BRIGHAM & KOKKALI

[2013] FamCA 782

FAMILY COURT OF AUSTRALIA

BRIGHAM & KOKKALI [2013] FamCA 782

FAMILY LAW – CHILDREN – Best interests of the child – time child spends with the father – school the child is to attend – name of the child.

Family Law Act 1975 (Cth)

APPLICANT: Mr Brigham

RESPONDENT: Ms Kokkali

FILE NUMBER: SYC 5114 of 2011

DATE DELIVERED: 3 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 27-28 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT:	Mr Schonnell SC
COUNSEL FOR THE RESPONDENT: Mr Schonnell SC	Rossi Simicic Lawyers

Orders

1. All previous parenting orders in relation to the child J Brigham born … 2010 (“the child”) be discharged.

2. The parents have equal shared parental responsibility for the child.

3. The child is to live with the mother.

4. The child is to spend time with the father as follows:-

   (a)Until the father has had six periods of “Saturday time” with the child pursuant to this order, the child is to spend time with the father each Saturday from 10.00 a.m. to 4.00 p.m., with the mother to deliver the child to the father and collect the child from the father at … Food Court. Such time between the child and the father is to be supervised by either Ms Y or Mr B.

   (b) Upon the father experiencing six periods of Saturday time with the child, pursuant to the above order, then the Saturday time is to move to fortnightly Saturday time from 10.00 a.m. to 4.00 p.m. with the mother to deliver the child to the father at his residence at Suburb W and collect The child from the father at McDonalds, Suburb E. Such time between the child and the father is to be supervised by either Ms Y or Mr B. The first such period of Saturday time to commence on the second Saturday after the completion of the time set out in order (4)(a) hereof.

   (c) Upon the conclusion of the time specified in order (4)(a) hereof and commencing on the first Monday after the last occasion of Saturday time pursuant to that order the father is to spend time with the child each Monday between 1.30 p.m. and 5.30 p.m. with such visit to occur in the Wollongong area. The father is to collect the child from the mother’s residence … at the commencement of that time and return him to the mother’s residence at the conclusion of that time. No supervision of this time to be exercised by the father with the child is required.

   (NOTE: It is intended by these orders that the father’s Monday time with the child would be exercised on the Monday immediately following the Saturday of the week when the child was not to spend time with his father pursuant to order (4)(b) hereof)

   (d) Any other time which the parties may agree upon in writing (confirmed by email) and such time is to be supervised by either Ms Y or Mr B if it occurs in the Sydney area unless the parties otherwise agree.

   SPECIAL DAYS

5. The child is to spend time with the father at the additional following times:-

   (a)On Father’s Day and K Brigham’s birthday from 10.00 a.m. to 4.00 p.m., if the birthday falls on a weekend, and if the birthday falls on a week day, from 10.00 a.m. until 4.00 p.m. on the Sunday  immediately preceding the birthday. The father is to collect the child from the mother (or her nominee) at the commencement of the time and the mother is to collect the child from the father at the conclusion of the time, and the changeover site (for each changeover) is to be McDonalds, Suburb E (unless the parties otherwise agree to a different site in writing). These occasions of time for the child with the father are to be supervised by either Ms Y or Mr B. The father may also nominate either of those persons to be the collecting or returning person for the changeovers.

   (b)On Catholic Easter Sunday (if the child has not been with the father on the Saturday immediately before Easter Sunday), the father’s birthday and the child’s birthday. Such occasions are to take place in even numbered years from 9.00 a.m. to 12.00 noon; and in odd numbered years from 12.00 noon to 4.00 p.m. The changeover site and arrangements to be the same as set out in order (5)(a) above.

   (c)On Christmas Day in years ending in an even number from 10.00 a.m. to 4.00 p.m., and from 10.00 a.m. to 4.00 p.m. on Christmas Eve in years ending in an odd number. The changeover site and arrangements are to be the same as set out in order (5)(a) above.

6. In the event that the child’s time with the father does not occur because of illness on the childs part or because of some circumstance other than the unavailability of the father, then the parties are to arrange makeup time for the child with the father as close to the scheduled period as is practicable. Any Saturday time so missed may be made up on a Sunday if necessary. Any Monday time may be made up on a non preschool day or a weekend day.

7. In the event of the father being unable to avail himself of any scheduled time with the child pursuant to these orders he is to give the mother as much notice as possible of such unavailability.

8. In September of the year before the child commences school, unless the parties have otherwise agreed in writing about the commencement of overnight time for the child with his father, they are to obtain from an agreed and suitably qualified child psychologist (the expert) a report to determine the following:-

   (a)Whether the child is ready to spend overnight time with the father;

   (b)When that should commence;

   (c)The frequency and duration of the overnight time;

   (d)In the event the expert determines that the child is not ready to        spend overnight time, then what Orders might be appropriate for            the child’s time with the father.

9. In the event the parties cannot agree as to which child psychologist is to undertake the report Pursuant to Order (8), the mother shall nominate three child psychologists to the father and he shall select one and the parties shall share equally the cost of the report. At least one of the child psychologists nominated by the mother must have rooms in the Sydney area.

10. The parties are to ensure the child psychologist engaged for the purpose of order (8) hereof, is provided with the following documents:-

    (a)       A copy of these orders;

    (b)       A copy of the Family Report dated 29 January 2013; and

    (c)       A copy of the reasons for judgment which give rise to these orders.

11. The father’s time with the child pursuant to these orders is to be suspended on the following special days and times, so that the child might enjoy those times with his mother:-   

    a)On Mother’s Day and the mother’s birthday.

    b)On Christmas Eve in years ending in an even number.

    c)Catholic Easter Sunday, and the child’s birthday in odd numbered years from 9.00 a.m. to 12.00 noon; and in even numbered years from 12.00 noon to 4.00 p.m.

    d)On Christmas Day for all except from 10a.m. to 4 p.m. in even numbered years.

    e)The changeover for such occasions, should it be required, is to be the same as set out in order (5)(a) above.

12. In the event the child’s sporting commitments fall on a time when he is to spend with the father, the father shall deliver the child to the sporting commitments or collect the child from the sporting commitment at the conclusion of such commitment and the mother shall provide the father with the timetable of the child’s weekend sporting commitments. The mother is not to enrol the child in any sporting or extracurricular activity which will require the father to deliver the child to or collect him from same unless the father has agreed to that enrolment in writing or in an email. A consent obtained for participation in an activity in one year is not to be taken as authority to enrol the child in that same activity in the following year without the specific written consent of the father.

13. Each parent may attend any sporting, school or extracurricular activity in which the child is involved in circumstances where parents are encouraged to attend or do so as a matter of normal course.

14. That in the event any of the father’s time with the child coincides with Greek Orthodox Easter Sunday, the father’s time shall be suspended from the previous Saturday from 4.00 p.m. until 4.00 p.m. on Greek Orthodox Easter Sunday and the father shall have the following Sunday in lieu of the missed day for the same period of time as the father has missed as a consequence of this order.

15. The mother is permitted to spend time with the child on holidays within Australia or overseas (if agreed to in writing by the father) twice per calendar year for up to two (2) weeks in each period. The time spent by the child with the father be suspended during those periods and makeup time is to be provided in the two week periods immediately before and immediately after any such holiday period. The suspension is not to take place in circumstances where the mother is holidaying at home or in the Sydney area.

16. Prior to the commencement of the child’s first term at school, the parties are to agree as to changes for the time the child spends with his father to accommodate his school time and also provide for the child to have school holiday time with the father. Further, the parties are to put in place arrangements for the child to Skype with or telephone communicate with the father at times which are reasonable and accommodate the child’s relationship with his father.

17. In the event of the parties not being able to agree on the arrangements for the child to spend time with the father once the child commences school, then they are to jointly appoint a mediator to assist in reaching agreement in relation to those matters. Only in circumstances where mediation has not been able to facilitate an agreement are the parties to apply to a Court to determine any dispute.

18. The father is restrained from consuming alcoholic beverages for 24 hours prior to the commencement of his time with the child, pursuant to these orders and during the period of time he spends with the child.

19. Within 30 days of the date of these orders the mother and father shall do all such act and things and sign all documents necessary to ensure that the child has a valid Australian and Greek Passport. Thereafter the parents are to ensure such passports remain current. The mother is to have the primary carriage of obtaining such passports.

20. The mother and father shall equally share the costs associated with the issuing and renewing of Australian and Greek Passports for the child.

21. Upon the mother receiving each passport for the child as provided for in these orders, the passports are to be forthwith delivered to the manager of the Family Court of Australia, Sydney Registry, 97-99 Goulburn Street, Sydney and the Manager is to retain the passports and release same only to one of the parties upon receipt of a signed and witnessed consent from the other to the release of the passports to the other. The consent is to specify the period of time the passports may be retained by the other party. Upon the expiration of the time specified in the consent the parent who obtained the passports are to return them to the Manager of the Court.

22. The mother be permitted to change the child's Christian names from J … to J … Kokkali and the mother and father do all things and acts and sign all documents necessary to change the child's name within 30 days of the date of these orders. The mother is to be solely responsible for the payment of any costs associated with implementing this order.

23. Each party is restrained from causing or allowing the child to be known by any surname other than Brigham.

24. Each parent is permitted to apply to reserve a place for the child in any school of their choosing. Prior to lodging any such request or application for a place with a school each party is to request the other parent to sign the application form. If the form is not returned signed by the other parent within 14 days of provision of the form the supplying parent is to assume the other parent has declined to sign the form and that parent can then proceed to lodge the form with the school on the understanding that the application is made by one parent only.

25. Prior to the child commencing school the parties are to agree about the school which he will attend and how any school fees are to be paid. In the event that no agreement about a school for the child to commence his schooling being reached by 1 July in the year immediately before he is to commence his schooling, either party is at liberty to apply to the court for an order in relation to same and each party is on notice that unreasonable conduct in relation to this issue may be met by an order for costs.

26. Each party shall do all things and sign all documents as may be required to:-

    (a)Authorise each parent, without limitation, to communicate with and received communication from any doctor or health professional, of whatever kind, with whom the child may consult;

    (b)Authorise each parent, without limitation, to speak to and receive all written communication from any school or other educational institution, including any day care centres or preschools attended by the child, failing which this Order shall of itself constitute such authority and;

    For the purpose of orders (26)(a) & (b) each party is at liberty to publish a copy of these orders to any doctor or health professional, treating or consulting about the child, or any principal or administration person connected with an educational centre at which the child attends.

    (c)Keep the other parent informed of their residential address, telephone contact number and other electronic communication addresses or address for the purpose of communication with the child (such as Skype and Email) with any changes of same being notified to the other party in writing within 48 hours of same occurring.

27. Each party shall do all acts so as to advise the other in the event of any serious accident, injury or treatment by a medical practitioner (other than for minor ailments) and the name and practising address and telephone number of such practitioner where such event occurs during the time that the child spends with each of them and is to provide to the other parent such information as might be reasonably requested about the child, together with any information, assessment or other documentation provided to a parent in respect of the child.

28. Within 14 days after the making of these Orders and at any necessary time thereafter, the parties are to communicate in relation to the child’s day to day routine, future arrangements and medication by way of email or text message in the case of urgency.

29. Each party is restrained by injunction from denigrating the other or any partner of the other or half-sibling of the child within the presence or hearing of the child or allowing the child to remain in the presence or hearing of anybody denigrating such persons.

30. The Mother is restrained from referring to the Father by any name other than “Daddy” or “Dad” when talking to the child.

31. Each party is to give to the other 28 days prior notice of any intention to change their residential address.

32. Otherwise any outstanding parenting application stands dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Brigham & Kokkali is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5114 of 2011

Mr Brigham

Applicant

And

Ms Kokkali

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceeding before the court is the final hearing in this matter so far as it relates to parenting orders.  The parties finalised their property matters at an earlier time.

2. Mr Brigham (“the father”) and Ms Kokkali (“the mother”) are the parents of J Brigham (“the child”) born in 2010, now aged three. They were married in September 2004 and separated finally in May 2010. The father is 39 years of age and the mother 38 years of age.

3. The father has re-partnered with Ms Y, and they have a child named K who was born in 2012.

4. The parties met with Ms M, Family Consultant, on three occasions in the lead up to the hearing before me. A Child Responsive Program Memorandum dated 25 July 2012 was marked as exhibit X4 in the proceedings, and the Family report dated 29 January 2013 was marked as exhibit X2.

5. The circumstances in which the parties separated has, in my opinion, significantly contributed to the state of the parties’ current parenting relationship and, further, to the history of disjointed time which the child has been able to spend with his father since the separation. Although the question of actual causation of the breakdown of the cohabitation has, quite properly, not been canvassed in the hearing, those circumstances which have been the subject of evidence placed before the court lead to at least an understanding of how the mother could feel bitter towards, and betrayed by, the father.

6. The parties separated in early May 2010. The child had been born in early 2010. The father by his own admission had commenced a relationship with his now partner Ms Y on 1 January 2010. Ms Y was a person known to the mother and a co-worker of each party at one time. By the time of the separation the father had used unpleasant words to the mother’s mother and the mother was very concerned about the father’s ability to appropriately care for the child. At one level it is amazing that the parties have been able to achieve any degree of co-operation for the benefit of their son.

7. It is now almost three years since the separation and the parties appear to have significantly moved on from the emotional states they both have experienced in the past. The establishment of a new and co-operative parenting relationship is what is desirable to allow the child to develop a proper and close relationship with each parent. I am satisfied that each parent wants the child to have a good and close relationship with the other parent.

8. Between the completion of the hearing on 28 March 2013 and the date of delivering these reasons I made orders for the child to spend time with the father for the purpose of allowing him to attend his father’s wedding to MsY. Those orders were as follows:

   IT IS ORDERED, PENDING FURTHER ORDER AND BY WAY OF ENSURING THAT [THE CHILD J] CAN SHARE IN THE CELEBRATION OF HIS FATHER’S CELEBRATION OF HIS MARRIAGE TO [MS Y]

1.The mother deliver [the child] to the father and/or [Ms Y] at 10.00 a.m. on ...  April 2013 at the McDonalds Sydney Airport Gateway store, 9 Ross Smith Avenue Mascot (Sydney Airport Precinct).

2.The father cause his brother [Mr B]  to deliver the child [J]  to the mother at 6.45 p.m. on … April 2013 at the McDonalds Sydney Airport Gateway store, 9 Ross Smith Avenue Mascot (Sydney Airport Precinct).

1. It was necessary to make the orders because the parties were unable to agree upon an arrangement which would ensure the child had the opportunity to be part of the father celebrating his marriage to his partner Ms Y.

2. Since the separation, there has been a staggered history of contact between the father and the child. There was a lengthy period in 2012 where the father had no contact with the child.

3. Orders were made on 24 August 2012 which saw an emerging pattern of time for the father with the child to a point where he was spending time with him in Week 1 from 1.30 p.m. to 5.30 p.m. on Tuesday and Thursday, and in Week 2 from 1.30 p.m. to 5.30 p.m. on Thursday and Saturday. That time was to be supervised by Mr B or Ms U. There was additional time on 25 September 2012, 25 December 2012, and 21 January 2013. By order, I suspended the operation of the supervision during the period 10 December 2012 to 24 December 2012. I note there is no complaint by the mother in relation to the father’s time with the child between those two dates.

1. On 24 August 2012, the matter was listed for hearing in relation to the requirement for supervision of the father’s time with the child.

2. On 5 February 2013, the orders were varied by consent so that the father spent time with the child each Monday between 1.30 p.m. and 5.30 p.m. and each alternate Saturday between 10.00 a.m. and 4.00 p.m. The time was to be supervised by either Mr B or Ms Y. The changeover point was to be at the food court at D Shopping Centre.

3. On 5 February 2013, the mother advised the Court that she had moved her residence to the Illawarra region. The father further advised that as at 14 February 2013, he would be residing at northern Sydney suburb W.

4. Prior to her move, the mother had lived at eastern Sydney suburb L in a property rented by the parties and the father had lived in close proximity.

5. Each of the parties provided further minutes of the orders which they sought at trial. The mother’s minute of order was marked as exhibit W1 and was again updated on 28 March 2013. The father’s minute of order was marked as exhibit H1. There was some commonality of orders sought by each party, however, the most significant disputes between the parties related to the frequency and duration of the time the child should spend with his father together with the necessity for supervision.

The Issues

1. The parties identified the fact issues at the commencement of the hearing on 14 February. Those issues were narrowed during the trial and ultimately the following are identified as issues for determination:

   ·The requirement for the father’s time with the child to be supervised. This is due to:-

   (a)The father’s alcohol use.

   (b)The father’s requirement to take strong prescribed medication to dissipate his pain.

   (c)Irresponsible action by the father in relation to sharing his medication with others.

   (d)Irresponsible actions in relation to the safety of the child.

   (e)Evidence of angry outbursts towards the mother’s mother, including the use of offensive language.

• The childs surname. The mother wants it changed to Kokkali-Brigham.

• Overseas travel. The mother wants to be able to remove the child from Australia for the purpose of holidaying overseas.

• The return of the mother to live in the Sydney area when the child commences Primary School.

• The amount of time the child is to spend with the father.

• The arrangements for travel for the child for the purpose of changeover of care between the parents.

Credit

The father

1. The father generally gave his evidence in an apparently straightforward and honest manner. There were occasions when he appeared to be annoyed by the questioning of the mother’s counsel and became argumentative or confrontational with her counsel. Generally, however, he was cooperative in answering the questions he was asked. I do have some doubts about some of his evidence and as I deal with that evidence, I will specify where those doubts arise.

The mother

1. The mother generally gave her evidence in an apparently straightforward and honest manner. She was cross-examined by the father who represented himself, and there was no Independent Children's Lawyer appointed in the case. The mother was, therefore, not exposed to any real test of her evidence, however, she presented as a cooperative and apparently honest witness.

Evidence of the father

1. In cross-examination the father conceded that he commenced his relationship with his current partner before his separation from the mother and before the birth of the child J. He said his relationship commenced on 1 January 2010.

2. The father was asked whether he had been truthful in the history he gave in respect of his alcohol abuse when he saw Dr H. He replied in the affirmative. He was asked what he told Dr H about his alcohol consumption. He said he told him he was “just a social drinker”. He could not recall exactly how much, in terms of quantity, he had described to Dr H. He recalled saying to Dr H that he drank “a couple of beers a day”. He said this amounted to 14 beers per week and he drank normal strength beer in a bottle of 330mls. He denied additionally consuming spirits. He said he consumed his alcohol at home or work functions or at barbeques. He denied that consumption was the same as when he and the mother lived together. At that time he said that he would consume up to 10 beers per day.

3. The father was taken to that portion of Dr H’s report which describes his alcohol intake as two to eight beers on one occasion per week. The father said the response arose because he was mistaken or confused by the questions of Dr H. He had intended to tell Dr H that he had two bottles of beer a day. He said that the mother’s descriptions of his alcohol use were exaggerated. He denied that he was referred to the S Clinic for alcohol use and said it was for pain management.

4. The father was cross examined about an incident in July 2010 when he was arrested at the Sydney Football Stadium. He denied on that occasion he had consumed more than two to three beers during lunch. He agreed he was arrested by police. He agreed they said he was affected by alcohol. He denied he resisted arrest. He denied he fell to the ground and said rather he was pushed. He agreed that he claimed that incident was an assault. He said he was charged with failing to leave a licensed premises and resisting arrest. He agreed the charges were dismissed at a court hearing.

5. The wife tendered and had marked as exhibit W2 the COPS entry for 9 July 2010. Given that the charges were dismissed, and given that no transcript of the judgment of the magistrate who dismissed the charges is available, it would be unwise to place credence on the report contained in exhibit W2.

6. The father was asked whether he would be prepared to agree to not consuming alcohol during the time that the child is with him and for a period of 24 hours beforehand. He said he would not be prepared to agree as it was not necessary. He was asked then to look at his affidavit of 6 July 2012 at paragraph 146, where he said he would be prepared to agree to that. The father said it was an onerous restriction.

7. The father was asked about travel for changeovers involving the child’s care. He said he was not prepared to travel to Wollongong to spend time with the child. He said he would do so if the court ordered. His objection to travelling to Wollongong is that it did not give him an opportunity to spend time with the child in his own home.

8. The father confirmed that at the current time he is able to have time off work on Monday between 1.30 p.m. and 5.30 p.m. He confirmed that his employer had agreed to him having the whole of Monday off work at this stage in order for him to spend time with the child. The father was seeking 12 weeks where he had every Monday with the child. The father said that he could make up time with his employer by working on weekends.

9. The father confirmed that he was opposed to the mother taking the child out of Australia. He said that this was because he had seen an address in Greece in relation to the child’s baptism. He agreed to the mother being able to travel with the child once the trust between the mother and the father improved.

10. The father was asked about providing his medication for others to take. He agreed that he had allowed a friend or friends to take some of his Lyrica medicine. He appeared to think that was a responsible thing to do.

11. The father denied that he had become unconscious, due to a medical condition and/or excessive use of alcohol, during the course of the marriage. He denied the contents of paragraph 30 of the mother’s affidavit. That affidavit alleged that after the birth of the child, the father had walked to Bondi with the child and the mother had met him two hours later for lunch and observed that he smelled of alcohol and observed that he was drinking beer. It further alleged that once a week, the father did not return home until between 2 a.m. and 4 a.m. and when he did get home, he smelled of alcohol, was stumbling and slurring his words. On a couple of occasions, she found him asleep on the floor and on the stairways. I accept the mother’s evidence in relation to paragraph 30 of her affidavit in preference to the denial by the father.

12. The father was cross examined about taking the child for a walk in January 2010 when the mother said the temperature was 35 degrees celcius. The father denied it was 35 degrees and said the record showed that it was 27 degrees on that day. He denied that the child was red and limp on return. Again I prefer the mother’s evidence in relation to the incident. I accept that she was wrong in describing the temperature at 35 degrees.

13. The father was asked about an occasion when the child hit his head on the gate at the Suburb L property. He acknowledged that incident had occurred. He said he had been attempting to open the gate lock and the child’s head fell forward. He denied that there was a mark on the child’s head. Again I prefer the evidence of the mother in relation to that incident.

14. In paragraphs 27 and 28 of the affidavit of the maternal grandmother there are allegations about interaction between the father and herself. It was put to the father in cross-examination that he dug his fingers into her arm. He responded “no, that was a different time.” He denied that he called her a “village person”. He accepted that he used inappropriate language as she described. He agreed he told her to go back to Wollongong. He agreed he asked her when was the last time she had kissed her husband. He denied he kicked the mother in front of the maternal grandmother. He said he tapped her with his foot whilst she was attempting to take a video of him. Again I prefer the evidence of the mother and her witness in relation to that incident.

15. In relation to the preparation of his affidavit, the father conceded that he was assisted by his partner in preparing his affidavit. He was at that time self-represented. He denied that some conversations were “cut and pasted” from his affidavit into hers. He agreed that he had relied on notes which had mostly been kept by his partner on her phone.

16. In re-examination, I asked him about the conflict between what is reported to have been said by him to Dr H in Dr H’s report and the evidence he had given orally in respect of his usual drinking habits. He said “he asked me about my drinking habits, I told him I might have two a day, I might go out for drinks and have eight. Dr [H] said ‘two to eight a week?’ and I said yes.”

The father’s partner, Ms Y

1. The father’s partner, Ms Y, was cross-examined by the mother’s counsel. She was asked about the recent incident involving the child and a radio at her house. She said at the time, she was on the lounge, feeding the baby. The father was about three metres away and could see the child. The child was playing with the radiogram and turned the volume up very loud. It frightened him and Ms Y said “it frightened me”. He did not cry, he got a fright, then after about 10 minutes, he asked “where is mummy?” He was less cheerful. The father went to the child and embraced him. He said “it’s alright”. They then read a book together. I accept the evidence of Ms Y in relation to that incident. I do not accept that the father hit the child. It is a matter of concern that the child told his mother that he had been hit by his father.

2. Ms Y was asked what she observes of the father’s drinking habits. She said he does not drink at home other than on weekends, where he would usually drink three to four beers. On occasion, he might drink up to six to eight beers. Ms Y has been on maternity leave for six months. Prior to that she had worked with the father. She denied that he drank every day at work. He only consumed alcohol when there were work functions. She observes that he consumes beer and maybe wine or spirits as a last resort.

3. Ms Y said that she had typed the affidavits of both the father and herself. In relation to conversations where they were both present, she agreed that she “cut and pasted” conversations recited in the father’s affidavit into her own. She said she made notes after changeovers. Those notes were called for and ultimately produced.

4. Ms Y was further cross-examined about the father’s alcohol use. She was asked whether she had lived with the father during 2012, and she said yes. She was asked would it have been every weekend you saw him consume alcohol at home, she replied, “no, once every three weekends”. She was then asked “so over the year, you say he consumed three drinks a weekend on average?” to which she replied “yes”.  She was then asked about the report in paragraph 32 of the Family Report, where she is said to have told the Family Consultant that he does not consume alcohol at home. She said “I believe I said ‘rarely’”.

5. When changeover has occurred at D Shopping Centre, Ms Y said that they generally stay in that area.

Evidence of the mother

1. The mother gave further evidence in chief as part of a case in reply. She gave evidence about some portions of her affidavit which needed to be corrected. She was asked to look at paragraph 25 of the father’s affidavit. She said the conversation in respect to the child’s birth certificate did not occur. The father had in paragraph 25 said that he had requested the mother to provide him with the child’s birth certificate so the father could take it to work and have it copied. He said the mother had refused his request saying “that is not happening”.

2. In relation to that evidence, I prefer the evidence of the father in respect of that incident. It has the ring of truth to it and the father did obtain a copy of the child’s birth certificate from Births, Deaths and Marriages.

3. In relation to the contents of paragraph 52 of the father’s affidavit, the mother was asked about the address provided in Greece. She denied that it was her address, and she said as best she understands, it’s the address of the Arch-diocese of the Greek Orthodox Church in which all records of baptisms are kept.

4. The mother then gave evidence in relation to the child’s surname. She said as an alternative to a hyphenated surname, she would be content for him to have the name Kokkali as part of his Christian names rather than his surname.

5. The mother was further cross-examined by the father.

6. The father asked the mother about her allegations that he complained of being dizzy. She said that this occurred at times when he was driving. She agreed that during 2009, the parties did “a fair amount of driving”. She said it happened every weekend. She agreed that in the beginning the father did most of the driving, however, she said towards the end he did “not that much”.

7. The mother agreed she did not consult with the father about moving to the Illawarra region. She said that she had a letter sent by her solicitor.

8. The mother agreed that during the marriage there was no violence. She further agreed that prior to separation she was not aware of him fighting in any circumstances.

9. The mother was asked, “now that you are living [the Illawarra area] with your parents, are you willing to participate in the travel necessary for changeover of [the child]?” She responded “I want to share”. The mother said that she was proposing, at this stage, to stay in the Illawarra area indefinitely.

10. I raised with the mother a proposal in relation to assessing when the child might be about to start overnight time. She said she would accept a recommendation from the Family Consultant as to a suitable person or number of persons who may assess if the child is ready to spend overnight time with his father.

11. The mother said that her proposal in respect of travel is that the father should travel to Wollongong on Mondays for afternoon time with the child and that she would bring the child to Sydney on Saturdays for his time with his father.

Mother’s affidavit evidence

1. The mother relied on an affidavit filed and sworn by her on 13 March 2013 together with an affidavit of her mother sworn on 20 March 2013.

2. The mother expressed her concern in relation to the time the child might spend with the father and provided the following evidence in support of the orders she sought. I will address the evidence in relation to the issues which emerged during the course of the hearing.

3. The child was only four months old when the parties separated. Following the separation, the mother remained living in Suburb L and was assisted by her mother in caring for the child during the week. Frequently on weekends the mother and her mother, together with the child, would travel to the Illawarra area where the mother’s parents resided. In February 2013 the mother and the child moved to reside with her parents.

4. The mother is self-employed and works from home. Her hours of work vary from week to week.

5. The mother outlines a history of back pain, which the father has suffered, since at least 2009. He was prescribed medication to assist in easing his back pain. During the time that he was taking that medication the mother observed that he also drank alcohol. There was a period in 2009 when the father did not attend work for six weeks.

6. The mother says that prior to the separation, there were a number of occasions, following the father consuming alcohol, when she found him unconscious on the stairs in their house or passed out on the lounge room floor. This allegation of the father drinking alcohol and consuming prescribed medication to a point where he was so intoxicated/affected that he either became unconscious or fell asleep on the floor, is denied by the father. The mother recited conversations which she said took place very frequently during the course of the marriage, where the father complained of severe headache and/or having dizzy spells. He also complained of pain in his back.

7. The mother observed that in order to relieve pain, the father frequently lay down for periods of half an hour. She observed that whilst driving around in Sydney obtaining quotes for house renovation, the father put his car seat down so he could lie down during the trip. She set out other examples of where the father had to lie down, including in a movie theatre.

8. The mother says that following the birth of the child, the father did not assist in his care. When the child was six weeks of age, the mother’s mother stayed at the Suburb L property to assist her.

9. Notwithstanding the mother’s statement that the father had little or nothing to do with the care of the child, she says that on several occasions each week, he said to the mother, her brother, and her mother or indeed members of his family, when they offered him advice about the child “Don’t tell me how to look after my child.”

10. In January 2010 (when the child was only weeks old) the father took him for a walk. The mother complained that it was 35 degrees in temperature. She said that when the child returned, his face was bright red, he was covered in sweat, and he was limp. His eyes were closed and he was barely responsive. I note that these facts are denied by the father, and in cross-examination, the mother agreed that these facts were the subject of a complaint in the Local Court. She conceded that the father had produced records from the Bureau of Meteorology in respect of the particular day, showing that the temperature in Sydney was not 35 degrees as she alleged.

11. In March 2010, the mother says the father was bouncing the child too vigorously in a “bouncer”. She asked him to stop, he replied “don’t tell me how to look after my child.” In that same month, the mother complains that the father put the child in the bath which was far too hot for him.

12. The mother then makes a number of general complaints, not supported by specific evidence. She says on one occasion (date and time not provided) whilst she was sleeping the father took the child from the home. He did not return for one and a half hours. This caused the child to be not fed for five hours. There was another occasion where the mother says the father kept the child in his care for the whole day and she said there was insufficient milk provided to the father for that duration of time. In February or March 2010, the mother, on a couple of occasions, left the child with the father whilst she went food shopping. When she returned, she observed the father was drinking beer. Prior to separation, the mother says that once a week the father did not return home until either 2 a.m. or 4 a.m. and he smelt of alcohol when he did return home.

1. In March 2010, the mother says the parties were entertaining guests at home. On this occasion, the father gave some of his prescribed medication to male guests. That allegation is not denied by the father.

2. Following the separation in May 2010, the parties agreed that the child should spend time with the father. It was to take place in the presence of either the mother or her mother every Wednesday between 3.30 p.m. and 5.00 p.m. and every Friday 4.00 p.m. to 5.00 p.m. at the Suburb L property. The visits continued until mid-December 2010. Between July 2010 and October 2010, the mother says that the father removed the child from her home on about five occasions whilst he was spending time with him. Such removal was without notice and without her consent. On one occasion, the mother says that the child was forcibly removed from her mother’s hands and the father ran out of the house with the child, causing the child to hit his head on the back gate.

3. On another occasion, contrary to requests made by the mother, the father removed the child from the Woollahra house and took him to a park.

4. There was an incident which occurred in the mother’s home on 22 October 2010, as described by her in her affidavit, where the father said some rude and confusing things to the mother and her mother. The incident took place in the presence of the child, who was crying and then screaming and appeared distressed.

5. On 17 December 2010 the mother says that at about 3.00 p.m. she was assaulted by the father when he grabbed her right wrist and twisted it. He also kicked her on the buttocks. The mother then had her solicitor advise the father that the child would not be available on 22 December 2010. On 23 December 2010, the mother attended at a Police station, and applied for an Apprehended Domestic Violence Order (“ADVO”). When the matter was listed for the first time before the Local Court on 20 January 2011, the father, on a without admissions basis, consented to an interim ADVO being made. On that day, the father was able to spend some time with the child. That took place in the presence of the mother’s mother.

6. The final hearing of the ADVO took place on 16 May 2011. The ADVO was discharged.

7. On 6 October 2011, the mother proposed that the father should spend time with the child supervised by Dial-an-Angel. The father complained he could not afford that.

8. From early 2011, the mother and father were not able to reach an agreement regarding the location and supervision arrangements for the father to visit with the child. The mother says the father did not properly address her concerns raised in her solicitor’s letter dated 17 November 2010. As a consequence, the father did not spend any time with the child from 22 January 2011 to until 20 January 2012.

9. For a number of reasons, it appears that from the end of January until 29 March 2012 no contact took place between the father and the child. During April 2012 no visits took place, partly because for the last two weeks of April, the mother stayed near Wollongong to celebrate the Greek Orthodox Easter.

10. In May 2012, there was an altercation between the father and the mother’s brother. As a result of same, the father was charged with assaulting the mother’s brother. The matter was heard in the Local Court on 14 February 2013. The offence was found proved and the father was placed on a good behaviour bond.

11. Following the incident in early May 2012, the mother suspended all time between the child and the father.

12. On 24 August 2012, further orders were made for the child to spend time with his father. Those orders were varied by consent on 14 December 2012.

13. The mother describes behaviour in the child from mid-December 2012 as “more clingy and emotional”. He suffered from bed-wetting and he also wet his pants.

14. In December 2012, there was a period when the father’s time with the child was not supervised. The only complaint raised by the mother in relation to that time is that the child complained of being afraid because his father took him to the beach. The mother explains that she told the father what the child had said and the father promised not to take the child to the beach. The father’s actions on that occasion appear to have been perfectly appropriate.

15. From the beginning of January 2013, the father’s time with the child has been supervised by his partner Ms Y. On 10 January 2013, the mother received a telephone call from Ms Y during the course of a visit. She told the mother that the child was sad and wanted to go home. The mother was then able to speak to the child. He told her he wanted to come home because he was scared. The mother then asked Ms Y what had happened. She explained that “[The father] turned the amplifier up really loud and that scared [the child]”. (I note the evidence of the father and Ms Y was that the child had accidentally turned the amplifier up, not the father).

16. The mother said that when the child came home after she collected him on that occasion, he said “Daddy hit me and angry”. I am satisfied that the child was not hit by his father on that occasion. I also accept the evidence of the father and his partner that the child had turned the amplifier up which gave him a fright as it was loud.

17. The mother says that after the unsupervised visits, “I noticed that [the child] had commenced to stutter when speaking.” In my view this is a most unfortunate allegation to make on the part of the mother, to lay at the father’s feet the cause of his son’s stutter.

18. The mother said that she noticed when there was a week’s gap between visits, the child settles down between the visits, his sleeping is better, he wakes less during the night and his speech also improves, in that he stops the stuttering. She says the stuttering reappears immediately after his visits with his father. I note there was some evidence from the Family Consultant in relation to a child of this age’s stuttering as part of normal development.

19. The mother has now enrolled the child at pre-school in the Illawarra region. He now attends three days per week, being Wednesday, Thursday, and Friday.

20. The mother addresses her application to change the child’s surname. She has reverted to her maiden name following the separation. She says there has been some confusion in respect of her name and the child’s name. She would like the child to attend Greek School, and it may be confusing for him when other children have Greek surnames. She wishes to travel extensively with the child in the future, and having the same surname, she considers, will make travel easier.

21. The mother sets out her evidence in support of her application to be able to travel overseas with the child. She wishes to be able to travel overseas for up to eight weeks per year. This seems to be associated with visiting extended family in Greece. The mother’s father is 73 years of age, he would like to return to his village in Greece, and he would like to take the child to meet his brothers, cousins and nieces there. If there are extended periods of time overseas the mother would ensure the child kept in contact with his father by telephone or Skype.

22. The mother’s mother Ms K swore an affidavit on 20 March 2013. The maternal grandmother’s affidavit is corroborative of the mother’s affidavit evidence. She describes occasions following the separation where the father had come to see the child at the mother’s house. The maternal grandmother took on the role of supervisor because she understood her daughter wanted her to do that. The father asked her to leave on many occasions but she refused. On some occasions he took the child and left the property.

23. The maternal grandmother described an occasion where the father was particularly rude to her, referring to her as a ‘cleaner’, telling her that she should go back to her husband, enquiring about intimate occasions between the maternal grandmother and her husband.

Father’s affidavit evidence

1. The father’s affidavit evidence was contained in an affidavit sworn by him on 21 March 2013. He also relied on an affidavit by his partner Ms Y, who affirmed an affidavit on 25 March 2013.

2. The father is 39 years of age. He is a financial product advisor by occupation. He has been employed by AA Company for seven years. His work hours are usually 8.45 a.m. to 5.00 p.m. Monday to Friday. Since 2010, his employer has permitted him to have leave regularly in order to accommodate spending time with the child.

3. The father recites that the current arrangement for him to spend time with the child is that he spends from 1.30 p.m. to 5.30 p.m. each Monday and from 10.00 a.m. to 4.00 p.m. each Saturday with the child. This has been the routine since 5 February 2013.

4. The father and Ms Y plan to be married in April 2013.

5. On 14 February 2013, the father moved his residence from the eastern suburbs of Sydney to the northern Suburb W.

6. In support of his application for equal shared parental responsibility, the father says that on 3 March 2010, at the request of the mother, he took the child to a doctor to have a rash investigated. This assertion is not denied by the mother.

7. The father outlines the length he went to in October 2010 to engage with the mother in mediation through Relationships Australia.

8. In July 2011 the father enrolled in a six week parenting after separation course.

9. Also in support of the above application, the father attaches a number of email exchanges between he and the mother. On my reading of those exchanges, there is nothing offensive or confronting in the email from the father to the mother. I observed that the mother’s responses are short, however, the father has not apparently seen that as a discouraging sign.

10. The father seeks an order in relation to relocation. At the conclusion of the hearing, he effectively conceded that it was unlikely that an order would be made in the terms which he sought. The father had sought that the mother be required to return to live in the Sydney Metropolitan Area (not more than 20 kilometres from the General Post Office) before the child commences his formal schooling.

11. In support of his application, the father says that the first occasion he became aware that the mother had an intention to relocate from Suburb L to the Illawarra region was on 19 December 2012, when he met with the Family Consultant.

12. The father says that the drive time from the eastern suburbs of Sydney to the Wollongong area, where the mother’s parents live, is approximately one and a half hours. Prior to the move, the mother was living in Suburb L and the father in a nearby suburb.

13. The father complains that the mother’s removal of the child from Sydney to the Wollongong area makes it significantly more difficult for him to be involved in the child’s day-to-day activities.

14. Between 24 August and 9 October 2012, the father’s time with the child was supervised by the NN Agency. The father annexed to his affidavit, and marked “O”, copies of visit summaries prepared by the supervisor from that company. The supervisor had addressed emails to both the father and mother following her supervision.

15. There is one report which raises concern. That report is dated 12 September 2012. The content of that report is not denied by the mother. The following words appear in relation to the conclusion of the supervised time for the child with his father.

    I then held [the child] in my arms and walked to [the mother’s] house. [The mother] was waiting out the front of her house. As I passed [the child] to [the mother], [the mother] started to angrily confront me as to why [the child] was dropped off by [the father] at 5.40 p.m. instead of 5.30 p.m. [The mother] then angrily accused me of not doing my job properly and not controlling [the father] enough and letting [the father] drop [the child] off 10 minutes late. [The mother] also angrily told me that it was now being noted that I was not performing to the best of my abilities. I tried to explain to [the mother] that [the father] and [the child] had left the school playground and started to walk towards [the] car at 5.25 p.m. [The mother] was still quite angry and told me that she was unhappy that on the previous visit [the child] had with [the father], that [the child] was dropped back to [the mother’s] 10 minutes late. [The mother] then angrily asked me to not let [the father] control me and that I should control [the father] and ensure that [the child] was dropped back to [the mother’s] by 5.30 p.m. I tried to apologise to [the mother] and assure her that I would ensure [the child] was dropped back to her house by 5.30 p.m. on the next visit with [the father].

16. In the father’s affidavit, he sets out in detail what has occurred on access visits since 24 August 2012. Of concern is a report in paragraph 74 of his affidavit of an occasion on 3 January 2013. On that occasion, the father reports that he and his partner Ms Y, together with their baby K, attended at the mother’s house to collect the child for a visit. The father was holding K in the front garden and his partner Ms Y was on the porch steps. The father heard the mother say to Ms Y “how old is she now?” and Ms Y replied “12 ½ weeks”. The father says the mother was kneeling down, putting the child’s shoes on, and said to the child “Oh, that’s about the same age as when he left you, [J].” The mother did not deny that she uttered those words.

17. In paragraph 75, the father sets out details of 10 January 2013, which was an occasion when, he says, the child was playing with the radio knob and happened to turn the volume to full while it was on. This gave him a fright. It then goes on to explain how Ms Y rang the mother and she came and collected the child.  The behaviour of the father and Ms Y on that occasion was most appropriate and showed real concern for the child.

18. On 12 January 2013, there was another visit. On that occasion, the mother asked Ms Y “Why? Did you hit him, did you?” to which Ms Y replied “Ah, no, not at all”.

19. The father sets out in detail what he alleges were breaches of the orders made on 24 August 2012 and 14 December 2012. He specifies 16 occasions where he did not spend time with the child. In paragraph 116, the father sets out details of an attempt by him on 11 February 2013 to spend time with the child. He asserted that 11 February 2013 was the first Monday following the making of orders on 5 February 2013, and according to that order, he was entitled to spend time with the child between 1.30 p.m. and 5.30 p.m. When he arrived at D Shopping Centre for the scheduled time with the child there was no sign of the mother or the child. The mother was contacted by text message; she replied “sorry, court orders commencement are the week of 16 February. Please check the amended orders. Thanks ….” The father’s partner then responded “Hi …, I have checked and confirmed new visit to be every Monday (order 3(a)) commencing 5/2/13 with the first Saturday (order 3(b)) visit to be held 16/2. Please confirm you are not bringing [the child] for today’s visit.”

20. The orders are clear on their face. The first occasion upon which the father was to spend time with the child pursuant to the orders made 5 February 2013 was 11 February 2013. The mother did not comply with that order.

21. The father’s other times where he says he was not able to exercise time with the child included occasions when he was not available himself to spend time. Other occasions were when the child was unwell and on another occasion when the mother was unwell. There appears to be no offer by the mother to make up any lost time, nor was there any provision in orders for that to occur.

22. It is the mother’s case that the father will not agree to any proposal which she makes relative to the child’s future. In order to test that assertion, I asked the mother where she would propose the child might commence his schooling if she were to remain living in the Wollongong area. She named a number of schools which she said would be acceptable, however, she has not, clearly at this time, had an opportunity to investigate all possible schools in the area where she lives. In my presence and in Court, the father did not voice any opposition to any of the schools to which the mother was considering sending the child. This was in the face of a specific invitation by me for him to do so.

23. In the father’s affidavit he sets out details of a Christening which the mother arranged for the child through her church. This occurred post-separation. It appears to be acknowledged that there was no direct consultation by the mother in relation to the christening other than to advise the father where it was to take place. She also made it clear to him that the function after the christening was not available for him or his family to attend. When the father raised the possibility that his brother might be one of the child’s godfathers, that possibility was dismissed out of hand on the basis that he could not possibly be because he was not of the Greek Orthodox persuasion.

24. The mother’s case is that the father is not consultative and is controlling. In my view, the evidence supports a conclusion that the mother has a similar characteristic.

25. In relation to overseas travel, the father expresses a desire that the child might travel with him overseas once he has attained the age of about seven years. He raises a concern that his relationship with the child may be damaged if the mother is able to take the child overseas for extended periods of time as she proposes.

26. In relation to the mother’s proposal to change the child’s surname, he says that following the parties’ marriage, she did not assume his surname. He says that she offered no concern for the child because she had not changed her surname to that of the father. He records that in discussion about this matter the mother said to him “heaps of mums have different surnames from their kids these days.”

27. The father recites a family history of the use of the name J Brigham.

28. The father points out that the child was christened as J Brigham in the Greek Orthodox Church following the separation.

29. In relation to names designated to parents, the father raises a concern that the mother refers to him by his name when addressing the child. He submits that she should refer to him as “daddy”.

30. The father refers to the fact that the mother has already dispensed with the surname Brigham for the child and refers to the enrolments the mother has made for the child in two pre-schools.

31. Documents produced under subpoena by TT pre-school show that the mother enrolled the child with the surname Kokkali in that establishment. This enrolment was to commence in January 2013 for two and a half days per week. On the enrolment form, the mother did not provide any details of the father, including his name.

32. Also produced under subpoena are attendance records and an enrolment application form in respect of Jonathan’s attendance at PP pre-school. In this enrolment form, signed by the mother on 5 November 2012, the child is registered under the surname of Kokkali-Brigham. Again, no details are provided at all of the child’s father. That part of the form which provides for “name of parent 2” and details in relation to same is completely blank. Further, in relation to emergency contacts, the father is not included as an emergency contact, only the mother’s parents.

33. There is one reference to the father contained right at the conclusion of the application form. The reference is to the fact that the father is to have supervised visits and there is an ongoing Family Court matter. The mother provided a copy of the child’s birth certificate, which shows his surname as Brigham. It also names his father. At the time of the enrolment, there was no order of court permitting the mother to change the child’s name for any purpose.

34. The affidavit of Ms Y, the father’s partner, is supportive of his evidence. She recites evidence in relation to changeovers and communication with the mother. It is clear that she has made a concerted effort to remain neutral in relation to any conflict between the parents.

1. Perhaps contrary to expectations, she appears to have gained some trust from the mother.

Expert Evidence

1. Two expert’s reports were marked as evidence. The report of Ms M, Family Consultant, dated 29 January 2013 was marked as exhibit X2. The report of Dr H, dated 4 February 2013, was marked as exhibit X3.

2. Having identified the orders being sought by each of the parties, the Family Consultant turned to set out details of the adults. In relation to the father, the Family Consultant opined that his persistence in wishing to spend time with the child suggests that he is committed to developing a meaningful relationship with his son, however, his plan to have equal time may not be realistic at this moment. She noted that the father described the mother as being aggressive and hostile in her interactions with him as well as her interaction with members of his family. He described some of her actions as “intimidation tactics”. He described his interaction with the child in positive if not glowing terms. There were no positive statements in relation to the mother.

3. In the Family Consultant’s interview with the mother, she noted that the mother voiced an opinion that the child “needs a relationship” with the father. Conversely, she expressed a great deal of anxiety about the child spending time with the father and she appeared quite ambivalent about it. The Family Consultant noted that when required, the mother has the capacity to support the child’s relationship with his father against prioritising her own negative feelings. She described her relationship with the father as highly conflicted. She described him as having no respect or reverence for others. She expressed a view that he has too much arrogance and no respect, which made it impossible to have any civil discussion with him. She holds the view that he is deceptive. She has adverse views of the father and his relationship with his current partner. She was concerned that he would not have the capacity to be an alert father due to a mix of alcohol and medication. She had no issue with Ms Y, even though she said they had differing “ethics, morals and beliefs”. She held the view that the child’s four hour visits with his father are too long. She was concerned she was pushing the child out the door to go on these visits against his wishes. She says he returns exhausted.

4. The Family Consultant said Ms Y presented as a sensible and personable young woman. She had worked as a nanny for two families with four children each for a period of 10 years before turning to administrative positions in the financial services industry. She was able to empathise with the mother’s view of her, given her involvement with the father prior to her involvement with the father prior to the marital separation, particularly in circumstances where the mother was left with the child as a young baby. She would like to be able to communicate with the mother at some time in the future.

5. Ms Y had experienced nothing in the father’s behaviour to cause her to feel concerned about him as a parent. She observed him to be a social drinker and he did not drink at home. She has not observed any problem with alcohol so far as the father is concerned. She has not experienced any behaviour on the part of the father which is aggressive, violent or intimidating.

6. The Family Consultant’s observations of the child and his relationships led her to conclude that he has a healthy primary attachment relationship with his mother.

7. Under the heading “Evaluation and recommendations” the Family Consultant concluded “the parental relationship remains fraught with conflict and mutual distrust.” The Family Consultant opined that the court may have to consider a sole parental responsibility order or alternatively define each parent’s area of responsibility. This was because they had what she concluded to be a poor capacity to communicate without conflict. She noted that the child appeared to have a warm and trusting relationship with his mother. She also noted that the child’s relationship with his father appears to be developing. He was able to feel relaxed with Ms Y almost immediately. His reaction to her suggested he liked her.

8. The Family Consultant opined that the only issue in relation to the mother’s parenting capacity is in relation to her capacity to support the child’s relationship with his father.

9. The Family Consultant observed that the father’s behaviour towards the child during the observation seemed appropriate to a parenting role. She thought there was a limited understanding of the impact of the breakdown of the relationship between him and the mother on the mother and, further, the history of his relationship with the child in relation to the time which the child might reasonably spend with him into the near future.

10. The Family Consultant opined that any dramatic increases to the time the child spends with the father should be avoided, as they would be likely to cause him to become overly stressed and anxious and therefore undermine the developing father/son relationship. The Family Consultant points out there have already been significant disruptions to the father/son relationship. Time should be increased very gradually and in increments. It may be wise to err on the side of caution and introduce overnight time only after he has reached four years of age or perhaps even older. It should commence as one night only, and after around six months this could be increased to two full days and one night.

11. In relation to each parent’s capacity to provide for the physical and emotional needs of the child, the Family Consultant opined that the child’s healthy and well cared for presentation suggests the mother has the capacity to provide for his physical and emotional needs except possibly in relation to his needs with regards to his spending time with his father in order to develop a relationship with him. In relation to the father, the Family Consultant said

    … the father, when observed with [the child], was consistently appropriate in his management of him. This would tend to suggest that he is able to provide for his physical needs. He was also observed to interact with him in loving and sensitive way, which tends to suggest that he has the capacity to meet his emotional needs at this level. His stand on equal time, however, tends to suggest that he may not appreciate [the child’s] emotional needs as a child in the midst of highly conflicted parents.

12. Exhibit X3 is a report of Dr H dated 4 February 2013. Dr H is a specialist in occupational medicine. He is a trained assessor of permanent impairment for the state of New South Wales. He is a work cover approved medical specialist in New South Wales and a member of the Ergonomics Society of Australia. He prepared a report for each of the parties, having been engaged as a single expert. He inspected a considerable number of documents provided to him on instruction, and also as provided to him by the father on interview.

13. The expert had been requested to perform an independent report on the father’s chronic back pain and the management of that pain including medication and treatment. He also reported on the father’s alcohol intake. He noted the Australian Government’s Australian Institute of Health and Welfare Guidelines 2012 in relation to the consumption of alcohol by males. He noted low term risk as being consumption of up to 28 standard drinks per week is regarded as low risk; 29-42 per week risky; and 43 or more per week high risk. Short term risk was described as the consumption of seven or more standard drinks per day for men is considered risky in the short term.

14. He noted the father advised that the only form of alcohol use is normal strength beer. He gave a history of generally drinking on one occasion each week, at which time he would ingest between two and eight standard glasses. He concluded “the information available, as described in the above section and also in question six below, would indicate that there should be no harmful consequence from his (the father’s) current alcohol intake or any side-effects expected from the interaction of the prescription drugs of Lyrica and Effexor with alcohol.” A summary of his conclusions is as follows

    [The father] has a long history of low back pain, due to relatively well developed degenerative changes in the lower lumbosacral disc. There is no evidence of nerve impingement or spinal instability, and his condition appears to be well managed with his current approach of continuing to be physically active and utilising the medications of Lyrica and Effexor. He did not admit to any problem with drinking alcohol and acknowledged a moderate intake of between two and eight standard beers on average of one day each week. His physical examination did not reveal any stigmata of excessive alcohol intake and the available liver disease marker, gamma GT enzyme, results are within normal range.”

15. As will be seen later, the weight which may be given to this report is the subject of submission by the mother. Her counsel submits that, given the conflicting evidence about the average alcohol intake of the father, no weight can be given to the conclusions given by Dr H.

16. The Family Consultant was asked by me to comment on each party’s proposals for the time that the child might spend with his father. The Family Consultant said that the rate at which time for the child with his father might progress needs to be considered in the context of the history of the relationship with his father which has been significantly disrupted. In the foundation years, his opportunity to cement and develop his solid parenting relationship with his father has been limited. In relation to the mother’s proposals, whereas they provide for frequent contact between the child and his father in the initial stages, the introduction of overnight contact is significantly delayed. It is more realistic to think in terms of when he starts school, perhaps having some overnight time with his father. Equal time arrangements are quite unrealistic at this time. The Family Consultant was concerned that the child may be absorbing some of the negativity that surrounds his father in his mother’s care. As he gets older his reaction to this is likely to be more pronounced. It will impact on the way in which he experiences his father. Her recommendations in the current circumstances were the mother, who lives in the Wollongong area, and the father, who lives in Suburb W, is that there be two periods of time each week, one for a shorter period and one for a longer period. She also recommended that the changeover does not involve face-to-face contact between the mother and father. The question of supervision is a matter for the Court to determine in the view of the Family Consultant. The Family Consultant says she holds no views as to whether the father poses a risk to the child if unsupervised. She said there is a concern about imposing a specific date as the start time for overnight contact, if the child at that time is not able to manage it. She named a number of experts who would be able to assess, at some future time, the child’s ability to cope with overnight time with his father.

17. In relation to assessment of the parties’ trust in each other, the Family Consultant said the mother is completely mistrustful of the father and found it difficult to think that the child would ever be safe with his father. There had been a spreading effect of this view into the extended family at the time of the meetings for the family report. She recommended that one method of changeover would be between the mother and Ms Y.

18. The Family Consultant was cross-examined by the mother’s counsel.

19. The Family Consultant was asked about the mother’s reports that the child is now stuttering when he is anxious. She was asked whether she thought this may be indicative of a developmental problem. She said she was unsure, she said little children do go through stages of stuttering, but the extreme level of conflict between these parents could cause anxiety in a young child.

20. The Family Consultant was asked about the recent incident in January this year when the child had become upset following an incident when the radio was turned up very loud by him accidentally. The evidence in relation to this incident was relayed to the Family Consultant, and she said “this reflects what I thought about [Ms Y]. I found that [Ms Y] was really quite impressive. She seemed to feel as though she wanted [the child’s] mother to know that he is OK in her care. For me, this is progress.”

21. The Family Consultant was asked again about the prospect of sole parental responsibility, which she had thought may be appropriate. She was asked “Is that reflective of your view of the level of distrust and capacity of the parents to co-parent?” She responded “yes”.

Relevant Law

Legal principles

1. The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under s 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.

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

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

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

5. Section 61DA(1) requires that:

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

   Subsection (4) provides as follows:

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

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

Section 60CC Considerations

Primary considerations

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

1. This is a consideration which I am satisfied is embraced by each of the child’s parents. The orders I will make will, in part, be designed to achieve this end.

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

2. The mother acknowledged that during the cohabitation of the parties there was no domestic violence exhibited against her. Following the separation there is evidence of the father raising his voice to the mother’s mother and using inappropriate language. There is an allegation that the father kicked the mother at one time following the birth of the child. That allegation is denied by the father who says he tapped the mother with his foot on her buttock. Although the degree of force used may be an issue, clearly it was disrespectful and invasive.

3. The relationship between the father and members of the mother’s family has also been the subject of evidence. The father was convicted of assaulting the mother’s brother on an occasion post separation.

4. Despite the above evidence of violence by the father I am satisfied none has been directed against the child. There is nothing in the evidence which would satisfy me that the child is at risk of violence from his father. Although the child told the mother on one occasion that the father had hit him I am satisfied he was not hit.

Additional considerations

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

1. The child is only three years of age.

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

2. I accept the evidence of the Family Consultant in relation to this consideration. The child has a good, close and dependant relationship with his mother. He has a developing relationship with his father.                   

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

3. Following the separation there have been long periods of time when the father was not able to spend time with the child. It is difficult to determine exactly why each period of time occurred. It largely appeared to be brought about by conflict between the parents and perhaps the inability to reach an agreement without the assistance of lawyers or the court.

4. There has been no evidence which is the subject of controversy about the payment of child support.

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

5. Although this case is about the amount of time the child might spend with his father rather than considering the question of changing principal caregiver for the child, it is nonetheless important to consider the effect on the child of the increase in time which the orders sought by the father seek.

6. The orders which I propose will not in the immediate future increase the time the child will spend with his father. At the moment the child spends two periods of time each week with his father and he appears to be managing that amount of time away from the mother. The mother gives evidence of behaviour she has experienced before the time the child shares with his father begins and again after such time. She describes the child objecting to being taken to see his father. She describes a regression in behaviour on the part of the child particularly in relation to his experiencing enuresis. She has also described intermittent stuttering. None of the matters raised by the mother were a matter of serious concern to the Family Consultant nor indeed to the mother who proposes a continuation of the current arrangements for the child to spend time with his father.

7. There is no specific expert evidence which is able to assist in determining the cause of the symptoms reported by the mother.

8. I will take into account the evidence above referred to when making orders.

   (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

9. There is a considerable amount of practical difficulty involved for each parent of implementing time for the child to spend with his father. This arises principally for the following reasons:-

   ·    Both parents have to work to support themselves and other persons;

   ·    Both parents have moved their residences from the close proximity they shared when both resided in the Eastern suburbs of Sydney;

   ·    The father’s time with the child will at least in part and for a time into the future need to be supervised;

   ·    The parents residences are now about 90 minutes drive apart.

1. Notwithstanding the circumstances set out above each parent is able to support the child spending time with his father.

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

2. I am satisfied the parents each have the capacity to provide for the needs of the child in the configuration I propose to order. The mother has been the primary caregiver for the child since his birth. The father has been an occasional carer since the child’s birth.

3. The evidence of the Family Consultant and also the reports of supervised time the father experienced (annexed to the father’s affidavit) attest to the father acting appropriately in the caring for the child.

4. The mother, to her credit, appears to have been able to support the child having a relationship with the father following the separation and the revelation that the father was then in a relationship with Ms Y. She has also cared for the child on most of the days of his young life. The child presented well when he saw the Family Consultant. No adverse comment is made by the Family Consultant relative to the parenting capacity of the mother.                 

   (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

5. The child is only three years of age. Each of his parents bring a rich and diverse family history for the child. The mother is of Greek origin. She is able to communicate in the Greek language and she proposes the child learn the Greek language. She still has significant family connections to Greece. She is apparently able to obtain a Greek passport for the child and she proposes to do so.

6. As for the father, much of the heritage he provides for the child is connected to the child’s name. The name J Brigham is now in its fourth generation. It is the name the father has, his father has and his grandfather has. The retention of the name J Brigham is very important to the father and to the heritage thechild inherits from his father.

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

7. This consideration is not applicable to this case.

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

8. I conclude that each of the child’s parents are acting responsibly and have demonstrated that. Each parent would hold different views to the conclusion I reach. The father asserts that the mother’s move to the Illawarra region was not a demonstration of responsible parenting because it placed considerable distance between the father and the child and thereby made it more difficult to put in place and implement a frequent regime of time for the child to spend with the father.

9. The court needs to consider the circumstances the mother found herself in following the separation. She had to work to support herself and the child. She needed the assistance of her mother to be able to do that. Her mother also had the obligation to her husband who lived in the Wollongong area. Clearly the mother considered she had little option than to make the move she did. She has been able to provide the child with a stable and supportive home environment. The support the mother’s mother supplies in the care of the child is invaluable to the mother.

10. The father also moved his residence from the Eastern suburbs to the Northern suburbs. This is not quite as far a move as that of the mother however it is a significant move. Again he moved as part of a sensible economic reaction to the circumstances he found himself in. He was about to have a baby with his new partner. She would have to cease work. They were renting in the Eastern suburbs. The mother had moved to the Wollongong area and therefore there was a loss of close proximity.

11. The mother points to the father’s consumption of alcohol. She says the father consumes alcohol at a level which inhibits his ability to be an effective parent. It is difficult to determine what impact the father’s consumption of alcohol has on the father. Whereas the court may not have a serious concern if he consumed only two small bottles of beer in one session of drinking, it would be an entirely different matter when he consumes eight small bottles of beer. What is unclear is whether the father can limit his alcohol intake to one or two small bottles of beer. The evidence of Ms Y would suggest he could, however, the evidence about the quantity of alcohol he consumes is so conflicted that the court is left with no clear understanding of the amount of alcohol the father usually consumes and what the impact of that alcohol may have on his parenting.

12. I am confident that if the father is not consuming alcohol when he has the care of the child and has not consumed alcohol in a 12 hour period before the child comes into his care he will be an appropriate caring father.

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

13. I have considered this matter earlier in these reasons and I rely upon my findings and comments made in relation to same.

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

14. There is no current family violence order in place. The only order in relation to Family Violence was an interim order which the father consented to on a without admission basis until there could be a hearing. At the hearing the order was discharged.

    (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

15. I have attempted to make orders which will avoid the necessity for further proceedings between the parties, however, it must be acknowledged that there is a significant possibility of the parties re-litigating aspects of this case such as when does over night time for the child with the father commence and how long should the child spend with the father at one time.                    

    (m)any other fact or circumstance that the court thinks is relevant

16. There is no other fact or circumstance which requires consideration at this point.

Section 60CC(4) & (4A)

1. I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence suggests that each of the parties has probably contributed to the circumstance where the child has been denied the opportunity to develop his relationship with his father at significant times since his birth and also for too lengthy a period of time. I refer to the evidence of the Family Consultant in relation to that matter and accept her evidence in relation to same.

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

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

Section 61DA

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

2. The presumption does not apply where there has been family violence.  In this case there has been family violence as has been set out earlier.

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

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

Parental responsibility

1. The mother seeks an order for sole parental responsibility. In her submissions, she relies on the high conflict and distrust between the parties as one of the reasons shared parental responsibility would not be expected to work for the benefit of the child. At the moment, it is submitted by the mother, that the only conduit for communication is via Ms Y, the father’s partner. It is submitted that during the cross-examination of the father, he was at times flippant and not prepared to make any concessions. It is submitted that one example of this is his requirement that on Christmas Day, the mother drive the child to Bondi Junction in order to meet with the father. It is submitted that if the Court was of the view that sole parental responsibility should not continue until the child is an adult, then it could be operative until the time that the child commences overnight stays with his father. It could also be limited in duration until he commences school.

2. On the father’s side, it is submitted that he would feel completely cut out of any decision-making in respect of the child’s welfare by an order for sole parental responsibility in favour of the mother. Further, the father relies on the material annexed to his affidavits, which, it is submitted, shows that he has engaged in communication with the mother via email and text message in an appropriate manner. He submits that there is no reason why he should be excluded from decision making in respect of important aspects of the child’s life.

3. It was the mother’s contention that the father will not agree to any proposal that she raises in respect of the child. In my view, such a submission and/or statement is exaggerated. I have reviewed the evidence put forward by each party so far as it touches upon the ability of the parties to communicate in relation to the child. I accept that, from the mother’s perspective, life for her would be considerably easier if she did not have to consult the father in relation to important aspects of the child’s life. However, in order to test her assertion that he will not agree to anything, I did, in open Court, invite the mother to nominate a range of schools or schooling that she was considering for the child once he reaches school age. She nominated two or three possibilities. I then enquired of the father in court whether he would oppose any of those suggestions, to which he responded that he would not. There was nothing about his presentation at that time which led me to suspect that he was not being genuine. He does, of course, have a desire that both his children would attend the same school. For him, unless he moves to the Wollongong area, that would be difficult. He did say, however, that if the mother returned to live in the Sydney area he would consider moving his residence so that each of his children could attend the same school.

4. In my view, to deprive a parent of the ability to participate in the decision-making for his or her child is a serious matter and contrary to the intention of the Act. Such deprivation should occur only in the circumstances prescribed by the section. Section 61DA creates a presumption that equal shared parental responsibility by parents for a child, is in the best interests of a child. The Act notes that the presumption may be rebutted by evidence that satisfies the Court that is would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child. It is further the case that the presumption does not apply if there are reasonable grounds to believe that parent of the child has engaged in a) abuse of the child or another child who, at the time, was a member of the parent’s family; or b) family violence.

5. In this case, it is not argued that the presumption should not apply because of the provisions of s 61DA(2) of the Act. The case is put on the part of the mother that it is too difficult for these parents to be able to agree on important matters and therefore there will be no agreements reached.

6. Apart from the consideration of how a parent who is denied participation in making decisions which would normally fall within the decisions required for parental responsibility, the Court needs to consider the impact on the child of having only one of his parents make those decisions for him. The presumption is rebutted when, on balance, the best interests of the child dictate that equal shared parental responsibility should not be ordered.

7. In this case, although acknowledging that there have been significant difficulties between the parties in their communications in the past, the more recent history suggests that they have been able to communicate in an effective and child-focussed manner. In my view, there is reason for an optimistic approach and I am of the view that the evidence does not support a conclusion that the best interests the child would dictate that the presumption of equal shared parental responsibility be rebutted.

8. One of the submissions relied upon by the mother was that the Family Consultant considered that equal shared parental responsibility may not be appropriate in this case. I have considered all of the evidence placed before me in relation to the ability of the parties to communicate in a proper and child-focussed manner and I do not agree that the balance has fallen against the making of an equal shared parental responsibility order in this case.

Section 65DAA

SECTION 65DAA(1)-(4)

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

2. In this case the child is only three years of age. The Family Consultant does not support an order for equal time. The father acknowledges that it would not be appropriate at this time to make an order for equal shared time. He does however seek such an order as time progresses. The Court would not rule out, at this time, the making of an order for equal time at some future date, however, there would need to be considerable changes in the parties ability to communicate and they would need to live close enough to be able to make such an arrangement workable for the child.

3. The immediate focus of the Court is upon creating a circumstance in which the child might develop his relationship with his father and advance his general development to a point where it would be appropriate to make provision for overnight time for the child with his father.

4. I find it is not in the best interests of the child to order equal time for him to spend with each of his parents at this time.

SECTION 65DAA(5)

1. I have in these reasons considered each of the matters required by this section. The orders which I propose to make represent the most significant and extensive orders for the child to spend time with the father as I consider the child can reasonably cope with at this time and still remain healthy and substantially content.

2. The parties agree that there should be an order for the child to live with the mother.

3. The parties are at issue in relation to the time that the child is to spend with his father. The issue dissipated to a considerable extent by the end of the hearing. The father acknowledged the benefit of allowing the current orders, which on all accounts appear to be working well for both the child and the parents, to continue for a period of time and there then be an assessment by an agreed child psychologist as to whether the child is ready to spend overnight time with his father, and whether that, in his particular circumstances, would be likely to promote and extend his relationship with his father and otherwise be in his best interests.

4. The mother seeks that the current arrangement for time between the child and his father continue until the child commences school. She submits that at that time there should be an assessment. The father subscribes to a view that the assessment could take place as early as the child attaining the age of four years.

5. Given that determining when such an assessment might take place involves a considerable amount of speculation by the court, and given that the cost of obtaining the report from a child psychologist might be not insignificant, I consider a conservative approach is warranted and I propose to order that the assessment and report process commence in September of the year before the child commences school. On current anticipation, the child would probably commence his formal schooling in 2015.

6. The parties are at issue about where the ongoing time for the child to spend with his father should take place and who should do the travel. The mother’s position is that the child should spend time with his father each Monday between 1.30 p.m. and 5.30 p.m. and that such visits take place in the Wollongong area and be supervised by either Ms Y or Mr B. Further, that the child spend time with his father each alternate Saturday from 10.00 a.m. to 4.00 p.m. with such visits to occur in Sydney, with the mother to deliver and collect the child from the father at D Shopping Centre.

7. The father proposes that the mother do all the travelling for the time the child spends with him. In the alternative, if the Court is of the view that the travel should be shared, then the mother should do the travelling on the Monday time and bring the child to Sydney and the Father do the travelling on the weekend time.

8. Each party has good reasons for proposing the time as set out above. The father’s concern orientates around his ability to work and the availability of his supervisors. The mother’s proposal also orientates around her commitments and her ability to work.

9. In my view, there is a good sense in having the shorter periods of time which are to be spent by the child with his father take place in the Wollongong area, and thereby reduce the amount of travel time that the child would have to undertake. The father would propose, in any event, that if he did the travelling on Saturday for the Saturday time the child had with him, the father would collect the child from Wollongong, drive to Suburb W, have some time with the child at Suburb W and then drive him back to Wollongong. That would seem to significantly impact on the time that the father might have available to interact with the child.

10. The arrangements for supervision, and the time proposed, will probably have to change when the child commences school at the beginning of 2015. He clearly will not be able to have time out of school on Monday to spend time with his father. Thus the arrangements that are being considered at the moment will be in place for about 18-20 months.

11. The practical implications of each proposal for each of the parties are considerable. That then raises the question in relation to the necessity for supervision of the father’s time with the child.

12. The basis upon which the mother seeks supervision can be described to include the following concerns:

    a)Her concern that the father’s consumption of alcohol affects his judgement.

    b)Her concerns that the father’s medication, which he takes together with the impact alcohol ingestion, affects the father’s judgement and ability to care for the child appropriately.

    c)That in the past, whilst the child has been in the father’s care, he has suffered injury. On one occasion, he was injured when his head hit a gate. On another occasion, it is at least contended by the mother (and I accept same), that when the father returned the child after a walk on a summer’s day, the child was red, sweating and limp. I do not reach a conclusion that the child’s state was as a result of the father exposing the child to heat. The cause of the child’s presentation is unknown, however, I accept that the mother is entitled to assume that the father taking the child for a walk on a hot summer’s day probably led to that condition.

    d)The mother says that the father is irresponsible and points to the fact that he has provided some of his own prescribed medication to friends in order to allow them to experience the affect of the medication. The mother says this is a highly irresponsible action and raises real concerns about how reliable the father is to care for a young child.

1. The mother has other concerns which she has detailed in relation to the father’s alleged mood changes, aggression, and anger. Without making specific findings about each of those matters, I accept that the mother has a basis for holding those concerns.

2. Considerable time has not passed since the matters which raise the mother’s concern about unsupervised time between the father and the child have occurred. Whilst accepting that the evidence in relation to the father’s use of alcohol at the current time is contradictory, there is in place, and has been for some time, an order which prevents the father from consuming alcohol for a period of 12 hours prior to his spending any time with the child and also prevents his consuming alcohol during any time that he does spend with the child. Further, since the latter part of 2012, there has not been an incident which raises a concern as to inappropriate behaviour by the father with the child. In fact, the contrary is clear. I accept that since the latter part of 2012 the father’s behaviour with and interaction with the child is not established on the evidence to be anything other than appropriate.

3. The father must be given an opportunity to prove himself to be a reliable and trustworthy caregiver to the child. Any such opportunity must be contained within acceptable boundaries. In my view, creating a circumstance where the father collects the child from his mother in the Wollongong area and spends Monday time with the child in the Wollongong district unsupervised, would give an appropriate opportunity for the father to create a track record of responsible parenting in a limited circumstance. If such an order was made providing for such time to be exercised unsupervised in Wollongong, the mother would have an opportunity to observe the father at the changeover at the commencement of the time and the conclusion of the time. The father would be required to drive to Wollongong to exercise his time. As a consequence, any indication that the father was inebriated or had consumed alcohol at the time he collects the child, or any other aspect of his presentation which, on any reasonable ground, would raise a concern as to his immediate ability to properly care for the child, would give rise to a circumstance where the mother would not hand the child to the father on that occasion. The father would know and understand that circumstance. He would have the Court order restraining his use of alcohol before and during any period of time with the child and would know that he was putting at risk the extension of his time to spend with the child once the child starts school and/or also the possibility of the supervision order being revoked.

4. Having regard to all those matters, I consider that it would be appropriate to give the child an opportunity to spend time alone with his father in Wollongong on Monday afternoons in the circumstances described above, and I propose to order same. I consider that the combination of the orders that I will make ought to be sufficient reassurance to the mother that the child’s welfare will be properly protected whilst the child is in the care of father on those Monday occasions.

5. As a further precaution against inappropriate or unsafe parenting by the father, I propose that the time the child spends with his father on Mondays not commence until after he has had six consecutive periods of Saturday time (if that is possible) or at least six periods of Saturday time, albeit not consecutive, because of some cause unanticipated by the parties, which has interfered with the consecutive nature of the occasions.

6. Once the initial period of six Saturday times concludes, the regime I propose by order is that every second Saturday, the child would spend between 10.00 a.m. and 4.00 p.m. with his father in Sydney and every second Monday he would spend time with his father between 1.30 p.m. and 5.30 p.m. at Wollongong. The intention of the orders is that the child spends time with his father on one occasion every week. The Monday period that he spends with his father will be the Monday immediately following the Saturday on which he does not spend time with his father.

7. I also propose to provide for the parties to be able to agree in writing about additional time that the child might be able to spend with his father, and whether such time is required to be supervised or otherwise.

8. Each of the parties seek that the child spend time with his father on special days. There is very little in dispute between the parties in this area. The matter which is in dispute relates to transport.

9. The mother seeks that there be a sharing of transport arrangements for the child to spend time with his father. As best I can determine, a place which is approximately half way between the parties’ residences (in driving time) and which might be suitable for a changeover, is the McDonalds restaurant at southern Sydney suburb E. Given that the father will be required to do all the travelling for the Monday time that he exercises with the child, it is appropriate that the mother do some additional travelling for the Saturday times that the child spends with his father. I propose that the mother deliver the child to the father at his residence at the commencement of Saturday time, and that the father return the child to the mother at the McDonalds restaurant at Suburb E on the conclusion of Saturday time. I propose that for special occasions, the changeover point should be the McDonalds restaurant at Suburb E.

10. There is no doubt that each of the parties may have complaints about the site I have chosen for the changeover and/or whether it is in fact approximately half way in driving time between each residence. I propose to provide in the orders that they can vary that site by agreement between them.

11. In relation to Christmas day, there was discussion during the course of the trial about the advantage of not having the child to be driving on the road every Christmas Day. Both parties appeared to agree that one possible way of resolving that concern is to have the child spend his Christmas time with his father each alternate year on Christmas Eve and every other year on Christmas day. I propose to make such an order. I also propose to make orders for the child to spend time with his father on father’s day, the father’s birthday and K’s birthday.

12. In my view it is important for the child to be able to participate with each family group in important family occasions. There must be a limit to how far this goes, however, events involving immediate family of the child are important and they should be accommodated by the parties when they occur.

13. I propose to make provision for make-up time for the child with his father where a scheduled time is missed because of some circumstance other than the unavailability of the father.

14. The parties have agreed that they should engage the services of a child psychologist to prepare a report at some time in the future in relation to whether the child is ready to spend overnight time with his father. It is clearly desirable that, into the future, the child have an opportunity to spend overnight time with his father and the father’s family. I propose that time for assessment take place in September of the year before the child commences school. That will be in September 2014. It will probably take some months to prepare the report and I anticipate that the report, if it recommends overnight time for the child with his father, would give rise to arrangements for the child spending overnight time with his father after he has commenced his formal schooling.

15. I propose to make provision for the mother to be able to have the child with her on special occasions and there is no real dispute about such a proposal.

16. Future sporting and extra-curricular activities for the child have the potential to create conflict between the parties. Neither party should engage the child in any activity which interferes with the time the child is to spend with the other parent pursuant to Court orders unless there is an agreement in writing between the parties to that effect. Once there is an agreement about the child’s participation in sporting and extra-curricular activities, each party is then to ensure that the child does attend on such activities during the time he is in their care. It is also important that each parent be able to participate in that activity notwithstanding that the child is in the care of the other parent at the time pursuant to these orders. I will make orders to deal with such a circumstance.

Overseas Holidays

1. The mother seeks orders that she be granted two blocks of four weeks per year to be able to take the child on holidays. That would mean that the child would spend no time with his father during such a block. In my view, four weeks for a child of the child’s age with no contact with his father is too long a period. I propose to make an order allowing her to take two weeks holiday time with the child away from her home. This is not a period during which the mother may take holidays and stay at home. If she is staying at home, then the child should spend time with his father.

2. The mother seeks to be able to take the child overseas. The father seeks to be able to take the child overseas. I do not propose to make any orders allowing travel overseas unless the parties each agree to it. In any event, if required to make such an order I would not permit it at this time, given the lack of trust between the parties as exhibited in the proceedings and the intense anxiety it is likely to engender in each parent if the other was to take the child overseas at this time.

3. I propose to allow for the mother to obtain passports for the child, however, the passports are to be provided to the manager of the Court in Sydney and are to remain in the Court and only removed with the consent of the other parent or a court order.

Other Issues

Surname

1. There is an issue about the child’s name. The mother seeks one of two alternatives. She seeks that she be permitted to have the child’s surname changed to Kokkali-Brigham, or in the alternative, that she be permitted to add the name Kokkali as a further Christian name for the child. The father is opposed to the mother changing the child’s surname.

2. I have a concern which is in part founded on the evidence in relation to the enrolments the mother arranged for the child at pre-schools, and partly on the balance of the evidence, that the mother would permit the child to be known by the name of Kokkali only if she was permitted to change his surname to the hyphenated version she proposes. By the same token, the child has a heritage from his mother’s family as well as his father’s and I see no real harm and I see potential benefit flowing to the child if he is able to have as part of his Christian names his mother’s family name, Kokkali. I propose to order that she be permitted to make such a change. In addition, however, I propose to order that each of the parties be restrained from allowing the child to be known by any other surname than Brigham.

School Enrolment

1. I have discussed this issue in the earlier part of these reasons.

2. During the course of the trial, there was a discussion in relation to enrolment of the child in a school to commence his schooling 2015. The mother suggested a number of schools that she had in mind, and none of those schools were the subject of rejection by the father. The mother in her minute of order proposed that the parties enrol the child at X School. If they are able to reach an agreement now about that matter, I would certainly recommend that they jointly enrol the child at the school. If they are unable to reach agreement in relation to a particular school at this time, then I propose that each of the parties have an opportunity to enrol the child, or at least put him on a waiting list for enrolment, on any school which they consider appropriate. Each of the parties should be invited to join in any such enrolment and if they choose not to, the parent proposing the enrolment should be permitted to go ahead with the enrolment at his or her own cost. Full particulars of the other parent should be provided in each application for enrolment where the application is not a joint one.

3. There will come a time when it is necessary for there to be a determination as to the school for the child and if by 1 July in the year immediately before his commencement of school there is no agreement, then the matter should be relisted by application and each party should be on notice that any unreasonable conduct or attitude in relation to proposals for schooling as determined by the Court, may give rise to an order for costs against such parent.

4. The mother agreed to a number of orders which appeared at the conclusion of the father’s minute of order in relation to communication about medical matters relating to the child, communication about schooling matters relating to the child, provision of authorities for each parent to be able to obtain information from any treating medical practitioner in relation to the child, and some restraints in relation to the way in which each of the parties allows the child to be part of any particular discussions. All of those orders appear to be appropriate and not opposed by the parties.

Address

1. There has been some issue as to the parties not informing one another about their intention to change their residential address. It forms a part of their extensive history of poor communication and conflict

2. I propose to make an order that each is to give the other 28 days notice of any intention to change their residential address. This will ensure that the parties are able to make arrangements as to the child’s care and facilitating the time he spends with his father.

The Orders to be made

1. I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 3 September 2013.

Associate: 

Date: 3 September 2013