C and C - [2003] FMCAfam 132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & C

[2003] FMCAfam 132

FAMILY LAW – Children – contact – family violence issues – child aged two years – mother claims child suffers from separation anxiety – no medical evidence.

Family Law Act1975, ss.60B; 65E; 68F(2); 68F(2)(b)

H v B (2002) FMCAfam 326
Lockhart (1994) FLC 92-467

Applicant:

L-A WC

Respondent:

MJJC

File No:

NCM 5650 of 2002

Delivered on:

2 April 2003

Delivered at:

Coffs Harbour

Hearing date:

1 April 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Loomes

Solicitors for the Applicant:

Douglas Hannaway

Counsel for the Respondent:

Mr Theobold

Solicitors for the Respondent:

Stacks The Law Firm

ORDERS

The child of the marriage, BJC, born 3 February 2001 is to reside with the mother.
During periods that the said child resides with the mother she is to have the sole responsibility for the day-to-day care, welfare and development of the said child.
During periods that the child is in the care of the father he is to have the sole responsibility for the day-to-day care, welfare and development of the child.
The mother and father in joint consultation are to have the responsibility for decision making as to the long term care, welfare and development of the child.
Until the child commences school the father is to have contact with him as follows:
(a)for a period of five days and four nights on one occasion each month during April, May, June and July 2003 commencing on
9 April 2003;
(b)for a period of seven days and six nights on one occasion each month from August 2003 and each month thereafter to include Christmas Day in 2003 and each alternate year thereafter.
The contact referred to in (5)(a) and (b) above is to take place at the father's residence in B.
For the purpose of collecting and delivering the child for contact as set out in Order (5)(a) and (b) above the father shall collect the child from the mother at McDonalds Family Restaurant at G at the commencement of contact and the father or WSP shall return the child to the mother at that same place at the conclusion of each contact period.
So far as is possible the parties shall arrange the dates for contact in Order (5)(a) and (b) above so that the child is returned to the mother on either a Friday or a Saturday with the exception of the contact period scheduled to commence on Wednesday, 9 April 2003.
Once the said child commences school the father is to have contact with him as follows:
(a)for the whole of the autumn and spring New South Wales school holiday periods commencing the day after school term ends and concluding at 2 pm on the day before the child is required to recommence school;
(b)for half of the winter and the Christmas/January New South Wales school holiday periods being the first half in uneven numbered years and the second half in even numbered years;
(c)for two weekends during each school term from the completed of school on the Friday to the commencement of school on the Monday or on the Tuesday if the Monday is a public holiday in New South Wales, such contact to take place within 100 kilometres of the child's residence.
For the purpose of exercising contact pursuant to Order (9)(a) and (9)(b) the father or WP is to collect the child from the mother and the father or WP is to return the child to the mother at the McDonalds Family Restaurant at G or such other place as the parties may agree.
In the event that the child's birthday falls on a non contact day the father is to have contact with the child from 1 pm to 5 pm, if not a day when the child is required to attend school or preschool or for not less than two hours after the conclusion of school or preschool, such contact to be exercised at South West Rocks.
In the event that Fathers' Day falls during a non contact period the father is to have contact with the said child from 9 am to 5 pm on that day at South West R or such other place as the parties shall agree.
the father is to have telephone contact with the child:
(a)on one occasion each week;
(b)on the child's birthday, the father's birthday, Christmas Day and Fathers' Day, if the father is not otherwise able to exercise face-to-face contact on that day.
Telephone contact is to take place by the father telephoning the mother's mobile telephone or a landline nominated by the mother.
The father is to have such other contact with the child as the parties shall agree which may include contact by e-mail.
The mother is to do all things as may be necessary to authorise any daycare centre, preschool or school attended by the said child to supply to the father on a regular basis copies of all reports, bulletins, newsletters, information about school photographs and such other material as is normally provided to parents of children who attend that daycare centre, preschool or school.
The mother is to advise any daycare centre, preschool or school attended by the child of the father's contact details.
Upon the child attaining the age of five years the father shall be permitted to take the child of out Australia for the purpose of a holiday in New Zealand only for a period of up to two weeks provided that:
(a)the father gives to the mother two months' written notice of his intention to do so;
(b)the father provides to the mother written details of the proposed travel itinerary, including flight times and flight numbers and telephone contact numbers in New Zealand, no later than 48 hours prior to the child's date of departure.
For the purpose of Order 18 the mother shall make the child's passport available to the father, including supplying the passport for renewal at the father's expense.
The father is to return the child's passport to the mother immediately upon returning the child to the care of the mother after any holiday in New Zealand.
The parties are to notify each other of any proposed change of address or telephone contact number no later than 14 days prior to such change.
The mother is to give the father no less than one month's notice in writing of her intention to change the child's residence to any place outside the states of New South Wales or Queensland or the Australian Capital Territory.
The parties are granted liberty to apply on contact issues on seven days' notice, the Application will otherwise be removed from the pending cases list.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

NCM 5650 of 2002

L-AWC

Applicant

And

MJJC

Respondent

REASONS FOR JUDGMENT

Application

These proceedings are about the father's contact with a little boy called BJAC who was born on 3 February 2001. B resides with his mother. There is no issue about the fact that B should continue to live with her.
The mother seeks Orders that B should have contact with his father for two consecutive days and nights each fortnight at South West R in the state of New South Wales where the mother lives. She proposes that this regime should continue until B starts school. What she then proposes, according to her Application, is that the two consecutive days and nights should continue each fortnight, still at South West R and that there should also be contact for half of each school holiday period. This would not be restricted to South West R and the proposed changeover point is the McDonalds Restaurant at G.
The Orders that the father seeks are more complex and more numerous. Some 27 in all, according to the Short Minutes of Order which were handed to me at the commencement of the hearing.
The father wishes to have contact with B at B, where he lives, rather than South West R. He seeks the following:
(a)eight days and seven nights, commencing on Wednesday 9 April;
(b)two weeks from the end of April to mid-May, which would include a visit to New Zealand;
(c)nine days and eight nights each month until B starts school.
Once B starts school, the father asks that contact should take place in this way:
(a)for the whole of the mid-year school holidays;
(b)for half of the Christmas/January school holidays, alternating between the first half and the second half each year;
(c)for two weekends in each school term to be limited to a radius of 100 kilometres from the child's residence.
The father also seeks Orders for contact on the child's birthday and on Fathers Day and for telephone contact up to three times a week and contact by e-mail. He wishes to be kept informed of the child's progress at daycare and when the child attends preschool and eventually school, including being notified in case of any emergency.
The father wishes to be able to take B out of Australia from time to time, particularly for holidays in New Zealand where the father's extended family live. Finally, the father wishes to restrain the mother from relocating the child's residence to any place further from Brisbane than South West R.
The background to the matter is that the father was born on

13 May 1964. The mother was born on 16 June 1968. They commenced to reside together on 1 October 1988 and were married on 30 June 1990.
During late 1997 and early 1998, there was a period of separation which was followed by a reconciliation. That was not successful and indeed, the parties separated on 18 January 2001. The mother, at that stage, was pregnant with the child B who was born on 3 February 2001.
There is evidence that in March of that year, the father drove the mother and the little baby to South West R, from where they had previously been living in Brisbane. The mother's stepfather and his partner reside in South West Rocks and the mother wished to take up residence there.
I mentioned earlier that the father's extended family resides in New Zealand and indeed in a town called M. His parents live there and other members of his large family. The father persuaded the mother that notwithstanding the separation, that they should travel to New Zealand together with the baby during the first week in April to in fact visit the paternal grandparents. That in fact took place. They returned to Australia and later that month, the father again drove the mother and the child down to South West R where she commenced to reside.
The mother later travelled to New Zealand that same year in August and visited the paternal grandparents. At the end of August, she moved into a unit at PM. The father had formed another relationship. The mother says that the father's new relationship was turbulent and on again, off again. The father does not agree with that in his evidence.
Contact commenced in February 2002 at South West R. Contact continued until April, when as a result of an incident in the mother's home, the mother applied for an Apprehended Violence Order and on

4 June 2002, the K Local Court made an Order for a period of 12 months. The father consented to that Order and indeed, in his evidence, he admitted striking the mother and expressed his regret for his behaviour.
The Applicant mother commenced proceedings at the Local Court of New South Wales at PM by means of an Application returnable on 7 June 2002. On 9 August, the parties entered into Consent Orders which provided for interim contact as follows:
(a)for four days and three nights once a month between September and November and a specified period in December, all of which contact was to take place in South West R;
(b)for four days and three nights each month in January, February, March and April;
(c)five days and four nights in May, June and July;
(d)seven days and six nights in each month commencing in August and from each month thereafter.
The contact from January 2003 onwards was scheduled to take place at the father's residence in Brisbane. And indeed, on the evidence before me, that contact has in fact taken place.
The Contact Orders provided that the changeover point should be the McDonalds Restaurant at G. The Orders also provided for the proceedings to be transferred to the Family Court of Australia in Newcastle and they were subsequently transferred to this Court and came before this Court for the first time on 20 January this year.
As I mentioned, contact has in fact taken place, according to those Consent Orders and the parties give somewhat differing accounts as to the success or otherwise of those arrangements. Nevertheless, I am satisfied that there has been regular contact. Whilst the mother has expressed some misgivings about the contact, she has indeed complied with those Orders.
There are a number of issues between the parties. As can be seen, the mother does not wish to continue the arrangements for contact that were made in the Consent Orders. She wishes to revert to the arrangements set out in her Application. On the other hand, the father wishes to speed up the process quite significantly and the Orders that he seeks, as I said, include looking down the years a bit to when this child is actually at school and do look at things such as trips to New Zealand and other places outside Australia.
Due to the fact that the mother had only received a copy of the father's proposed Short Minutes of Order just before the hearing, counsel for the parties agreed that she should be given the opportunity to peruse that document and seek advice from her legal advisers about its contents. Her counsel, Mr Loomes, then led her through the document in the witness box and elicited from her answers to each of the father's proposals. I believe that that was an appropriate procedure and it was very helpful to the Court and, I think, to counsel, to ascertain what was really in issue.
It is apparent to me that the following matters are in issue between the parties:
(a)the length of time which the child can be away from his mother;
(b)the pace at which periods of contact can be extended;
(c)when it would be appropriate for the child to spend times at his father's residence in Brisbane
(d)when it would be appropriate for the father to take the child to New Zealand to see his parents and extended family
(e)should there be any restriction on the mother's relocation of the child's residence.
There are other issues relating to schools, preschools and daycare centres providing information to the father and some issue about telephone contact, but they are of a relatively minor nature.
Now, I look at the principles that the Court must consider. I am mindful of the objects set out in Section 60B of the Family Law Act 1975. I am mindful that, pursuant to section 65E of the Family Law Act, that the best interests of the child are the paramount consideration. I am also mindful of the fact that, under section 68F(2), there are a number of matters, which the Court must take into account where relevant in order to help the Court ascertain what are in fact the best interests of the child. Not all are relevant in this case. I have considered whether they are relevant or not. I will deal with those issues in due course.
The evidence before me consisted of the Affidavit evidence of the mother who was also subjected to cross-examination. The mother also relied on the Affidavit evidence of her mother, although that lady, BLF, resides in Queensland, whilst available for cross-examination was not in fact required for cross-examination.
I read the Affidavit evidence of the father and he was cross-examined in some detail. The father also placed his current partner, WSP on Affidavit and Ms P was subjected to some cross-examination.
Now, it is the mother's evidence that she was, in a way, coerced into the Consent Orders of 9 August at the Local Court when the Magistrate said that the parties should agree on Orders or they could well get Orders that they did not like. Now, that may have been the mother's perception. I note however that the parties were both legally represented and I would be of the view that where parties are legally represented they do not have to agree to anything that they do not wish or do not think is appropriate.
I accept the fact that Local Courts are busy Courts with a varied list and that often our state colleagues do not have the time available to devote themselves to Family Law matters and this was certainly a matter that was envisaged to be transferred to the Family Court with a view to coming to this Court.
The mother says that she has gone along with the Consent Orders notwithstanding her disagreement with the effect of them and indeed the evidence supports that. What the mother says, however is, that the child has suffered from some form of separation anxiety and that he has been clingy and tearful upon being returned.
The father does not agree that the contact has had a bad effect on the child. Indeed, he says that the child has enjoyed spending time with him and with Ms P and with Ms P’s two children. She has two boys, N and N, who are aged four and six. Indeed, the father's evidence includes photographs annexed to his Affidavit of the three boys engaged in a variety of activities, including being in the swimming pool and apparently wrestling on the lounge room floor.
The mother does not agree that contact changeover should take place at W. W had been proposed by the father as being an approximate mid point between the mother's residence and South West R and the father's residence in Brisbane. The point that was agreed on in the Consent Orders was, of course, G and the McDonalds restaurant.
The mother says that she would not feel safe at W, that it is a relatively small town with a strip of shops each side of the road although it does have, as I am informed, a police station. The mother said that she does feel safe at McDonalds at G. It is a public place. She complains that the father verbally abused her on one occasion and she has complained of violence and intimidation by the father during the marriage.
As I said, I note that there is currently an Apprehended Violence Order in force from 4 June for a period of 12 months. The mother also has complaints about the expense of contact arrangements. She is working on a part time basis, although hopes eventually to extend her working hours and in due course work on a full time basis presumably once the child is old enough.
The mother has made it clear in her evidence that she has real fears that the father may not return the child to Australia if he were to take him to New Zealand. Indeed, she became somewhat distressed at that point saying that she cannot even get her child back from the top of Queensland. She was referring to a case involving a child from the K area which is one of which I have some personal knowledge which is reported I think as H v B (2002) FMCAfam 326. That was a case where a father failed to return a young child from contact, absconded with the child to North Queensland, made some efforts to disguise the child was eventually recovered as a result of warrants which had been issued.
It is also public knowledge that the father was dealt with by this Court for his serious breach and received a prison sentence which he has served. Such matters, of course, are extremely distressing and can cause parents to be fearful. However, there is no evidence that the father in this case has ever not returned the child from contact. He has a house and a partner, Ms P, in Brisbane. He is permanently employed in Brisbane. Ms P in fact is, I understand, pregnant and expects to give birth in August. New Zealand is a party to the Hague Convention on child abduction and the mother, whilst she may well have a fear that the child may not be returned from contact I am not satisfied that there is a reasonable ground for that fear. There is just no evidence of it.
The father wants the child to spend time with him and with Ms P and her two boys and the new baby which is due in August in his home in Brisbane. He inquired about whether it would be possible for him to relocate in his work to New South Wales. His evidence was that this could not be done without a great deal of difficulty. He is currently with Queensland Fire Service.

If he were to seek employment in the New South Wales Fire Brigade it is his evidence that he would have to spend something like four years in Sydney which would be of relatively little benefit to him. He also gave evidence that Ms P's connection to Brisbane was quite strong. She has two children from her previous marriage and it would be most unlikely that she would be in a position to relocate away from Brisbane.
I take the father's evidence to be that certainly for the foreseeable future he and his new family are permanently settled in the Brisbane area. It is the father's evidence that it is a strain travelling down to South West R to have contact. It would be impractical, in his view, to go back to contact at South West R. It is his view that the child, B, has settled in well in Brisbane. He says that B, in fact, has travelled to New Zealand twice in his short life already and has suffered from no ill effects from that.
He wants to travel to New Zealand at the end of April, early in May, for a period of about a fortnight so that he can take B with him and so that he may see his parents and members of his extended family. There are a variety of reasons for that as well as family reunion. He has tickets for himself and Ms P, although not B at this stage. It is his view that this trip is the last that they will be undertaking for the immediate future because there will be a variety of other commitments, including the impending birth of the child in August.
It was certainly put to him that his parents had regularly travelled to Australia to see family. He denied that they were comfortably off but he indicated that they owned their own home and that they had some money in the bank and apparently they have travelled to Australia on regular occasions and, in fact, relatively recently. Nevertheless, he points out that his parents are not getting any younger. He believes his father is some 66 years of age and his mother approximately 64 and it is his opinion that they are less likely to travel to Australia regularly in the future.
As well as that he comes from a large family, he has other members of the extended family and they would not all be able to travel to Australia with ease to visit him and to see B. His proposals would be that he would base himself in the M area of New Zealand where his parents reside and go out and see other members of his family when he was over there.
Ms WP gave evidence. She spoke of her two boys aged four and six. She denied the suggestions put to her that the father had used violence to her. She was not aware that the father had said to the mother that he got Ms P down on the ground and gave her a good thumping. She said that that did not happen. She has given evidence on two out of the last three occasions she has travelled with the father to pick up the child, B, and to return him. She says that the children travelled well and that whilst the journey is a journey of some distance, about three and a half hours drive from G to Brisbane, that B and the other children cope well with it.
She was not aware of any instance of B waking up in the night and calling out for his mother, although the father did say that it has happened. On a couple of occasions earlier on, the father had gone to the child to comfort him. Ms P was not aware of the father's evidence about that. She may well have slept through it.
What I have to look at are the various factors that are set out in

section 68F(2). As I said, there are 12 of them in all. Now, this is not a matter where the wishes of the child are going to be relevant, he is only 2 years and just on 2 months old, so he is too young for his wishes to be sought or known or in fact given any weight. Section 68F(2)(b) relates to the relationship of the child with the child's parents and other people.
The mother has been the primary care giver since birth. She refers to the child being unsettled after contact, being clingy, as she described it. She has annexed a report from the daycare centre to her Affidavit about that. The father says that he has a good relationship with the child. It is interesting that the mother spoke in positive terms of the paternal grandparents and the mother was not of the view that there should not be contact with the grandparents, in fact on either side. The difficulty is not with the paternal grandparents as people, the mother's difficulty is where they are located, namely in New Zealand.
I look at par (c), the likely effect of any change of circumstances. The mother says that now that the Interim Orders provide that contact takes place in Brisbane, travel to Brisbane at this stage is too far and the child is away from his mother for too long. The mother is also not disposed to agree to travel to New Zealand. She says that the child is too young. She originally said that the age of seven or eight might be more suitable when he could be better able to telephone and call for assistance.
I look at the difficulties and expense of contact as set out in par (d) of section 68F(2). The tyranny of distance is something, which occurs in this case as in so many other cases in this country. The mother lives in South West R, which is near K in New South Wales, the father resides in Brisbane. There is over 500 kilometres between them. The evidence before me is that the car journey from South West R to G takes about two and a half hours, which is the current changeover point. It then takes about three and a half hours to go from G to Brisbane. That is a total of 6 hours one way of actual travelling time, although there is this break at G.
I would comment that the very distance and the travelling time throws doubt on the mother's proposal that the father should continue to travel down to South West R or revert to travelling to South West R on a fortnightly basis for the purpose of exercising contact. It appears to me that that is going to be rather impractical. It is a long distance to be undertaken on a regular basis.
The capacity of parents to provide for a child's needs is a matter I need to consider under par (e). There is no evidence to suggest that the mother is not able to provide for the child's needs. The mother has fears of the father not returning the child from contact, although I am not satisfied that they are well founded. The mother has expressed some fear of the father reacting inappropriately and she describes him as having been violent and so distressed as to threaten suicide in the past. Indeed she inspects the child, she said, for signs of bruises, scratches, et cetera after returns from contact, although there is no evidence that she has found any unexplained injuries. I am not satisfied that there is any evidence which would indicate an unacceptable risk of violence being perpetrated on the child by the father.
I look at the child's maturity, sex and background under par (f). This little boy is aged 2 years and just about 2 months. He has lived in Australia all his life, he has lived with his mother all his life and he has paternal grandparents and extended family in New Zealand. He is not of Aboriginal or Torres Strait Island background, so there are no considerations there.
I look generally at violence issues, which are covered in a variety of paragraphs in section 68F(2). The mother alleges that there has been domestic violence during the relationship. The father denies much of it, except he admits an incident that led to the making of the Apprehended Violence Order. There is an Apprehended Violence Order in force until 4 June 2003 and that is a matter I must take into account.
As I said, the mother checks the child for scratches and bruises after each contact, but apparently has not found any. The Apprehended Violence Order was made at the Local Court at K on 4 June. There are the usual provisions restraining the defendant, who is the Respondent in this Application, from engaging in conduct that it intimidates the protected person or any other person having a domestic relationship with a protected person, in others the Applicant. There is a restriction on not stalking the protected person. There are specific Orders relating not to not assaulting, molesting, harassing, threatening or otherwise interfering with the protected person, and not to go within 100 metres of the premises in which the Applicant resides or work, except to exercise contact with the child B.
There is a restriction on approaching, contacting or telephoning the protected person, except for the purpose of arranging or exercising access to the child or as otherwise authorised an Order made under the Family Law Act. Those are the provisions of the Apprehended Violence Order. It certainly puts paid to an earlier arrangement whereby the father would actually stay at the mother's residence when he came down to see the child. It would not preclude him from approaching the residence if the parties agreed for the purpose of exercising contact. Nevertheless, the Order is in force and as I said, it is one that I must have some regard to.
Paragraph (k) of section 68F(2) is a paragraph directed towards the finality of proceedings. The Court is enjoined to find an Order that will be least likely to lead to further litigation between the parties. Now, the question of residence is not an issue, there is no disagreement between the parties but that B should continue to reside with his mother with whom he has resided all his life.
The Orders that are proposed are to cover nearly 16 years of this child's life. It would be a counsel of perfection to a Court to come up with Orders that would deal with every eventuality. It would not be surprising to me if there were some changes down the track over such a lengthy period of time in respect to contact. I propose to make Final Orders. I do not think that Interim Orders are appropriate, but it may well be that there needs to be some rearrangement of contact at some stage in the future. Who can predict what is going to happen in 5 years from now or 10?
I am not satisfied that there are any other relevant issues, other than those under the said sub-headings that I referred to.
It has been submitted to me that I should have regard to the decision of Butler J in the decision of Lockhart (1994) FLC 92-467. That was a case that referred to contact proposals between Victoria and Tasmania. The trial Judge found that there was evidence of separation anxiety and indeed there was medical evidence to show that the child had suffered from quite significant symptoms and the doctor who gave evidence expressed concerns about the time that the child in that case should be away from the mother.
Against this however, the facts in this case hardly amount to a diagnosis of separation anxiety and indeed there is no medical evidence tendered about this child. There is some evidence from the daycare centre and the mother's evidence that this child is clingy and teary after contact. I think it is common knowledge in Courts exercising jurisdiction under the Family Law Act that children can be unsettled after contact. It is especially so when there is a degree of hostility between parents which regrettably has been the case in the past.
I might add that it is not unknown amongst parents of young children that they can be unsettled the day after travelling and indeed the day after travelling was a matter that the mother referred to in her evidence and indeed there was some cross-examination directed to the father about that. He indicated that he would seek to arrange contact to occur so that the return journey could be on, say a Friday or a Saturday so as not to have the child unsettled when he went to family daycare or in due course, preschool to allow a better transition from the father's care back to the mother.
Now, looking at the contact proposals. If the mother's contact proposals can be criticised for turning the clock back, as Mr Theobold suggested to me, perhaps the father's proposals are equally open to the criticism of being too much too soon. The mother, despite her misgivings, has not denied contact. She has gone along with the Orders that were consented to and the evidence leads me to conclude that the travel to Brisbane and spending time in the father's home is of more benefit to the child than the disadvantages of the travel.
To my mind, it would give the child an unrealistic idea of the father's life if contact were only to take place in the South West R area. This child needs to know where the father lives. Ms P appeared to be a practical and pleasant person who could be relied on to act in a responsible way towards the child. She gave evidence that the father was not available to provide for the child's needs, that she stepped into that role.
It is not surprising that the mother may harbour some resentment towards Ms P because of her involvement with the father and the circumstances that surrounded the end of the parties' relationship. Nevertheless time heals a lot of wounds and I am satisfied that Ms P would be of assistance to the father and as she is a mother herself and there is no evidence to show that she would act otherwise than in a responsible way with the little boy in the house.
I am not persuaded however that a radical increase in contact so that the child would spend over one week each month with the father away from the mother, with effect from next Wednesday, would be in the child's best interest at this stage. This would double the length of time the child would be away from his mum which would be likely to impose a considerable strain on the child who has only recently turned two.
Similarly, I am not satisfied that it would to the benefit of the child for him to leave his mother and travel to New Zealand in a month's time for a period of a fortnight. He may well have been twice already. His two earlier visits took place when he was aged two months and then at six months old. He is unlikely to remember either of those trips. Whilst there is a clear benefit in this child getting to know his paternal extended family I am of the view that a visit to New Zealand would be better left until B is somewhat older.
I consider that a gradual increase in the amount of contact with the father would be more likely to assist the child to bond with the father, to use that particular term, and indeed, the graduated program devised by the solicitors at the Port Macquarie Local Court provided for a gradual increase in contact which would be more of a pace which, to my mind, would enable the child to cope.
Now, the father seeks that contact changeover should be at W rather than G so as to provide a more equal share of the travelling. The mother opposes this on two grounds:
a)the cost bearing in mind that she is not employed full time, and
b)the question of her feeling safe.
She says the father has verbally abused her but nevertheless she feels safe at McDonalds. It is a public place well frequented by people and she regards that as an area of contact changeover, which she can approach without a feeling of undue anxiety. There is an Apprehended Violence Order against the father for the protection of the mother. The fact that the mother feels safe at the G changeover point is a matter that I propose to give some weight. If she feels safe at contact changeover she is less likely to communicate a feeling of anxiety to the child and contact changeover would be more likely to go smoothly. This would have to be to my mind to the benefit of the child.
The mother is opposed to the father having contact with B for all of the mid year school holidays each one of them in New South Wales lasting for a period of a fortnight. She hopes to work full time once B is at school and certainly gave evidence that her employer's work was increasing and that she anticipated there would be a greater amount of work for her rather than two days a week that she is currently doing. This, of course, depends on the arrangement with the child.
If she were to work full time she would be entitled to four weeks annual leave. She fears, however, that she may not be able to take four weeks in one block during the Christmas/January period as that is a busy time in her employment. That may be so although, of course, this is all rather speculative at this stage. Nevertheless, the mother should be given some opportunity to have school holiday time with the child during the year and not just to be restricted to the Christmas/January period.
I am aware that the father's contact will be limited during the school term because, again, of the tyranny of distance so there should be some opportunity for the child to spend a lengthy block of contact with the father during the school holidays. The father gave evidence that he can take 44 days worth of leave in a nine month period because of the type of roster upon which he works which does involve a fairly concentrated and lengthy period of time.
I believe that the Christmas/January school holidays and the July school holidays should be shared equally but the father should be able to have contact for the whole of the other two school holiday periods. Needless to say the New South Wales school holidays are the relevant holidays, as B will be going to school in the State of New South Wales.
Now, the father seeks an Order restraining the mother from moving the child's residence to a distance greater than that which exists between Brisbane and South West R. The mother opposes this and there does not appear to be any evidence that she intends to move the child's residence to a part of Australia that would render contact more difficult. Her immediate plans seem to be to live in South West R and I note that she has employment in that area.
I am not satisfied that there is evidence that would justify my imposing a restriction on her at this stage. It would be preferable to require her to give a month's notice of her intention to change her place of residence to some radical degree and, of course, the residence of the child so that the matter can be considered on its merits. If the mother chose to move to Taree, say, the father may not be very concerned but his attitude would no doubt be different if the mother proposed to move to Tasmania.
There appears to be a consensus between the parties that the father should be entitled to information about the child's progress at Family Day Care, preschool and at school once he attends those institutions.

I believe that it would be helpful to the father/son relationship for the father to be kept up-to-date about these matters. Now, the father also wishes to placed on the record as an emergency contact in the event of an emergency. I must admit to having some doubts as to the practicalities of this as he is over 500 kilometres if the child falls out of a tree and injures his ankle.
The mother was of the view that if this child was injured that she would not hesitate to contact the father in any event that the school or preschool would be more likely to contact her. If this child is injured her evidence was that she would certainly tell the father. I see no reason to disbelieve her in that regard.
I have therefore prepared some Orders, which are relatively lengthy, and I will read onto the record. The reasons for those Orders are the reasons that I have given.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 17 April 2003