Canningdale and Canningdale

FAMILY COURT OF AUSTRALIA

CANNINGDALE & CANNINGDALE

[2010] FamCA 285

FAMILY LAW – CHILDREN – parental responsibility - with whom a child spends time - parties agree the child should remain living with the mother - whether the child should spend overnight time with the father - high conflict between the parents – risk assessment - family violence – child’s view - mother to have sole parental responsibility – agreement child should have unsupervised time with father - gradual increase in the child’s time with the father which is to include overnight time

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 61DB, 64A, 65AA, 65DAA, Pt VII

Goode and Goode (2006) FLC 93-286
Mazorski v Albright (2007) Fam LR 516

APPLICANT:

Ms Canningdale

RESPONDENT:

Mr Canningdale

FILE NUMBER:

(P)NCF

845

2004

DATE DELIVERED:

20 April 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATES:

1 & 2 July, 9 October, 17 December 2009, 23, 25 & 26 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Fowler Predny Solicitors

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kelly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Craney Family Lawyers

Orders

That all prior orders made in these proceedings are discharged.
Orders 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18 and 19 of the Orders made 14 June 2009 are discharged.
That the applicant, Ms Canningdale shall have sole parental responsibility for the child S born … June 2001 (“the child”).
That the respondent, Mr Canningdale shall spend time with the child as follows:
(a)Commencing forthwith and until the weekend prior to the commencement of Term 3 of 2010 school holidays, each alternate weekend from 9.30 am Saturday until 2.00 pm Sunday;
(b)Thereafter and until the commencement of the Christmas 2010 school holidays, each alternate weekend from 5.00 pm Friday until 2.00 pm Sunday.
(c)During the 2010/2011 Christmas school holidays, alternate weekends will extend so that they commence at 5.00 pm Friday and finish at 5.00 pm Monday.
(d)In the event the child will be in the father’s care for the Christmas weekend in 2010 his time with the child will finish at 2.00 pm Christmas Day.
(e)In the event the father is not otherwise due to spend time with the child on the Christmas weekend in 2010 she shall be in his care from 3.00 pm 24 December 2010 until 2.00 pm Christmas Day 2010.
(f)Commencing Term 1 in 2011 and thereafter during school term, each alternate weekend commencing at 5.00 pm Friday until 5.00 pm Sunday.
(g)Commencing from the end of Term 1 in 2011 such of the above orders which provide for the father to spend time with the child on weekends during school holidays are discharged.
(h)Commencing from the end of Term 1 in 2011 from 9.30 am on the first Saturday of the school holidays until 5.00 pm the following Thursday (five days four nights).
(i)Commencing from the beginning of Term 2 in 2011 after each school holiday the father’s alternate weekends with the child shall resume on the first weekend of term.
(j)Commencing from Christmas Day 2011 during the school holidays as follows:
(i)from 2.00 pm Christmas Day until 2.00 pm on 30 December; and
(ii)from 9.30 am on the second Saturday in January until 5.00 pm on the following Thursday.
(k)On the child’s birthday from after school until 7.00 pm in odd numbered years.
(l)On the day after the child’s birthday from after school until 7.00 pm in even numbered years.
(m) On such other occasions as the parties agree.
In the event Father’s Day falls at a time when the child would not otherwise be in the father’s care, the mother’s time with the child is suspended for that weekend and the child shall spend time with the father from 5.00 pm Friday until 2.00 pm on Father’s Day 2010 and finish at 5.00 pm in subsequent years.
In the event that Mother’s Day falls at a time when the child would not otherwise be in the mother’s care, the father’s time with the child is suspended for that weekend.
For the purpose of changeover the parties shall deliver and collect the child from Relationships Australia Contact Centre at G.
In the event Relationships Australia is not able to immediately facilitate changeover at the contact centre at G, changeover shall take place at Relationships Australia Contact Centre at R until a place becomes available at G.
On those occasions when neither the G or R contact centres are not available, changeover shall occur at a public place at G nominated by the mother in writing to the father.
The father may communicate with the child by telephone each Wednesday between 5.00 pm and 5.30 pm. For the purpose of this order the mother shall provide the father with a telephone number which he may use to call the child.
In the event the child is unavailable to take the father’s telephone call the mother shall cause the child to return the father’s call within 24 hours on a telephone number nominated by him.
The parties shall each provide to the other prompt notice of any change to their residential address and contact telephone number.
The father shall keep the mother informed, which notice is to be given in writing, of the identity of any person with whom he resides.
The mother shall keep the father informed, which shall be in writing, of the following:
(a) changes to where the child attends school;
(b) any accident or illness which results in the child’s hospitalisation;
(c)the identity of any person with whom she and the child reside. (The Court notes that the father has notice that the mother intends to reside with Mr C).
The mother shall give her written authority to any school attended by the child for the school to give the father copies of school reports and other information commonly provided to parents. The court notes this order does not bind the school.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCF 845 of 2004

MS CANNINGDALE

Applicant

And

MR CANNINGDALE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings which concern the parties’ daughter S, who for convenience I shall refer to as “the child”. The child is eight and a half years old. The child lives with her mother and has done so throughout her life. The parties separated on the first occasion shortly before the child’s second birthday. Thereafter they reconciled on a number of occasions before separating for the last time on the child’s fourth birthday. Since then the mother and father have engaged in almost constant litigation about the amount of time and circumstances under which the child would spend time with her father. Following a defended hearing on 15 June 2006 Waddy J made final parenting orders which provided a graduated regime of increasing time the father would spend with his daughter. It was common ground these arrangements had generally worked well until November 2007 when the mother stopped making the child available for contact.
After the mother suspended the father’s contact with the child there were a flurry of contravention, recovery and interim applications. Although interim orders were made which would have enabled the father to spend time with the child at a contact centre, he declined to take advantage of this opportunity and it was only in September 2008 when orders were made by consent for the father’s sister to supervise his time with the child that contact between the father and child resumed.
On the second day of the hearing, that is in July 2009, the parties and Independent Children’s Lawyer agreed it was unnecessary for supervision to continue. Because of the parties’ poor relationship and so as to protect the child from exposure to aggressive behaviour, particularly by her father towards her mother, changeover was to take place at a contact centre. Since then, the father has spent time with the child each alternate Sunday from 9.30 am to 4.30 pm. It is generally accepted the child has enjoyed this time with her father and that unsupervised contact should continue. This approach evidenced a substantially different approach taken by the mother at the end of the proceedings compared to her stance when they commenced. The mother stopped contact because during an overnight visit with her father it was reported back to her the child had seen her father either scantily clad or possibly naked. Such was the level of distrust between the parties it took the father some time to agree it was possible the child had seen him walk towards the bathroom with a towel wrapped around his waist. Also having received this explanation from the father, for the mother to accept there was a benign explanation for the remarks attributed to the child. During the course of the hearing, the mother properly abandoned her early contention that the Court would be satisfied the father represented an unacceptable risk to the child of exposure to immodest behaviour. In any event at the end of the hearing it was agreed that the father would have unsupervised time with the child in the future. As well as an issue about whether the mother should have sole parental responsibility, the central issues thus became the duration and change over arrangements for the father to spend time with the child.
As a reading of the transcript would demonstrate it would be an understatement to say that during the hearing the father had behaved on a number of occasions in verbally aggressive even abusive behaviour. At the final hearing, he explained the Court would understand he had been sorely provoked by the cessation of his time with the child and his frustration that, having secured orders in his favour in mid 2006, it was again necessary for him to establish that it was in the child’s interest to have an ongoing relationship with him. While I had no difficulty understanding the father’s frustration his courtroom behaviour and aggression directed to two Court experts, corroborated in a real way the mother’s evidence that with her he was variously abusive, uncooperative and at times intimidating.

Short history

The father was born in 1965.
The mother was born in 1974.
The parties’ relationship commenced in 1997. From the commencement of their relationship until they married the parties lived together on and off for various periods.
In June 2001 S was born. Although it is not entirely clear, as I understand it, following the child’s birth the parties either cohabitated, or the father was a consistent presence at the mother’s home.
In 2003, the father was convicted of assaulting the mother in relation to which he was sentenced to six months jail. While the father was in jail, the mother visited him often and took the child to see him.
Following the father’s release from jail, in November 2003 the parties married. Thereafter the parties cohabitated until about the middle of January 2004 when they again separated.
After the parties separated uninvited the father visited the mother’s home almost daily. On those occasions he saw the child.
On 24 September 2004 the mother and child moved to her parent’s home in the central coast area where they have lived ever since. At the same time the mother filed an application for parenting orders, which in general terms sought orders that the child lives with her and for the father to have defined contact.
Interim orders were made by consent on 13 December 2004 which provided for the child to live with the mother and the father to have contact each Saturday at his mother’s home north-west of Newcastle, which was where the father then lived. This contact was supervised by the mother. In January 2005 the father moved to a motel at L. The mother continued to supervise the father’s time with the child at L; however, on 29 June 2005 she filed a further application to vary the interim orders because in her view, the supervised visits at the motel were not working.
On 24 August 2005 further interim orders were made. These provided the father spend time with the child each Saturday between 9.30 am and 2.30 pm at his mother’s home, supervised by her. These orders were varied on 21 September 2005 with the father being restrained from being at his mother’s home when the mother delivered and collected the child.
These orders were further varied on 14 December 2005 with changeover to thereafter take place at the R Contact Centre.
On 14 June 2006 final parenting orders were made as follows:
THE COURT ORDERED:
1.All previous parenting orders are discharged.
2.The child [S] born […] June 2001, shall live with the mother.
3.Both parents are to share the responsibility for the long term care welfare and advancement of the child.
4.Each parent is to be responsible for the day to day care welfare and development of the child, whilst the child is in that parent’s care.
CONTACT
5.The child is to have contact with the father as agreed between the parties and failing such agreement as follows:-
A. GRADUATED CONTACT 2006:
5.1Commencing 16 June 2006 until 7 September 2006:
5.1.1On each Saturday from 8.30 am to 4.30 pm.
5.2Commencing Friday 8 September until 1 December 2006:
5.2.1From preschool on each Friday at or after 3.00 pm until 4.30 pm on Saturday.
5.3From 8 December 2006:
5.3.1From after preschool Friday 8 December to 11.00 am Sunday 10 December;
5.3.2From 3.00 pm on Friday 15 December to Sunday 17 December, similarly;
5.3.3From 8.30 am Saturday 23 December to 4.30 pm Saturday 24 December.
B. GRADUATED CONTACT 2007
5.4From 5 January 2007
5.4.1From pre-school Friday at or after 3.00 pm or from 3.00 pm Friday until 5.30 pm Saturday each weekend commencing 5, 12, 19 and 26 January (with the option for the mother on 2 weeks notice to the father to transfer any one such weekend to any other mid week period of equal time of three days and two nights to allow the mother to have a longer or further holiday with the child).
5.5From 9 February to 15 March 2007:
5.5.1From after school Friday until 5.30 pm Saturday each weekend.
5.6From Friday 16 March 2007:
5.6.1From after school Friday 16 March until 5.30 pm Sunday 18 March and on alternate weekends thereafter.
5.7From Term II 2007:
5.7.1Commencing on the first weekend of each term, on each alternate weekend from after school Friday until 5.30 pm Sunday.
C. CONTACT FROM 2008
5.8From the commencement of school in 2008 and thereafter:
5.8.1Commencing on the first weekend of each term, and on each alternate weekend thereafter, from after school Friday until the commencement of school on Monday, or if Monday be a pupil-free day, the commencement of school on Tuesday.
6.School holiday contact shall be as agreed and failing agreement as follows:-
6.1In the Easter school holidays in 2007, for a period of five days at the end of the holidays;
6.2In the June/July holidays 2007, and all school holidays thereafter, following term I, II and III, for one half of such holidays as agreed, and failing agreement the last half in 2007 and odd years thereafter and the first half in 2008 and even years thereafter.
7.Christmas school holidays shall be as agreed and failing agreement as follows, subject to Order 8 below:
7.1In 2007-2008, being the first two weeks of the holidays and one further week as agreed in January, and failing agreement, the last week of the holidays to fall in January 2008;
7.2In 2008-2009, and all Christmas holidays thereafter, for one half of such holidays, being the first half in 2008-2009 and all alternate Christmas holidays and the second half in 2009-2010 and all alternate Christmas holidays thereafter.
8.Whichever parent the child is living with or having contact with for the period during which Christmas Day falls, shall have their time with the child suspended from 5.00 pm Christmas Day until 5.00 pm Boxing Day during which times the child shall contact with the other parent.
9.If the child is not otherwise to be with the mother on Mother’s Day, then contact is to be suspended on that day from 10.00 am to 6.30 pm.
10.If the child is not otherwise to be with the father on Father’s Day, then the father is to have contact on this day from 10.00 am to 6.30 pm.
11.The parties are to agree on reasonable arrangements for the child to see:
(i)Each parent on the child’s birthday, […] June, to the intent that the child shall spend 4 hours with the parent with whom the child is not sleeping that night.
(ii)Each parent on that parent’s birthday, to the intent that if the child is not otherwise to see the parent that day, she will spend 4 hours with the parent whose birthday occurs that day.
12.Changeovers are to be effected with minimal disruption to the child’s happiness and so as not to expose her to conflict, aggravation or animosity either parent might otherwise display to the other or in front of the child and to that extent shall be:
(i)As agreed; and failing agreement
(ii)If specified to commence or conclude at a pre-school or school then from and to such pre-school or school in the absence of the other parent from such place;
(iii)If not to commence or conclude at a pre-school or school then:
(a)Until 30 September 2006 at [R] Contact Centre;
(b)If [R] Contact Centre is not available, then at [T] Police Station, [T] and then preferably by at least one of the agents of the parties, to the intent the parties do not meet at the hand-over, for [the child’s] sake.
(c)From 11 October 2006 at [T] Police Station as in (b) above.
TELEPHONE CONTACT FOR BOTH PARENTS AND FOR THE CHILD
13.The father is to have reasonable telephone contact with the child as agreed, and failing agreement otherwise, on Tuesday and Thursday of each week for up to half an hour between the hours of 6.30 pm and 7.30 pm.
14.If the child is with the father for more than a week, then the mother is to have telephone contact with the child as agreed and failing agreement then on Tuesday and Thursday of each such week for up to half an hour between the hours of 6.30 pm and 7.30 pm.
15.Each party is to recognize and facilitate the child’s reasonable and genuine wish if the child seeks to telephone the other parent at other reasonable times.
SPECIFIC ISSUES
16.Neither party is to denigrate the other party or members of the other party’s family or household in the presence of the child, or permit any person to do so in the presence of the child.
17.Each of the mother and the father is to do all acts and things necessary to cause any school attended by the child to provide to the other at that parent’s request all reports and notices concerning the child’s school activities and to allow the father to attend school activities normally attended by parents.
18.Each of the mother and the father is to do all acts and things necessary to cause any medical practitioner, hospital or ambulance service consulted by the child to provide to the other at that party’s request, all records relating to such consultation.
19.During the time that the child is in that parent’s care, each parent is to immediately inform the other parent by telephone in the event of:
(i)An accident involving the child requiring the child to be given medical attention;
(ii)Any illness that requires or will require medical attention;
(iii)Any incident involving the child in which police, emergency or ambulance services are called.

On 5 March 2007 the parties entered into consent property settlement orders the effect of which was that the father was required to pay the mother $10,000 by way of property adjustment with the parties to otherwise retain assets in their possession and control. The father has not paid the amount due to the mother.
Subject to the mother’s failure to comply with arrangement for Christmas Day 2006 contact and the parties’ misunderstanding about contact during the January 2007 school holidays, the mother made the child available to spend time with the father in accordance with the orders. There were a number of occasions when the father requested the mother to collect the child earlier than provided for in the orders and one where he failed to collect her from school.
Following a weekend with her father at the end of November 2007 the child returned to the mother “not her usual bouncy, bubbly self.” Although there was some uncertainty about the words used by the child as compared to those attributed to her by her cousin, it was following this weekend that the child raised concern about her father being scantily clad; that is after showering walking through the house with “just .. a towel on.” She also spoke to the mother about her father smoking “funny smelling cigarettes” then acting “really weird.” It was at about the same time that the mother had particular difficulty encouraging the child to speak with the father by telephone or to go to school on days when he was due to collect her in the afternoons.
At this same time the mother, without the father’s prior knowledge, withdrew the child from school and moved in with her new partner. Because the mother was concerned about the father’s reaction, she did not want him to know she had re-partnered.
On 19 December 2007 the mother’s solicitor wrote to the father in the following terms:
We understand that our client would consider a settlement of all matters on a strictly without prejudice basis that in consideration for her not pursuing the debt which you owe her for the property proceedings that you cease contact with [the child].
The same day the mother commenced these proceedings, albeit as an Application in a Case.
Two days later the father filed an application for a recovery order.
The parties’ applications came before the Court on 29 January 2008. That day the Court made the following orders and notations:
IT IS ORDERED:
1.The proceedings are adjourned to the Judicial Registrar’s Duty List at 10.00 am on 10 March 2008.
2.The Independent Children’s Lawyer forward again any Questionnaire to the father.
3.Leave is granted to the extent necessary to the Independent Children’s Lawyer to issue such subpoenas as he may wish.
4.Any further documents on which either party or the Independent Children’s Lawyer seeks to rely on are to be filed and served not later than 3 March 2008.
IT IS NOTED
5.The father left the Courtroom prior to the commencement of reasons.
On 11 March 2008 the Court made the following orders:
IT IS NOTED
1.The Court expected the father to appear at Court today for the making of orders but he has not appeared.
2.That the Court attempted to telephone the father but only engaged his voicemail.
3.That the mother alleges that the child [S] born […] June 2001 has been expressing a wish not to spend time with her father.
4.That the Independent Children’s Lawyer has spoken to the child and that the child has said to her that she does not wish to see her father.
IT IS ORDERED
5.That the parties and the child attend at the Family Court Child Dispute Section and participate in the preparation of a short family report dealing not only with the child’s wishes but also her relationship with each parent and such other matters as the Director considers appropriate.
6.That the operation of the parenting orders dated 14 June 2006 be suspended until 6.00 pm on 5 May 2008.
7.That these variation of parenting proceedings be adjourned to 10.00 am on 5 May 2008 in the Judicial Registrar’s Duty List.
On 12 March 2008, the father filed the first of a number of unsuccessful contravention applications.
On 1 April 2008, without the father’s prior knowledge, the mother withdrew the child from N Primary School and enrolled her at M Primary School.
On 7 April 2008 a Family Consultant, Ms O, prepared a short family report. For this report, the Family Consultant, inter alia, observed the child with the father.
From her observation session the Family Consultant concluded that the child: “Maintains a positive relationship with the father.” Before the Family Consultant expressed her opinion, she highlighted a limitation to the report was that it was not a comprehensive assessment and she thus considered it appropriate that greater weight should be given to a report dated 30 May 2006 which had been prepared for an earlier hearing by another Family Consultant. With these caveats in mind, the Family Consultant made the following recommendations:
It is recommended that if the Court finds that there have not been any significant changes in the child’s circumstances since orders were made on 14 June 2006, that those orders continue contingent upon:
1.The mother continuing to promote a relationship for the child with the father and complying with any Court order for the child to spend time with the father.
2.The father attending upon a psychologist for ongoing therapy treatment and the father complying with any direction from either his psychologist or treating medical practitioner (including any prescribed medication).
It is further recommended that all changeovers of the child occur directly to and from the school.
As to recommendation sub-paragraph 2 above referred to, this recommendation was made to address the Family Consultant’s concern that the father had again stopped prescribed anti-depressant medication as well as stopped attendance upon a psychologist.
On 7 May 2008 a Judicial Registrar made the following orders and notations:
IT IS ORDERED:
1.That the father’s application that the mother be dealt with for contravention of orders affecting a child filed 12 March 2008 is dismissed.
IT IS NOTED:
2.That [the father] left the Courtroom prior to the conclusion of the proceedings.
IT IS FURTHER ORDERED:
3.That so much of the parenting orders made on 14 June 2006 as provided for time to be spent between the father and the child [S] born […] June 2001 and for the father to communicate with child be suspended until further order.
4.That within 14 days from today’s date the parents do all things and sign all documents necessary to meet the requirements for supervised time of the [R Contact Centre] and that subject to the requirements of that Centre and the availability of that Centre there be time spent between the father and the child, day only, once a week at that Centre.
5.That pending commencement of any supervised time which may be delayed as a result of any waiting period at the [R] Centre or as a substitute for that time, provided the parties meet all of the requirements of Ms [W] and subject to her availability there shall be such supervised time between the father and the child as the parties and Ms [W] can agree upon and if available up to one occasion a week, day only.
IT IS NOTED:
6.The Independent Children's Lawyer will explore the appointment of an expert to report on the parties and the child for the purposes of the final proceedings.
7.The father advised the Court today that he would not take part in time with the child that had to be supervised and would not co-operate in any further expert’s report.
AND IT IS FURTHER ORDERED:
8.Leave to either party and to the Independent Children's Lawyer to restore the matter to the list in relation to any application to fix the proceedings for an undefended hearing or otherwise in relation to the matter.
9.That the application for a recovery order filed 24 January 2007 and the mother’s application for interim orders filed 21 December 2007 are otherwise dismissed.
10.The proceedings in relation to the appointment of a single expert and any further directions in relation to the final hearing are adjourned to the Judicial Registrar’s Duty List at 10:00 am on 4 June 2008.
11.That a sealed copy of these orders be forwarded to the father at his address for service by the Independent Children's Lawyer within 7 days from today’s date.
On the application of the former Independent Children’s Lawyer he was given leave to withdraw on 21 July 2008. The Independent Children’s Lawyer who appeared throughout the balance of the proceedings was then appointed.
On 12 September 2008 further interim orders were made the effect of which was to enable the father to spend supervised time with the child under the aegis of his sister. Although the orders anticipated that the father would spend time with the child weekly, because his sister was only able to supervise fortnightly, the frequency of contact was accordingly reduced. During this period the father’s mother became increasingly unwell and he generally spent time with the child at his mother’s home. It was common ground that the child has a happy relationship with the father’s sister and her paternal grandmother. The mother and father’s sister worked cooperatively so that changeovers were smooth and reasonable requests to adjust the arrangements were readily accepted.
The father was not happy with the mother’s relationship with his sister and mother. For reasons best known to the father, but which were never clear to me, on 20 December 2008 he contacted the mother and his sister and in effect told them that the interim orders had been suspended. These phone calls were made immediately prior to changeover, with the mother receiving her telephone call while waiting with the child at the changeover point. The orders had not been suspended and the father’s actions ill judged and churlish.
On 17 January 2009 the child spent time with the father in accordance with the interim orders.
On 25 January 2009 the father’s sister informed the mother she was no longer able to supervise the child’s time with the father. This information was confirmed by the Independent Children’s Lawyer. Contact between the father and the child stopped pending further discussions.
On 8 April 2009 the father approached the mother and child outside the mother’s workplace. The child ran into the shop where the mother was employed and hid. She felt anxious that her father might take and not return her.
On 30 April 2009, via the Independent Children’s Lawyer, the mother was asked to facilitate contact between the father and child on the forthcoming Saturday. Through her solicitors, the mother declined and indicated she had a prior arrangement but would contact the father’s sister and organise another time. The same day the father approached the mother at her workplace and asked to see the child on the forthcoming Saturday. When the mother declined the father yelled at her: “You’ll be sorry bitch”.
On 1 May 2009 without the father’s prior knowledge the mother transferred the child to C Primary School. The child has settled in well at this school and her overall school performance has improved considerably.
On 5 May 2009, the mother spoke with the father’s sister and arranged for the resumption of fortnightly Saturday visits to commence on 9 May 2009. Notwithstanding that the father was apparently keen for it to occur this visit was cancelled by the father’s sister. It appears likely the father’s sister felt under pressure by him from which she needed to withdraw.
On 1 July 2009 at the father’s behest[1], the mother agreed that she would not contact his mother or sister. The unfortunate consequence of this request and agreement was that a constructive line of communication between the child and paternal relatives was lost as was the child’s opportunity for easy contact with her paternal relatives being facilitated by the mother. The father’s actions were not child focussed.
[1] Exhibit ‘C’
On 1 July 2009 I released to the parties the report of the single expert Ms I dated 2 December 2008. Ms I recommended as follows:
It is respectfully recommended that: There is no contact between the father and [the child], at least until his mental state is assessed by a psychiatrist (preferably a male). Hopefully this can occur before the Court hearing at the end of January.
It is recommended that this report is not released to the parents prior to the Court hearing because of concerns relating to the father’s mental state and the possible effects of this report on him.
After two days of hearing, on 2 July 2009 the parties entered into interim orders. These orders are set out below:
IT IS ORDERED PENDING FURTHER ORDER:
1.That the child [S] born […] June 2001 shall live with the Mother.
2.Commencing Sunday 12 July 2009 the child shall spend time with the Father each alternate Sunday from 9.30 am to 4.30 pm.
3.That the time the child spends with the Father is to be implemented by the Mother delivering and collecting the child to/from [R] Contact Centre at [R] and the Father collecting/delivering the child to/from the same location.
4.That within 24 hours of the date of these orders each party is to contact the [R] Contact Centre and comply with all reasonable requests of the Manager of [R] Contact Centre in relation to implementing the time the child is to spend with the Father as set out above.
5.That the time the child spends with the father is to be unsupervised.
6.I give the parties and the Independent Children’s Lawyer liberty to apply to relist the matter on 7 days notice.
7.That this part-heard matter is listed for further hearing before me at 10.00 am on 6 October 2009.
Since then the child has spent time with the father in accordance with these orders.
So as to understand the child’s views about the resumption of contact with her father and how she felt about their continuation, I ordered an updated family report from Ms O.[2] Consistent with her oral testimony, Ms O made the following recommendations:
25.[The child] has been the subject and focus of the high parental conflict for the vast majority of her young life. It would appear that [the child] is now experiencing intense difficulty associated with having been so heavily immersed in the parental conflict.
26.It would appear that the strategy which [the child] has devised to manage the parental conflict has been to attempt to compartmentalise her relationship with each parent. When she is not able to do this (such as when she is asked for her specific views) her response is to mirror the mother’s views.
27.Whilst [the child’s] views are very relevant and provide some telling insights into her experience of the parents, this is a complex matter. As such her views should not be considered in isolation but should be a component of a broader and more comprehensive assessment which takes into account the full range of family circumstances.
[2] Exhibit ‘N’

The general law in parenting applications

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement                 necessary:
(i)to explore the full extent of that culture, consistent           with the child’s age and developmental level and the            child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.

Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)         days that fall on weekends and holidays; and
(ii)        days that do not fall on weekends or holidays; and
(2)The time the child spends with the parent allows the parent to be involved in:
(i)         the child’s daily routine; and
(ii)        occasions and events that are of particular significance to the             child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against ordering that the parents have equal shared parental responsibility s 65DAA considerations do not apply.

The father’s circumstances

On the weekend prior to 26 February 2010 the father rented a room in a house at P. This home is owned and occupied by Mr D. The home is well established and only the father and Mr D live there. Should the child spend overnight time with the father he will be able to use another bedroom for her to sleep in. From the time the proceedings commenced until February 2010 the father refused to reveal his home address. Through the child it became apparent that for a time he lived in Sydney. The father explained that unless he was largely successful in at least establishing overnight visits with the child, he would probably reside in Sydney. More than once I pointed out to the father that it would be difficult for him to persuade the Court to make orders for a young child to stay overnight unless the Court had reasonably good information about the circumstances in which the child would find him or herself. As I understood it the father took his more secretive approach so as to make it as difficult as possible for the mother to enforce his compliance with their property settlement orders.
In any event, the father now has adequate accommodation for himself and the child when she is with him; including on an overnight basis and Mr D gave evidence by telephone. He was an impressive witness. Mr D is a marine mechanic with grown children. He has a girlfriend who lives in Brisbane whom he regularly visits on weekends. Mr D is content for the father to bring the child to his home. Mr D impressed as a sensible and hard working person who has successfully reared his own children. Although the child has never met him, it is likely he has the capacity to make her comfortable in his company and would probably contribute to the child’s enjoyment of time spent with her father.
Presently, the father is in receipt of a disability support benefit. Prior to a serious workplace accident in 2001 he was generally in fulltime employment. The father provided a portfolio of certificates and work references which attested to his capacity and willingness to work hard in the types of industries there referred to.
The father’s behaviour in this hearing raised questions about his capacity and concern about how, if she was exposed to it, the child would cope emotionally and psychologically. So as to address these issues the father was directed to attend a psychiatrist, Dr T and the parties and child to attend a psychologist, Ms I. Before proceeding further, it is appropriate to record that following the workplace incident in November 2001 he was diagnosed by Dr MC, who was a Consultant Psychiatrist, with Post Traumatic Stress Disorder. According to Dr MC, in addition to Post Traumatic Stress Disorder the father had: “A significant depressive syndrome which by September 2004 had largely settled as a consequence of anti-depressant medication and psychotherapeutic support.” In Dr MC’s opinion the father would require long term support without which there was a strong likelihood of a resurgence of his symptoms.
The father struggled with the notion that he required ongoing psychotherapy and/or anti-depressant medication. In a report dated 11 October 2004[3] Hunter Valley Mental Health Services expressed the opinion that the father had been diagnosed as having: “An adjustment disorder characterised by a depressed mood, feelings of hopelessness and helplessness and at times high levels of distress …. on the background of [the father] having a pre-existing anti-social personality disorder. This anti-social personality disorder is characterised by poor impulse control and an inability to manage the individual’s emotional states.” As I understood his position, it was the father’s case that the first time he was made aware that someone had diagnosed he had an anti-social personality disorder was during this hearing. It was not clear to me whether that diagnosis was made by the nurse who wrote the report on 11 October 2004 or, as would be more likely, one of the Psychiatric Registrars the father had attended through Hunter Valley Mental Health Services.
[3] Exhibit ‘H’
I received into evidence a large volume of material from Ms CN who is a psychologist, medical records from G Hospital, medical records from Dr MC and records from the Hunter Valley Mental Health Service. These documents were available to the Court experts. Ms CN commented that the father:
Has been very committed to his counselling sessions and has consistently worked hard, both inside and out of sessions, to meet mutually agreed and challenging goals. He has invariably demonstrated about getting back on track with his life but unfortunately … problems have interfered with his being successful in his goals. In other words, he has often claimed to be doing well and then he would encounter challenges that he had difficulty coping with, and these would bring him down. … The father has been in receipt of a variety of service provision that has been both interrupted and inconsistently provided. Stable and consistent psychological support would be required to optimally improve and maintain [the father’s] psychological state.
Based on her discussions with the father and the results of a personality assessment inventory and with an appreciation, that in 2006 he had very limited recent opportunity to undertake his role as father with the child, she opined that: “He presents as having good parenting attitudes and …. to being satisfied with his role as [the child’s] father.”
Turning then to the Court experts. Ms I, who was appointed the Court’s expert, conducted her investigations first. She briefly conferred with the father on 24 November 2008. The appointments were originally set for 14 November 2008. Because she was required in court, the first set of appointments were cancelled and rescheduled for 12 November 2008. The mother was unable to attend on 12 November 2008 and so the appointments were rescheduled. Unfortunately, the father did not receive notification of the final rescheduling and attended on 12 November at the appointed time. When Ms I was contacted about the mix up she spoke with the father. He was angry and abusive towards her and, although he was aware that Ms I said she would come to the court premises for, albeit a delayed interview, he failed to remain. When the interview proceeded on 24 November 2008 the father was rude and belligerent and, to Ms I, “it was apparent that [the father’s] anger and paranoia was so extreme that undertaking a normal interview was impossible, and may potentially be quite dangerous. I then decided to cancel the afternoon interview with [the father] and [the child].” The events of that day are well set out in Ms I’s report. In addition to her brief dealings with the father, Ms I reviewed a considerable volume of the father’s medical and other records. She observed the father had been diagnosed previously with anti-social personality disorder, depression and Post Traumatic Stress Disorder. When she compared his presentation towards her with the description of him and accounts of others referred to in the subpoenaed material and affidavits, Ms I concluded: “His presentation seems to have become much worse lately, in that his episodic rages; his persecutory thinking; and his agitation now appear to be chronic and unremitting.”
Ms I noted that the father’s treating psychiatrist was of the opinion his Post Traumatic Stress Disorder had resolved, which she explained was the normal course. It was her opinion that the father met the criteria of an anti-social personality disorder but that when she saw him his conduct was consistent with a diagnosis of “paranoid personality disorder”. It was Ms I’s recommendation that the father be assessed by a court appointed psychiatrist.
Dr T, who is a Consultant Psychiatrist, was appointed to assess the father’s capacity and mental health. He interviewed the father on 11 February 2009. By way of background, he was provided with reports and information from a wide variety of sources. Dr T opined:
[The father] was, however, so belligerent and so uncooperative that I was unable to form an accurate opinion about his mental state. Specifically, I was unable to confirm that he is living a normal life without evidence of psychopathology. As noted above, the factual information must be obtained and he will need to be advised by his legal representative that it is in his interest to cooperate with the independent process.
While I was unable to include or exclude a psychiatric disorder, my global clinical impression of him was that he was not depressed and that he was not psychotic. He did not exhibit disorganised thinking but his belief about the malevolent motives of others is so strong that I wondered whether he had a Paranoid State.
A Paranoid State or Paranoid Disorder is on the spectrum of psychosis in which an individual has a delusional belief system which usually involves the motives of others. However, the individual can function reasonably well unless issues involved in their paranoid state are highlighted. An example might be an individual who believes that his neighbours wish him harm but is otherwise able to function in his job and other activities.
While I was unable to include or exclude a psychiatric disorder, it is my view that he has clear evidence of a Personality disorder. Personality dysfunction can and does provide an alternative explanation for symptoms suggestive of mental illness or emotional distress. Personality dysfunction can also contribute to ongoing problems such as non-compliance to treatment, ongoing interpersonal difficulties, and a failure to recover despite psychiatric treatment.
[The father] appears to fulfil some of the criteria for the so called “Cluster B” personality traits from the DSM-IV characterised by dramatic, emotional, aggressive, stubborn, impulsive, or erratic behaviours of sufficient severity to affect a person’s life and relationships. … While having a personality disorder diagnosed may be perceived to be an insult, the reality is that such a diagnosis can point to appropriate counselling resulting in people mobilising more mature mechanisms and avoiding interpersonal conflicts in the future. The person must review his or her contribution to interpersonal difficulties.
It was of interest to Dr T that the father had been able to maintain a relationship with his 21 year old son by a former partner. Also that during an observation session with a Family Consultant, although it was plain the father had been angry with the Family Consultant:
[He] was pleasant to his daughter. It is sometimes said that Cluster B individuals ‘love hard and fight hard’. His ability to behave appropriately to his daughter and not to [the family consultant] is further evidence of personality dysfunction rather than pervasive mental illness.
Unfortunately for the father, for whatever reason, but most likely his frustration at again needing to establish a proper basis for him having an ongoing relationship with his daughter, he withheld from the Court experts measured behaviour which, in the latter part of the proceedings, was more pervasive than his angry and frustrated behaviour evident when the proceedings commenced. So that it is clear, the point I am making is that the father showed that he was capable of being cooperative, appropriately responsive, able to demonstrate humour and willing to contemplate circumstances from the child’s perspective. His questioning of Ms I and Ms O were within appropriate boundaries. While his questioning of the mother was somewhat badgering, when regard is had to the gravity of the matters at issue, it could not be said that the father was out of line.
The opinions expressed by Ms CN generally accord with my views of the gravamen of the evidence produced by persons and institutions unrelated to these proceedings. The material from those sources showed the father’s mental health issues assessed in a different context than that within which Ms I was required to undertake her task and Dr T his. There is however, within this material and the various experts retained for these proceedings, a recurrent theme. That is that the father benefits from ongoing therapeutic assistance and when prescribed, mood stabling medication. From time to time he finds life’s stressors beyond him which can see him descend into depression or when provoked with aggression.
The net effect of the evidence about the father’s mental health is that it is unlikely the father has a frank mental illness and likely he has a personality disorder which, depending upon his circumstances, is reactive to high levels of stress. When under high levels of stress the father may react with aggression, paranoia and/or become depressed. It is beyond dispute that the father has previously suffered Post Traumatic Stress Disorder. This may make him more vulnerable to stress. It is beyond dispute the father has found these proceedings to be highly stressful. No criticism could be made of him in this regard.
The development of Post Traumatic Stress Disorder and depression have been a real blow to the father Not only has his capacity for work been compromised, so has his capacity to maintain a settled and comfortable standard of living. The sad reality is that the father is now a person with few assets or his own accommodation. He has a car and, as far as the evidence disclosed, a selection of personal items. His financial circumstances are sufficiently tight that to his medical advisors, the father indicated one of the reasons he earlier stopped taking prescribed anti-depressant medication was he was unable to afford it. Nonetheless, the father said that if he was able to have the child with him, for example, during school holidays, rather than live in shared accommodation he would rent an appropriate two bedroom dwelling for he and the child. As I understood the father’s evidence he would probably look to rent premises somewhere between P and K in regional New South Wales (which is where his mother resides).
During the hearing, somewhat to the father’s irritation, he was questioned about his criminal convictions. The father managed cross examination on this topic poorly and, given the significance of the matters at issue, with inappropriate sarcasm.
The father’s criminal convictions are as follows:
·In 1982 he was convicted of malicious injury. The father was released on probation until he turned 18 to be of good behaviour; seek to obtain and remain employed and restrain from using alcohol. He was ordered to pay approximately $500 compensation in lieu of 20 days detention.
·In 1984, he was convicted of smoking Indian Hemp and possessing [drug] implements in relation to which he received a combined penalty of $300 or 12 days imprisonment.
·In 1986, he was convicted of possession of Indian Hemp, possession of implements and self-administer prohibited drug. Combined the father was fined $600 or 12 days imprisonment. His sentence was suspended upon him entering into a two year Good Behaviour Bond.
·In 1989 the father was convicted of two counts of assault in relation to which he was sentenced to a rising of the court and entered into a two year good behaviour Bond.
·In 1989 the father was convicted of possessing a prohibited drug, possession of implements and self administering a prohibited drug. Combined the father was fined $500.
·In 1990 the father was convicted of offensive language for which he was fined $150.
·In 1990 the father was convicted of behaving in an offensive manner for which he was fined $300.
·In 1991 the father was convicted of mid range PCA and unlicensed driving. Combined he was fined $650 with an additional $90 in court costs. He was disqualified from driving for nine months.
·In 1991 the father was convicted of assault for which he was fined $600 plus $125 court and witness expenses.
·In 1995 the father was convicted of mid range PCA and being an unlicensed driver. Combined he was fined $900 plus $50 in court costs. He was disqualified from driving for nine months.
·In 1999 the father was convicted of using offensive language in/near public place/school for which he was fined $500 plus $25 court costs.
·In 2003, the father was convicted of common assault for which he received a s 9 Bond for three years subject to supervision of the New South Wales Probation Service.
·In 2003 the father was convicted of assault occasioning actual bodily harm and contravening an Apprehended Violence Order. In relation to both he was sentenced to a term of six months imprisonment to be served concurrently. The victim of this assault was the mother.
·In 2005 the father was convicted of contravening an Apprehended Domestic Violence Order to which he was sentenced to the rising of the Court.
·In 2009 the father was convicted of common assault for which he was fined $600 plus $77 Court costs. Although the father claimed he was the victim of assault and that he had lodged an appeal against his conviction, cross-examination demonstrated to my satisfaction that the father, while generally aggrieved about his conviction, has not yet lodged an appeal.

An order that the parents have equal shared parental responsibility is likely to result in further conflict between them and potentially set the scene for further litigation. Importantly, it is likely that decisions which the child’s best interests require are taken would be delayed by dispute and ultimately her best interests held hostage to the parents’ poor relationship and chronic inability to communicate effectively. I appreciate the father will be disappointed by such an outcome. However, so as to ensure he has important information about the child at his disposal, the mother will be required to keep him informed of key changes to the child’s circumstances. This would involve changes to the child’s residence, school and major medical issues, such as those which require the child’s hospitalisation.

Conclusion

This has been a most difficult hearing. As I stated at the beginning of these reasons, the parties and Independent Children’s Lawyer are agreed that the child should continue to spend unsupervised time with her father. It is the mother’s case that the father should not spend overnight time with the child for another 18 months and thereafter further increases. The father seeks to have the orders made by Waddy J reinstated. The Independent Children’s Lawyer proposed the introduction of overnight time forthwith and thereafter gradual increases as set out in the Independent Children’s Lawyer’s proposed minute of order.
Ms I’s evidence was that the child should not spend time with the father whereas Ms O expressed the opinion, subject to the caveats to which I have earlier made reference, that the child and father should spend time together. I have already said that I am satisfied the child enjoys spending time with her father. Her enjoyment of his company, however, is coloured by her anxiety the father may abuse her mother. She is also troubled by her belief that her mother is opposed to her spending time with the father and worries about her when she is with him. Although the child remarked to Ms O that she would be content if she did not see her father again, these were immature remarks. At this stage of her development the child does not have the maturity to appreciate how she would feel if her relationship with her father ended. Almost certainly she would come to miss him dearly and her sense of identity would be compromised. The totality of the evidence does not support the approach which was recommended by Ms I.
With his limited financial circumstances, it has been hard for the father to make day only visits with the child always interesting. I accept his premise that if he had more time with her he could devise more interesting activities and be involved in the sort of nurturing activities children expect of parents and which to a considerable extent, cement the parent and child relationship. An aspect which troubles me about how to achieve such an outcome is related to the father’s circumstances. In particular his stability of accommodation and ability to manage his behaviour; that is to not expose the child to his paranoid or aggressive outbursts. The father has been acutely aware that the mother, Independent Children’s Lawyer and the Court have been concerned about his mental health and personal stability. If he was ever in any doubt that these were issues with which he needed to grapple, this was put beyond doubt when he was required to attend upon Dr T. The father did not present evidence that he is currently in a settled relationship with an appropriate health professional. I do not know if he takes anti-depressant medication. Although I do not have the reasons delivered by Waddy J, I infer from Ms L’s report that in 2006 the father had a good relationship with Ms CN and was taking anti-depressant medication. I am not sufficiently confident that the father will reliably manage the stressors which can be anticipated in a way which does not from time to time result in him becoming depressed, stressed or paranoid. When the father is stressed, depressed or paranoid, his impulse control appears to be adversely affected. This in turn compromises his parenting ability. It is likely to also compromise his ability to maintain stable accommodation where he is resident in another person’s home. These factors persuade me that it is appropriate to increase the child’s time with the father gradually and for the periods of time she is with him, to be contained to periods which she could reasonably expect to manage even if he is struggling somewhat.
Forthwith the child will commence overnight time with her father. Until the weekend prior to the commencement of Term 3 2010 school holidays the child’s time with her father shall continue to commence at 9.30 am on Saturday and will extend to 2.00 pm Sunday. Thereafter and until the commencement of the Christmas 2010 school holidays weekends will commence at 5.00 pm Friday and continue until 2.00 pm Sunday. This pattern of alternate weekends will continue during school holidays until the commencement of the 2011 school year. During the 2010/2011 Christmas school holidays each alternate weekend the child spends with the father will be further extended so that it commences at 5.00 pm Friday and finishes at 5.00 pm on Monday.
Commencing Term 1 in 2011 and thereafter, during school term each alternate weekend the child will spend with the father shall commence at 5.00 pm Friday and finish at 5.00 pm Sunday. From the end of Term 1 in 2011 during each of the Term 1, Term 2 and Term 3 school holidays the child shall spend four consecutive nights with the father. Unless the parents agree differently, the child’s time with the father shall commence at 9.30 am on the first Saturday of each school holiday period and finish at 5.00 pm the following Thursday. Commencing from Christmas Day 2011 during the Christmas school holidays the child shall spend two four night blocks each Christmas holidays with the father. Unless the parties agree otherwise these will commence at 2.00 pm Christmas Day and finish at 2.00 pm on the 30 December annually. The second period shall commence at 9.30 am on the second Saturday in January and finish at 5.00 pm (five days four nights) thereafter.
It will be important for the child’s comfort with these arrangements that she and the mother know where and with whom the father is living. He will be required to keep the mother informed of any change in residence, as well as the identity of the person or persons with whom he resides. So as to put compliance with this issue beyond doubt, the father will be required to give this information to the mother in writing, which would include by SMS telephone message.
I infer that the child would like to spend Mother’s Day with her mother and Father’s Day with her father. In the event the effect of the orders discussed above would prevent this, the child’s arrangements will be reordered so as to make it happen. Because of the parties’ poor communication, rather than provide for time in lieu no further adjustment to the orders will be made. Potentially this means the father may spend time with the child three weekends in a row or he may not see her for three consecutive weekends. In the long term these arrangements are unlikely to result in a diminution in the amount of time the father spends with the child nor affect their relationship. Provision is also made for the child to spend time with the father on special occasions, specifically Christmas Day and her birthday. The orders are structured so as to have the child spend time on these occasions with each of her parents.
The father will be able to speak with the child by telephone at a telephone number nominated by the mother weekly. This had been occurring during the latter part of 2009 and by all accounts was working well. For reasons not revealed in the evidence this was interrupted in the period prior to the hearing. Having regard to the child’s age it would seem preferable that the telephone conversations occur before she takes her evening meal mid week. The time suggested by the Independent Children’s Lawyer is suitable. If for some reason the child is unavailable to take the father’s call, the mother will be required to ensure the child returns the father’s call at a number provided by him the following day.
So as to minimise contact between the parties at changeover as far as possible changeover will occur at a contact centre. In accordance with my earlier findings, as soon as Relationships Australia at G is able to facilitate changeover at G, this is where changeover will occur. Until then, changeover will continue at Relationships Australia Contact Centre at R. In the event the contact centres are not open, the mother shall nominate a changeover place, which for obvious reasons should be a public place, at G. This way neither party will be further inconvenienced and the risk of changeover incidents minimised.
I am conscious that the orders do not result in the child’s time with the father being at the level contended for by the Independent Children’s Lawyer. For reasons which I trust are clear, if the orders are to endure, I considered a more cautious approach to be appropriate.
For these reasons I make the orders identified at the commencement of this judgment. I am satisfied they are in the child’s best interests.

I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 20 April 2010

[2010] FamCA 285

20 April 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness