the child has regular contact with her half-brother and maternal grandmother.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
Generally, both parents have shown a willingness to participate in long term decision making, but since the 2017 orders, the mother held sole parental responsibility so the father has been excluded from decision making.
The father argued that the mother only provides him with limited information in relation to the child’s wellbeing and education. He contended that this has allowed him limited insight into the child’s development and impacts his ability to support the child while she is in his care. I accept there is some truth in this perception.
The mother arranged for the child to have regular consultations with Ms HH. The mother claimed that the father has failed to meaningfully engage with Ms HH, despite being invited to do so since late 2020. The father conceded this was so, but claimed it was because Ms HH was partisan in favour of the mother and he saw no point in engaging given that he was informed by Ms HH that she would not provide him with information about the child.
In the hearing, it became clear that Ms HH had forensic as well as therapeutic significance. As will be explained, Ms Z took the view that the only impediment to overnight time with the father was whether the child was emotionally and psychologically ready. She declared she could not determine when this would be, and Ms HH was the appropriate expert to express a view on this question. However, although the clinical notes of Ms HH were tendered by the mother, as noted, they were often illegible and the mother did not, or seek to, call Ms HH as a witness.
(ii) to spend time and communicate with the child; and
The child lives with the mother. I accept the father has taken all opportunities to spend time and communicate with the child.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The mother stated that the previous three years the father contributed $8.55 per week in child support. This was increased to $107.46 per week on 22 November 2022. There is currently $1637 in child support in arrears. The father explained, under cross examination, that the arrears occurred as the notification of the increase in child support was sent to his previous address as he had failed to inform Services Australia of his current address. The father assured the Court that this error has been rectified and the correct amount is now being paid to the mother in addition to an amount to reduce the arrears. There was no evidence provided to the Court to support the father’s account, however, I find it to be plausible.
The mother has been responsible for the costs of the child’s extracurricular activities and the expenses of the child living with her.
I find both parents have fulfilled their obligations to maintain the child.
(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
Ms Z expressed the following views with respect to the possible changes in circumstance and their likely effect on the child in the Family Report:
64. It has been difficult for [B] to clearly articulate the reasons for her discomfort when spending time with the father. This does not, however, invalidate her feelings and views. While extended and overnight time with [Mr Beach] would provide opportunities to extend the father/daughter relationship, there is significant risk that this would be detrimental to their relationship, especially if [B] is pressured to comply against her wishes and if she is not ready to embrace the arrangement. Furthermore, if [B] is required to spend overnight time with [Mr Beach] before she is emotionally ready, she may experience increased discomfort and become anxious and distressed. If this occurs, [B’s] capacity to focus and achieve at school will be impacted and her social and emotional development may stagnate. Rather than bolstering a relationship with the father, it might have the opposite effect of making the relationship more tense. Additionally, [B] may withdraw and become depressed, especially if she continues to feel unheard by adults when she is repeatedly asked about her views and preferences regarding time with her father. Eventually, [B] may refuse to attend at all and her relationship with the father may become irreparable.
65. While it is not [Mr Beach’s] preference, [B] has expressed willingness to continue to spend time with her father during the day. A variation of this arrangement may be appropriate. Consideration could be given to introducing an alternate weekend arrangement whereby [B] spent one day with her father one fortnight and two days with him the following fortnight, from 9am to 3pm or 5pm. This may assist [B] prepare emotionally to stay overnight with her father in the future, and it would allow [B] to enjoy a full weekend at home with her mother. Additional time, during the day in the school holidays is supported. [Mr Beach] should also be permitted to attend activities of interest to [B] as she ages and matures. Time during the day, on weekends and during school holidays will provide opportunities for [Mr Beach] to develop his relationship with [B]. The challenge for [Mr Beach], however, will be to change his focus from how much time [B] spends with him to taking advantage of the time [B] is in his care and improving the quality of their interactions. If overnight time does not occur, [B] still has the benefit of knowing her father, spending time with him and enjoying a relationship with him and the extended paternal family.
Ms Z repeated these concerns during cross examination, explaining that although the mother proposes a very limited relationship between the child and the father, the relationship has been limited her whole life because their relationship was never consolidated in the first instance. The focus, therefore, should be on the quality of the relationship, not the hours spent. Ms Z explained as follows:
…when I spoke with her, she was open to considering, you know, shifting the arrangements, and she didn’t say to me she didn’t want to go. She does want to go, but her anxiety is about sleeping there, and that anxiety is real, you know, it’s not manufactured, it’s real for [B] 10 and she doesn’t – she can’t articulate what it is, but it’s real.
(Transcript 14 March 2023, p.88 lines 7–10)
Ms Z suggested that the child’s anxiety should be addressed first before overnight time commenced:
I look at it from the other way, the anxiety can be dealt with first, and if the anxiety can’t be dealt with and if the anxiety remains, then that has to be the focus of [B’s] development. If [B] is an anxious child and she’s too anxious to go overnight, leave her be. Let her develop, let her enjoy being a child, let her thrive at 20 school, let her learn to trust, you know. If she can’t swim, don’t throw her in the water.
(Transcript 14 March 2023, p.88 lines 15–20)
She opined that she did not believe the child would suffer any psychological damage if time were not increased. Rather, she worried an increase in time could lead to distress, which would be more damaging and could lead to issues at school and her future ability to trust adults, who are meant to serve as protective figures. Her focus seemed to be that there was a risk of further damage to the child’s relationship with the father if overnight time commenced too soon:
It may increase her lack of trust, it may increase her anxiety and she 40 may reject her father. For me, whilst I understand the family law and the father want overnight time to occur, I think at the moment it’s a big ask for [B], and ideally the focus should be off that and on nurturing [B] and nurturing her relationship with her father. I would worry that overnight time before [B] is ready, whatever that means, will create a further division.
(Transcript 14 March 2023, p.89 lines 40–45)
In short, Ms Z’s view seemed to be that the question of overnight time should be dictated by a resolution of the child’s expressed anxiety about staying overnight.
Although the mother claimed the child regularly stated she did not want to go the father’s home, I refer to the discussion above about the child’s views, and my conclusion that the child has been influenced by the mother’s negative narrative about the father and it is likely the child has said what she believes the mother wants to hear. I refer also to my conclusion it is likely that the child has told the father she wants to spend overnight time.
The mother asserted that she has observed a decline in the child’s mental health since there has been an increase in time with the father. However, the notes of Ms HH, to the extent they can be deciphered, recorded that the child had progressed to saying in November 2022 that things were “better” when she was in her father’s care. This evidence and the digital film, which the mother agreed was inconsistent with her evidence about the child’s psychological condition, satisfy me that the mother’s evidence in this regard should be treated with caution.
There are several problems with the expert views of Ms Z. One is that where the sources of the child’s anxiety cannot be known, it is not clear why the Court should conclude overnight time with the father would exacerbate the anxiety or damage the child’s relationship with the father any further. Another is that while she expressed concern that the child may not be emotionally ready at present for overnight time with the father, she was unable to proffer any view about when that might be. Nor was Ms Z able to provide any indicia that would allow the Court to assess at what point the child may be emotionally ready for overnight time, if it be accepted that she was not currently ready. The one person whom Ms Z believed could provide clarity, Ms HH, was not a witness in the case.
Consequently, the Court has no clear expert evidence to found a conclusion that the child is not presently emotionally ready for overnight time with the father or that greater distress and psychological harm to the child is more likely than not if overnight time commences. The evidence more generally does not permit a definitive conclusion that the child is not ready for overnight time at present. I have already pointed out that her expressed resistance to overnight may be a result of trying to appear consistent with her mother, while herself being ambivalent or even cautiously well disposed to the idea, as Ms Z said, “[s]he does want to go, but her anxiety is about sleeping there”.[14] Other evidence such as the child’s statements to the father, the digital film, the most recent decipherable notes from Ms HH, the child’s age and the agreed absence of risk factors combine to favour the conclusion that there is no secure reason to conclude that the child is presently emotionally unready to spend overnight time with her father and it seems equally possible that the child may be positively disposed to doing so.
[14] Transcript 14 March 2023, p.88 lines 9–10.
Moreover, it is possible that the child’s relationship with her father may be enhanced and become deeper and more meaningful through overnight time. The evidence did not persuade me that the child should be denied this opportunity by refusing a progression to overnight time.
(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;
The distance between the mother and father’s residence is relatively short as is the driving time. I find there have been no practical difficulties to date that have acted as a barrier to the child spending time with either parent.
(f) the capacity of:
(i) each of the child’s parents, to provide for the needs of the child, including emotional and intellectual needs
The mother has demonstrated a proactive approach in engaging education, medical and mental health services to support the child.
I am satisfied both parents have completed the parenting courses they were ordered to complete by the Court in the 2017 orders and orders made on 9 December 2022.
The mother was stridently critical of the father’s parenting capacity, and his capacity to provide for the child’s emotional needs. She claimed in final submissions that he has learnt no parenting skills, he does not know how to parent and has no insight into how his behaviour affects those around him. I accept there is some force in these criticisms, but they are overstated. The evidence shows that in the past the father has tended to trivialise emotional responses of the child at times. Ms Z also commented in cross-examination that the father tended to be dismissive of information that did not align with his perspectives, that he had a single view of everything, and anything that was not “positive and rosy” was viewed as the fault of the mother.[15] Ms Z’s evaluation of the father was that he “does not impress as having insight into his presentation and the impact of his behaviour on the mother, or perhaps on [B]”.[16]
[15] Transcript 14 March 2023, p.98 line 19.
[16] Family Report dated 3 March 2023, paragraph 63.
However, I have observed the father in the witness box. The mother argued that he has learnt nothing since the 2017 orders. I do not agree. The father satisfied me that he has gained some insight into his own conduct and deficits in parenting capacity. I accept he has engaged constructively with parenting programs and to some extent absorbed constructive parenting strategies from them. The mother criticised the father for failing to learn the AUSLAN language. But I accept his evidence he tried and was unable to do so. Overall, I am satisfied that the father is genuine in trying to do his best as a parent, while the mother is not inclined to view him as a parent with any measured perspective.
The father clearly has a different parenting style to the mother. However, the child has been spending regular day time with the father for several years, during which I am satisfied the child was adequately cared for. There was nothing pointed to by the mother which persuaded me that, after sunset, the father could not effectively parent the child, as he had during daylight hours.
(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;
There are no other factors asides from the ones already set out above which are relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child’s parents;
Both parents have demonstrated a satisfactory attitude to the responsibilities of parenthood.
(j) any family violence involving the child or a member of the child’s family;
I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b). I have made no findings of family violence. In light of this, s 60CC(3)(k) is irrelevant.
(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;
It is preferable to make orders which are least likely to lead to the institution of further proceedings. In this regard, I accept the evidence of the mother in cross examination that if overnight time is ordered, she will comply with the orders of the Court to make it happen.
TIME WITH THE FATHER
The mother contended that she could not, at this stage, support any orders for overnight time, however, was open to the child’s therapist exploring the idea and assisting the child to move in that direction. As noted, Ms Z was unable to give a view as to how to determine when overnight time would be suitable to commence, believing that it would be best left to Ms HH to determine this.
However, as I mentioned above, the mother did not call Ms HH as a witness. Furthermore, I explained above at [94]–[96] that the evidence more generally did not exclude the possibility that the child was emotionally ready, there was no clear basis to found a conclusion that the child was not ready to spend overnight time, and the child should not be denied the chance for an enhanced meaningful relationship with the father through overnight time.
I am satisfied the child’s time with the father should progress to overnight time. An initial increase in daytime care will provide some preparation for overnight time. Ms Z did accept that increased day time with the father may emotionally prepare the child for overnight time. I note here that Ms Z suggested that if overnight time was to commence, it should be at the end of Year 5, while the child is presently only in Year 4. This idea seemed to be based upon Ms Z’s view that the child may not be emotionally ready and the extra time would allow the child to grow in independence and autonomy. While that may be true to some extent, it is problematic, because it would delay overnight time by almost two years. In my view such a delay is not supported by other evidence, such as the indications the child would enjoy having her own room at the father’s house, nor by the chance for the prospective benefit of an enhanced meaningful relationship with the father.
The ICL also proposed that changeovers should occur at the child’s school on school days and otherwise by way of the outgoing parent delivering the child to the incoming parent’s home. The father argued this was likely to increase conflict. As noted earlier, changeovers have been a source of conflict for some time. One problem with the orders for day time only is that they require numerous changeovers. I have taken into account Ms Z’s comments that the child was clear, in her interviews, that it was the prospect of overnight time which caused anxiety, rather than the prospect or frequency of changeovers. However, she agreed that changeovers at the child’s school, where possible, would minimise the risk of conflict.
The ICL’s proposal will eventually result in fewer changeovers. This is desirable from the child’s point of view. With even a modicum of common sense and goodwill, which these parents should be able to muster, a changeover at the incoming parent’s home should be possible without the parents coming into any contact at all. The child, who is almost 10 years old, can simply leave the outgoing parent’s vehicle and enter the home of the incoming parent. Neither parent need be directly involved.
The father sought a restraint on the mother, and her family members, attending the child’ school when he is collecting the child, in accordance with the Court’s orders. I consider this appropriate to minimise the chance of conflict in the presence of the child.
The difference between the proposal of the father and that of the ICL lay in the speed with which overnight time should begin. The father proposed blocks of three weeks, with increased day time leading to overnight time, whereas the ICL proposed block of six weeks. In relation to the ICL’s proposed orders the father argued in detail as follows:
(1)Order (2)(a) should consist of a three, not six, week period, from after school on Friday until 7.00 pm, on three consecutive Fridays, rather than alternate Fridays over six weeks in order to create a regular pattern for the child. The father also argued that the ICL’s order in its current form would result in an undesirable number of changeovers at the parents’ houses, and this would increase the likelihood of conflict between the parties. He proposed that instead of returning the child on Friday evening the order should be from the conclusion of school on Friday until 5.00 pm on the following Saturday. In the alternative he proposed that the day time on the Saturday should not be ordered as it may invite an argument or create difficulties for the child on the Saturday morning;
(2)Order (2)(b) should be three consecutive Fridays overnight;
(3)Order (2)(c) is accepted as proposed, with the exception that it should be until 5.00 pm not noon, there being no reason not to go until 5.00 pm; and
(4)Order (2)(d) is accepted as proposed, unless Monday is a public holiday, in which case the time should extend to 9.00 am or the commencement of school on Tuesday.
I accept that it is desirable to minimise changeovers at the parent’s homes. However, the vulnerabilities of the child, especially anxiety, suggest a more cautious graduated approach. In my view the father’s proposal moves too quickly. For this reason I prefer the proposal of the ICL.
I also accept the ICL’s proposed orders for school holidays and special occasions are appropriate.
THERAPY
The father proposed an order that would have the child cease seeing Ms HH. Ms Z commented, that this would be detrimental, as Ms HH “stands tall, as one of the few adults in her life that she trusts, outside of her mother. She has been a constant trusting figure in her life”.[17] Since the mother will have sole parental responsibility I see no sufficient reason to prescribe how she should make decisions about the child’s future health care. Ms HH gave no evidence. I am unable to form a view about the soundness of the father’s perception of Ms HH. I will not make any orders precluding the child consulting Ms HH in the future.
[17] Transcript 14 March 2023, p.101 lines 11–12.
The ICL proposed an order that a therapist be appointed for the child to explain these orders, and subsequently assist the child with the transition to overnight time. Ms Z agreed that such an explanation would alleviate the feeling that the child has said or done something wrong, and from potentially feeling that she has let one or the other parent down. It would also make it clear that “the people who know best, so to speak, have put this in place…because they care”.[18] Both the mother and father expressed resistance to the ICL’s proposal that a therapist be responsible for explaining the orders to the child. During submissions, the ICL indicated that they would have no difficulty explaining the orders to the child rather than a therapist.
[18] Transcript 14 March 2023, p.105 lines 11–12.
With regard to counselling to assist the child with the transition to spending overnight time, the father objected to an order for the child and the parties to engage in ongoing therapy from a health care professional nominated by the ICL. He proposed that the ICL remain undischarged for a sufficient period to allow the other orders to operate and recommend a therapist if the transitioning between households becomes an issue. However, in my view, in light of the history of this matter, it would be in the best interests of the child for therapy to commence to assist the child and the parents to bring about trouble free transitions and changeovers without conflict.
I will order that the ICL explain these orders to the child, and order the child and the parties to engage in therapy to assist the child with the transition to overnight time with the father.
MISCELLANEOUS
The father proposed a number of other orders about the provision of information from health professionals and the child’s school. The mother did not directly oppose these orders, but contended her wording for orders to a similar effect should be adopted. The ICL agreed with the father’s version. I will make those orders, other than his proposed order that both parents could attend parent-teacher interviews, even if the child is in the care of the other parent. I will not make this order. It risks exposing the child to conflict.
The mother proposed two additional orders, as set out in Annexure “B”, neither order was mentioned in the mother’s submissions nor engaged with by the father or the ICL.
The first was an order that all communication between the parents should occur through the “Parentship Application” or an alternate co-parenting application as agreed between the parties. Given the above findings with regard to the parties’ fraught communication, I am satisfied that they may benefit from such an order.
The second was an order that in the event the father administers the child medication while she is in his care the father is inform the mother, immediately before or within half an hour of administering the medication, of the name of the medication, amount administered and reason for administering the medication. I am not persuaded that there is any reason to doubt that the father would be capable of exercising appropriate discretion should the child need medication while in his care in the future. I do not make this order.
The father sought an order restraining the mother, without the agreement of the father in writing, from changing the child’s name or relocating more than 50 km away from the father’s residence. He made no submissions in support of this order nor did the ICL. Counsel for mother resisted this on the basis that nothing was put to the mother about it, no arguments made in support and no evidence was presented to support the order. I decline to make this order.
TRAVEL
The mother sought an order permitting her to suspend time with the father for up to two weeks for holiday travel. In my view, such an order risks future conflict, and I do not propose to make it. The father proposed an order for the parties to give two weeks’ notice of interstate travel and a prohibition on international travel without the consent of the other parent. I do not see the benefit of such orders at present in light of the broader parenting framework which the Court’s orders will impose. There will be a clear regime of time with the father and changeovers. Both parties will be required to comply with those orders whatever travel they plan with the child. Neither the mother nor father made submissions with respect to their proposed orders relating to travel. The ICL did not engage with this issue. Consequently no orders with respect to travel will be made.
ICL’S COSTS
The ICL applied for a contribution to their costs from each party. The father resisted this on the basis that he should not have to contribute to any of the ICL’s costs relating to the contravention hearing, he has limited means, and any costs’ order would cause him hardship (s 117(4) of the Act). The mother made a similar submission. However, it was accepted that the ICL had been of great assistance to the parties. In my view, the parties should make a contribution to the publicly funded service from which they have benefitted. I will order each party contribute to the ICL’s costs in the amount of $3,500 inclusive of GST. Although not intending to foreclose any application for costs, my initial view is that each party should pay their own costs.
CONCLUSION
For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 31 March 2023
ANNEXURE “A” – FATHER’S PROPOSAL
(1)All previous parenting orders be discharged.
(2)That the mother have sole parental responsibility for making decisions about major long-term issues for the child namely B born 2013 (“the child”).
(3)That in the exercise of her parental responsibility in accordance with Order 2:
(a)The mother will notify the father of her proposed decision (including reasons for the decision) in writing at least 14 days prior to the decision being made;
(b)If the father wishes he may respond within 7 days indicating his view in relation to her proposal, including reasons;
(c)The mother is to give genuine consideration to the father’s response; and
(d)The mother is to notify the father in writing within 48 hours of the final decision being made.
(4)That the mother shall not, without the agreement of the father in writing:
(a)Change the child’s name;
(b)Relocate the child more than 50km away from the father’s residence.
(5)Notwithstanding Order 2 herein, each parent shall have responsibility for day-to-day decisions concerning the child whilst the child is in their care.
(6)That these orders are sufficient authority for any medical practitioner, dentist, counsellor, psychologist or other health professional who treats the child to provide information to the father upon request by the father.
(7)Each parent is permitted to liaise directly with the child’s sporting bodies and/or extra-curricular organisation to obtain any necessary information about the child’s progress; and these orders are sufficient authority for the school, sporting bodies and/or other organisations to release such information as requested by the other party to the extent permitted by law.
(8)These orders are authority for the child’s day-care/school to provide to both parents with copies of the child’s school reports, newsletters, photograph order forms and invitations to attend any activities which parties are invited to attend and for both parties to be named on all school and extracurricular records as emergency contacts.
(9)Each parent is permitted to attend parent-teacher interviews, concerts, carnivals and other events involving the child’s school, or in the context of extra-curricular activities to which parents are ordinarily invited, even if that event occurs at a time when the child is in the care of the other parent pursuant to these Orders.
(10)The child shall live with the Mother.
(11)The child shall spend time with the Father as follows:
(a)Commencing on the first weekend following the making of these orders, each alternate weekend from after school or 3.00 pm on Friday until before school of 9.00 am on the immediately following Monday and where the conclusion of the Father’s time falls on a public holiday then the Father’s time shall be extended until before school or 9.00 am on the immediately following Tuesday;
(b)On the child’s birthday as follows:
(i)If the child’s birthday falls on a school day, from after school or 3.00 pm until 7.00 pm;
(ii)If the child’s birthday falls on a non-school day that the child is not otherwise spending time with the Father, for at least four hours at a time to be agreed to between the parents and failing agreement from 2.00 pm until 6.00 pm;
(c)For the first half of all school holiday periods which commence in 2020 and each alternate year thereafter;
(d)For the second half of all school holiday periods which commence in 2021 and each alternate year thereafter;
(e)On the weekend that includes Father’s Day from 5.00 pm on the Saturday immediately before Father’s Day until 5.00 pm on Father’s Day;
(f)At Christmas as follows:
(i)In even numbered years commencing 2020 from 11.00 am on Christmas Day until 4.00 pm on Boxing Day;
(ii)In odd numbered years commencing 2021 from 4.00 pm on Christmas Eve until 11.00 am on Christmas Day; and
(g)At Easter as follows:
(i)In odd numbered years commencing 2021 from 4.00 pm on Easter Saturday until 11.00 am on Easter Sunday;
(ii)In even numbered years commencing 2022 from 12.00 noon on Easter Sunday until 11.00 am on Easter Monday; and
(h)By telephone via video call, Facetime or audio call at the instigation of the Father between the hours of 6.30 pm and 7.30 pm each Tuesday and each Thursday.
(12)The provisions of Order 11 shall be suspended as follows:
(a)On the weekend that includes Mother’s Day from 5.00 pm on Saturday immediately before Mother’s Day until 5.00 pm on Mother’s Day;
(b)In even numbered years commencing 2020 from 4.00 pm on Christmas Eve until 11.00 am on Christmas Day;
(c)In odd numbered years commencing 2021 from 11.00 am on Christmas Day until 4.00 pm on Boxing Day;
(d)In even numbered years commencing 2022 from 4.00 pm on Easter Saturday until 11.00 am on Easter Sunday; and
(e)In odd numbered years commencing 2021 from 11.00 am on Easter Sunday until 4.00 pm on Easter Monday.
(13)Periodic weekend time shall be suspended during school holiday periods and resume at the conclusion of school holidays and be calculated as if holidays had not intervened.
(14)For the purposes of these orders, school holiday periods are defined to be those school holiday periods referable to the school at which the child attends, and each school holiday period is defined to start and finish as follows:
(a)The first day of each school holiday period is deemed to be the day the child attends her last day of school term and if no attendance then at 3.00 pm on the last day children at the child’s school are required to attend;
(b)The last day of each school holiday period is deemed to be the day immediately before the child is required to attend her first day of school for each new school term;
(c)Where the Father’s time with the child occurs in the first half of the school holiday period, such time will commence at the conclusion of school on the first day of the relevant school holiday period;
(d)Where changeover occurs half way through a school holiday period, changeover will occur at 9.00 am on that day which is the day midway between the first and last day of the school holiday period and in the event there are two middle days, changeover shall occur at 9.00 am on the first of those two middle days;
(e)Changeover on the last day of each school holiday period will occur at the commencement of school on the first day of each term where the child is required to attend and if not in attendance then at 9.00 am on that day.
(15)For the purposes of effecting changeover, and unless otherwise agreed between the parents in writing, the following shall apply:
(a)If the child is not attending school on a day when changeovers occurs at the conclusion of school, then changeover that would have occurred at the commencement of the school day shall occur at 9.00 am;
(b)If the child is not attending school on a day when changeover occurs at the commencement of school, then changeover that would have occurred at the commencement of the school day shall occur at 9.00 am;
(c)Where the Father’s time commences and/or concludes at the beginning and/or end of each school day, the Father and/or his nominee shall collect and return the child from school;
(d)For all other occasions spent with the Father, changeover shall occur at JJ Town McDonalds and for this purpose each parent shall be permitted to bring no more than one (1) additional support person to changeover.
(16)Each parent shall refrain from making critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child.
(17)In the event the child suffers a medical emergency requiring medical attention while spending time or living with either parent:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable;
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
(18)Forthwith upon the making of these orders and continuously thereafter, the Mother and Father shall provide all authorities and shall give all necessary consents to ensure that the child’s medical practitioner and all health care providers are authorised and directed to communicate with, and provide information and copies of documents to, the Mother and the Father upon either parent’s respective request and at the requesting parent’s own cost (including as to treatment obtained, required, prognosis, medication and test results).
(19)Forthwith upon the making of these orders and continuously thereafter, the Mother and Father shall provide all authorities and shall give all necessary consents to ensure that the principal of the child’s school (and each teacher involved in the education of each child) are authorised and directed to communicate with, and provide information and copies of documents directly to, the Mother and Father upon either party’s respective request and at the requesting party’s own cost.
(20)Each parent by themselves, their servants and/or their agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the Child from the Commonwealth of Australia without the consent of the other parent first obtained in writing, or an order of the court.
(21)Each parent is restrained from directing, instructing or encouraging the child to refer to any third party using the names Mum, Dad, Mummy, Daddy or any version of Mother or Father.
(22)The Mother is restrained from bringing the maternal grandmother, Ms L to changeover with the Father.
(23)Each parent shall advise the other parent of any interstate travel prior to it occurring including the details of the suburbs the Child will be staying in at least two (2) weeks in advance of the same.
(24)The parents keep each other advised of their current residential address and current phone numbers and that each parent provide to the other details of any proposed change to either their address or their telephone number in writing at least one (1) week in advance of the same.
ANNEXURE “B” – THE MOTHER’S PROPOSAL
(1)The Final Parenting Orders dated 15 March 2017 be discharged.
(2)The mother have sole parental responsibility for B born 2013 (“[B]”).
(3)B live with the mother.
(4)B spend time with the father each alternate weekend in a four week cycle as follows:
(a)In Week 1 – On Saturday from 9.00 am to 3.00 pm and every four weeks thereafter;
(b)In Week 3 – On Saturday and Sunday from 9.00 am to 3.00 pm on each day and every four weeks thereafter; and
(c)The Court notes that B will not be spending time with the father in Week 2 and Week 4 in the four-week cycle.
(5)That unless the mother and father otherwise agree in writing B will spend time with the father on special occasions as follows:
(a)On Father’s Day from 9.00 am to 3.00 pm;
(b)On Christmas Eve in 2023 and each alternate year thereafter from 2.00 pm to 7.00 pm;
(c)On Christmas Day in 2024 and each alternate year thereafter from 10.00 am to 2.00 pm; and
(d)On B’s birthday in 2024 and each alternate year thereafter from 4.00 pm to 6.00 pm if it falls on a school day and from 9.00 am until 12.00 pm if it falls on a non-school day.
(6)The father’s time with B is suspended as follows:
(a)On Mother’s Day from 9.00 am to 3.00 pm;
(b)On Christmas Day commencing 2023 and each alternate year thereafter from 9.00 am to 3.00 pm;
(c)On Christmas Eve in 2024 and each alternate year thereafter from 9.00 am to 3.00 pm; and
(d)On B’s birthday in 2023 and each alternate year thereafter, from 9.00 am to 3.00 pm if it falls on a weekend.
(7)The father is to provide the mother with notice as soon as practicably possible if he is unable to comply with Orders 5 and 6 above.
(8)That unless the mother and father otherwise agree in writing the mother shall deliver B to the father at IGA in EE Town at the commencement of her time with the father and the father shall return B to the mother at FF Town IGA at the conclusion of his time with him.
(9)That unless the mother and father otherwise agree in writing, the mother is permitted to suspend B’s time with the father for a period of up to two weeks up to twice per year for the purpose of going on holiday with B on the condition the mother is to give the father at least two (2) weeks’ notice of the planned dates of holiday.
(10)In the event the father administers medication to B, he must inform the mother immediately before if practicable or within half an hour of administering the medication of the following:
(a)The name of the medication administered;
(b)The amount of medication administered;
(c)The time the medication was administered; and
(d)The reason for administering the medication.
(11)That unless the mother and father otherwise agree in writing, all communication between the mother and the father shall occur as follows:
(a)Within 24 hours of the date of these orders each of the parties is to download on their phone the Parentship Application (‘Application’) and each party is to maintain that Application on their phone at their own expense.
(b)In the event the Parentship Application is no longer available or accessible by the parties, the parties are able to agree on an alternate co-parenting application (‘Application’) within 7 days and failing agreement, the mother is to propose three co-parenting applications to the father and the father is to choose a co-parenting application as soon as practicable
(c)The mother and father shall communicate with each other in a civil and courteous manner at all times and such communication is limited to matters with any difficulties in complying with Orders 4 and 5 above and the general compliance with the balance of these orders only.
(12)The parties shall:
(a)Notify each other as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning B whilst in their care;
(b)Provide full particulars of any medical practitioner, health service provider or institution attended by B; and
(c)Provide any such authority and direction necessary to enable the other party to obtain all necessary information concerning B from such medical practitioner, health service provider or institution.
(13)The father is authorised to obtain from B’s school copies of all notices, letters, school reports, school photographs, newsletters and announcements of school activities or otherwise pertaining to the education of B.
(14)Each parent is restrained from:
(a)Denigrating the other or members of the other party’s family in the presence or hearing of B and each party shall do all acts and things necessary to prevent any other person doing so; and
(b)Discussing the family law dispute and showing B any court documents, correspondence between their solicitors, and other documents relating to or associated with these proceedings.
(15)That the mother and father shall keep each other informed at all times of the following:
(a)Their current residential address, contact phone number and email address; and
(b)The names of other adults living in their home where B will be living or spending time.
(16)The mother and father be permitted to provide a copy of the Family Report prepared by Ms Z dated 3 March 2023 (“the Family Report”) and a copy of the final orders made in this matter and reasons for decision to:
(a) Ms HH; and
(b) Any other mental health practitioner including a counsellor, psychologist, psychiatrist or therapist who may from time to time treat B.
(17)The father pay the mother’s costs of and incidental to these proceedings.
ANNEXURE “C” – ICL’S PROPOSAL
Live With
(1)That the child live with the mother.
Spend Time
(2)That the child spend time with the father during the school term as follows:
(a)For a period of six weeks from the date of these orders:
(i)From 3.00 pm or the conclusion of school each alternate Friday until 7.00 pm; and
(ii)From 9.00 am until 5.00 pm each alternate Saturday, falling on the same weekend as Order 2(a)(i).
(b)For a period of six weeks after the conclusion of the time set out in Order 2(a), from 3.00 pm or the conclusion of school each alternate Friday until 5.00 pm on the next following Saturday (1 night);
(c)For a period of six weeks after the conclusion of the time set out in Order 2(b), from 3.00 pm or the conclusion of school each alternate Friday until 12.00 pm on the next following Sunday (2 nights);
(d)Thereafter, from 3.00 pm or the conclusion of school each alternate Friday until 9.00 am or the commencement of school on the next following Monday (3 nights).
(3)For the purposes of Order 2, the child will spend time with the father on the first weekend of each school term.
(4)That the child spend time with the father during school holidays as follows:
(a)In the short school holidays in 2023 if the child is spending time with the father in accordance with Order 2(b):
(i)From 3.00 pm on the first, middle and last Friday of the school holiday period until 12.00 pm on the next following Saturday (3 periods of 1 night);
(b)In the short school holidays in 2023 if the child is spending time with the father in accordance with Order 2(c):
(i)From 3.00 pm on the first, middle and last Friday of the school holiday period until 12.00 pm on the next Sunday (3 periods of 2 nights);
(c)In the short school holidays in 2023 if the child is spending time with the father in accordance with Order 2(d):
(i)From 3.00 pm on the first and middle Friday of the school holiday period until 5.00 pm on the next following Monday (2 periods of 3 nights);
(d)In the Summer 2023/2024 school holidays:
(i)From 3.00 pm on the first, third and fifth Friday of the school holiday period until 12.00 pm on the next following Tuesday (3 periods of 4 nights);
(e)In the school holidays at the conclusion of Term 1, 2 and 3 2024:
(i)From 3.00 pm on the first Friday of the school holiday period until 5.00 pm on the next following Wednesday (5 nights);
(f)In the Summer 2024/2025 school holidays and thereafter:
(i)From 3.00 pm on the first, third and fifth Friday of the school holiday period until 3.00 pm on the next following Friday (3 periods of 7 nights);
(g)In the school holidays at the conclusion of Term 1, 2 and 3 in 2025 and thereafter:
(i)From 3.00 pm on the first Friday of the school holiday period until 3.00 pm on the next following Friday (7 nights).
Special Occasions
(5)That notwithstanding any other order, the child spend time with the mother:
(a)On the child’s birthday, if the child is not otherwise in the mother’s care, from 3.00 pm to 7.00 pm if on a school day, or from 2.00 pm to 6.00 pm if on a non-school day.
(b)At Christmas:
(i)In odd years, from 11.00 am on Christmas Day to 4.00 pm on Boxing Day;
(ii)In even years, from 4.00 pm on Christmas Even until 11.00 am on Christmas Day.
(c)At Easter:
(i)In odd years, from 12.00 pm on Easter Sunday until 11.00 am on Easter Monday;
(ii)In even years, from 4.00 pm on Easter Saturday until 11.00 am on Easter Monday.
(d)On Mother’s Day, from 9.00 am to 5.00 pm.
(6)That notwithstanding any other order, the child spend time with the father:
(a)On the child’s birthday, if the child is not otherwise in the father’s care, from 3.00 pm to 7.00 pm if on a school day, or from 2.00 pm to 6.00 pm if on a non-school day.
(b)At Christmas:
(i)In even years, from 11.00 am on Christmas Day to 4.00 pm on Boxing Day;
(ii)In odd years, from 4.00 pm on Christmas Eve until 11.00 am on Christmas Day.
(c)At Easter:
(i)In even years, from 12.00 pm on Easter Sunday until 11.00 am on Easter Monday;
(ii)In odd years, from 4.00 pm on Easter Saturday until 11.00 am on Easter Monday.
(d)On Father’s Day, from 9.00 am until 5.00 pm.
Changeovers
(7)That for the purposes of implementing these orders, any changeovers that do not occur at the school will occur by way of the outgoing parent delivering the child to the incoming parent’s home.
Communication
(8)That the child communicate with the parent with whom she is not spending time between 6.30 pm to 7.30 pm each Tuesday.
(9)That both parties will facilitate the child communicating with the parent with whom she is not spending time at any time the child requests to do so.
Therapy
(10)Within seven days of the making of these orders the parties do all things necessary to arrange for the child to attend upon Dr KK of MM Psychology (or, in the event Dr KK is not available, Mr LL of NN Centre) (“the therapist”) for counselling at the first available opportunity, and thereafter as recommended by the therapist for the purposes of the therapist explaining these orders to the child and thereafter assisting the child with the transition to spending overnight time with the father.
(11)The parties are to attend any counselling sessions with the child, or by themselves, as recommended by the therapist from time to time.
(12)That the parties are to equally share the cost of the child’s sessions with the therapist.
(13)That the parties are to meet the cost of any of their individual sessions with the therapist.
(14)The parties have leave to provide a copy of the following documents to the therapist referred to in Order 10:
(a)These orders;
(b)Justice Harper’s Reasons for Judgment;
(c)Child Impact Report of Ms Y dated 20 September 2021; and
(d)Family Report of Ms Z dated 3 March 2023.
(15)Each party has leave to provide a copy of the following documents to any treating mental health professional upon whom they respectively attend or that the child attends from time to time:
(a)These orders;
(b)Justice Harper’s reasons for Judgment;
(c)Child Impact Report of Ms Y dated 20 September 2021; and
(d)Family Report of Ms Z dated 3 March 2023.
General Orders
(16)Each parent shall refrain from making critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent, or members of the other parent’s family in the presence or within hearing of the child.
(17)The Independent Children’s Lawyer in these proceedings is hereby discharged.
(18)That the parties each contribute the sum of $5,566.50 towards the ICL’s costs incurred in these proceedings, less the contribution already paid by that party since 20 November 2020.
(19)Pursuant to s 62B and 65DA(2) of the Family Law Act 1975 (Cth), 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 to the Orders and these particulars are included in the Orders.
(20)Any outstanding applications are otherwise dismissed, and the proceedings are removed from the list of matters awaiting finalisation.
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