Chanel and Peters

FAMILY COURT OF AUSTRALIA

CHANEL & PETERS

[2011] FamCA 373

FAMILY LAW – CHILDREN – Living with – spending time with

APPLICANT:

Ms Chanel

RESPONDENT:

Mr Peters

INDEPENDENT CHILDREN’S LAWYER:

Ms Hawdon

FILE NUMBER:

BRC

5092

2010

DATE DELIVERED:

6 May 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

5 & 6 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gardiner of Counsel

SOLICITOR FOR THE APPLICANT:

Michael Dwyer Solicitor of Southport

COUNSEL FOR THE RESPONDENT:

Mr Davies of Counsel

SOLICITOR FOR THE RESPONDENT:

Dean Kath Kohler Solicitors of C Town

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Slade Jones of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Forrest Glen Lawyers of C Town

Orders

Declaration as to Paternity

That pursuant to S.69VA of the Family Law Act, it is declared that Mr Peters is the father of the child B Chanel born …, 1999.
The father have leave to do all things necessary to change the child’s name to B Peters.

Parental Responsibility

The Father shall have sole parental responsibility for B (born … 1999) (“the Child”) in relation to all major-term issues.

Child’s Living Arrangements

The Child shall live with the Father.
The Child shall spend time with the Mother once every month at the C Town Contact Centre (“the Centre”) for a period of no more than 2 hours.
It is a condition of the Mother’s time set out in Order 5 that on each occasion no later than 5:00pm Wednesday immediately preceding the time nominated for contact, she gives the Centre notice telephone of her intention to attend the Centre.
The Father shall contact the Centre before travelling to the Centre for the purpose of time set out in Order 5 to no later than 5:00pm Friday to confirm the Mother’s intention to attend the Centre AND IN DEFAULT of the Mother’s confirmation pursuant to Order 6 the Father need not comply with Order 5.
If the Mother, without reasonable excuse, fails to attend the Centre pursuant to Order 5 on 3 consecutive occasions the Father, having first verified the Mother’s failures with the Centre, may instruct the Centre to cease all contact.
The Mother and the Father shall share equally the costs of the Centre.
That the Child attends the Kid’s Coping Program.
That for the term of the appointment of the Independent Children’s Lawyer, the father will forward to the mother via the Independent Children’s Lawyer all school and medical reports for the child and thereafter the father will forward them to the mother directly.

Independent Children’s Lawyer

The Independent Children’s Lawyer is discharged, without further order, on 5 November 2011.

NOTATION:
Nothing in this Order is to be construed as to interfere in any way with the Centre’s own Rules including the parents’ conduct or the Centre’s right to terminate contact should such contact become unacceptable.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5092 of 2010

Ms Chanel

Applicant

And

Mr Peters

Respondent

REASONS FOR JUDGMENT

This is an application on the part of Ms Chanel for parenting orders in relation to a child of her relationship with the respondent, Mr Peters, namely, B. He was born in 1999. There was another child of this relationship, D, who is now some 16 years of age. I do not believe there is any application with relation to D.
The child had resided with the mother since birth until 2008 or 2009. There is some confusion there, since I’ve not had any material from the Department of Children’s Services in relation to the removal of the child from her and the placement of the child initially with the Department and subsequently released into the care of the father. He has remained in the care of the father since then and has enjoyed access, I hope, to his mother or enjoyed spending time with his mother at a contact centre in C Town. The father lives in E Town; the mother lives in F Town, and there is some travel involved in the child being taken to and from the contact centre at which he has contact with his mother in each alternate weekend for a period of two hours. I recognise, as has fallen from counsel Slade Jones, for the independent children's lawyer and, of course, Gardiner, for the mother, this may not be the most beneficial way of experiencing contact, but it’s a matter which has to be done to protect not only the child but also the person against whom some allegations may have been made, justifiably or not.
I must say at this stage that the independent children's lawyer case was unfortunately – not gravely, but affected by what I consider to be conduct inimicable through the standards required of a specialist witness.
Dr G gave a report to the Department of Children’s Services in relation to the mother’s mental health back in 2009. She sought a boon from this Court in that she wished to give evidence by way of telephone. As we understood, having rooms in C Town and being a busy professional, her coming to Brisbane to give evidence and then returning would, in all the circumstances, gravely affect not only her practice but also people who were seeking her assistance as a psychiatrist.
I’ve read the report which was put before me by way of affidavit. The report, as I said was in 2009, but I consider the report was in depth and would have been of great assistance save for the following: upon the doctor being contacted by phone – I granted her leave to give evidence by phone. It was ascertained that, in fact, she was in Brisbane, and she wasn’t in C Town, but she was in Brisbane. Upon the independent children's lawyer counsel Slade Jones quite correctly asking her about her report, she indicated she didn’t have it with her. Thereafter, as far as I’m concerned, and having listened to the witness, she gave every indication of not having any interest in presenting the report to this Court. Endeavours were made to ascertain whether in fact a report could be faxed, could be emailed; she indicated that there was no way that she could do that.
I was quite distressed about the general attitude of this person towards the Court. To me it smacked clearly of disrespect not only to the Court but in particular to her patient, the child, who deserves every assistance he can get in assisting me to come to a conclusion that would be in his best interests. I was quite distressed about the attitude of that witness, and I am surprised that a professional would carry on in that way. I asked her whether, in fact, this was her first appearance in a matter in which she had to support her own report. She said no. She cannot in any way suggest that she was inexperienced, not to know that she should have the report with her. She went further when I asked whether she had any independent recollection of the report; she said no. I don’t know if she’s requesting fees for her attendance, but I must say that I would think that the independent children's lawyer would strongly contest the taxpayers, via the Legal Aid Commission, paying for what I consider to be conduct not in the best interests of the child.
The difficulty in this case arises in relation, as I find, to the personality of the mother. The report to which I have hereinbefore referred dealt extensively with the mother’s psychiatric problems and came to certain conclusions. As a result of the failure of Dr G to come up to her proof in any way whatsoever, it was necessary for Gardiner of counsel, appearing on behalf of the mother, to object to Dr G’s report, and I say in passing, quite properly. There was no way he could cross-examine her, because she didn’t know anything about it. She didn’t have the report there for which to refresh her memory. She also refers in the first or second page of the report to other documents, being an affidavit of Mr H of 7 October. Mr H is the husband of Ms I, who was a child of the mother from another relationship with whom D now lives. An application to extend a court assessment order was the second document, and the third was the child protection history for the Chanel-Peters family. He says that he wished to cross-examine on those points; he was unable to do so, because she was of no assistance to the court whatsoever.
It was extremely difficult for the independent children's lawyer, I would expect, to give instructions to withdraw the affidavit since the affidavit would have been of assistance to me, would have been assistance to any other of the specialists – in particular, Ms J, who prepared an assessment of this matter last year -

RECORDED : NOT TRANSCRIBED
4 November 2010. I note, of course, that the affidavit exhibiting Dr G’s report was not filed until 2011, and Ms J gave evidence that she had not seen it before. I think that’s correct, if my memory serves me correctly.

As a result I put in the invidious position of having a document before me which has been objected to by counsel for the wife, quite properly, and consequently, I’ve taken the step of allowing the document to remain before me, but I indicate that I will take little or no notice of the opinion of Dr G. I say, quite clearly, that I’m satisfied that there are more than sufficient evidence before me for me to determine with whom the child should reside even excluding Dr G’s evidence, and in particular, I make it quite clear that I am not acting on any of her psychiatric diagnoses of the mother, but I will be acting upon what I consider to be the mother’s conduct in this Court and her presentation in the witness box.
The mother has had other children, some of which have been taken into care by the department - others haven’t. But clearly, in this case, the child was. The child, in the assessment of a Ms K, wasn’t it - and at the time of her report, and I say in passing that that report is somewhat aged, too, as well, being in 2009 has a close, warm relationship with the mother. This report was prepared for the Department of Child Safety or whatever it was called at that time. She indicated the child was very protective and close to the mother when she saw the child, and she had a discussion with him extending over some 40 minutes. He evinced a very close and protective attitude towards his mother. He was in care at the time. She was particularly concerned about the question of enmeshment. It appears that the mother is overwhelming in her attempted control of the child. The child was at that time, or had been prior to his being taken into care, sleeping in her bed unless, of course, there was some other gentleman around, when he didn’t. She also was a bit prescient, I find, in this case – was concerned, and I refer to page -

RECORDED : NOT TRANSCRIBED
I was saying he’s fiercely loyal; that appears at page 7 of the report of Ms K’s, and she at page 12 - at the last but one or, rather, the last full paragraph on that page said that she, in considering returning the child to Ms Chanel’s care – she unfortunately misspells the child’s name – she says as follows:
At a minimum, there is a need to ensure that the child has access to other systems outside of this attachment relationship (the mother). Significant actions would involve: (a) monitoring and ensuring that the child continues to attend school, particularly during adolescence; (b) fostering the development of a relationship between the child and his father; (c) ensuring regular sibling contact in the event that [D] is placed elsewhere.

She goes on to say, and this is where I think she was somewhat prescient:
There is a risk that [Ms Chanel] will not tolerate the child maintaining contact with [Mr Peter], and this may result in the family system moving to a location unknown to [Mr Peter] and Child Safety Services.

The applicant, and I will refer to her as the applicant, the mother, is of the view that the child B is not the child of her relationship with Mr Peters, that he is not the father of the child. She initially was complaining that she required DNA testing to take place, and such DNA testing did take place, and it found that the possibility of a person other than being Mr Peters was the father was 99.99572. I must confess in my 35 years I’ve not seen a DNA test as high as that. It appears to me to suggest that there is no other likelihood of the child other than being Mr Peters’. This does not matter anyway under the Act. Mr Peters has acted as father, has an interest in the child. He is entitled to bring such application as he has done in his response, and I make it quite clear that it is clear that the child looks upon him as his father.
The applicant has indicated that she will not recognise the DNA tests. That’s just part of the difficulties she had in her presentation and that, if anything, the father of the child was a Mr L, I think it was, L. And there was some suggestion from counsel for the independent children's lawyer that she had blurted out in the Court that she would put Mr L’s name on the Register of Births, Deaths and Marriages rather than Mr Peters. Unfortunately I will be able to short circuit that, and I would think that since it is an order already in existence - a consent order, I think you said, Mr Slade Jones, of Magistrate Slack of 14 July 2010 indicating that the mother and the father should do everything necessary to change the child’s registered birth is in force and in effect. I am not going to make any further order but make it quite clear that it remains in force and effect and will not be overcome by any orders that I may make today.
I’ve referred to Ms K’s evidence partially in the early stages to indicate that that really encompasses the problems that the applicant has. She has set out quite clearly those matters which concern her, and I will go through each of them seriatim. The child has had a chequered career at school. Since he has gone into his father’s care, he has attended the same school and is doing reasonably well with some difficulties. That is the first of the concerns of Ms K. The second, and this I think is crucial: she is concerned that there should be evidence that the mother will foster the development of a relationship between the child and his father. Not only is she concerned, but the politicians have been concerned, and they have inserted that in section 60CC as one of the matters that I have to be satisfied about – that is, that the child has a right to know both parents, that a child has a right to require both parents, all things being equal - and in this case, I make it quite clear I am of the opinion that if anything, it’s not equal - that the child’s relationship with the other parent, the non-residential parent, should be fostered.
The mother has made it quite clear, quite clear that she will not do that. She is once again nodding at the back of the Court. She has indicated that should the child come into her possession on a so-called permanent basis, she will refuse any contact to the father. That in itself is, in my opinion, damning. She supports such an allegation because she says, first of all, the child is bored; that he has got nothing to do; that he dislikes the father; that the father hits him; that Ms M, the father’s companion, also hits him; and that generally he hates being at E Town, it being such a small town that there is nothing to do. If he lived with the mother, he would be living in F Town, which she concedes is a much smaller town than the one in which he is presently living.
Her further attitude is compounded, if I may put it that way, by the evidence of Ms N. Ms N is the manager – see her affidavit of 28 February 2011 – of C Town Children’s Contact Centre, and she has had the responsibility of monitoring the contact between the mother and the child, and she has set out in the aforesaid affidavit her views of what has taken place on the various dates that she has particularised. But at page 7 of 14, as it appears at the bottom of the page, she sets out the current contact schedule, two hours per fortnight, and thereafter from 1 to 11 – and she doesn’t spell separation correctly, either – but from 1 to 11 she sets out various things which she and her staff have observed. They are damning. In particular, I refer to item 5 where she says:
Staff are constantly required to intervene during visits due to constant questioning of the child and inappropriate conversations initiating by mother.
I give as an example one of the conversations in which the father was late and the mother said in the presence of the child, “I hope he has had an accident and died so I can take the child home.” I would not have thought that this would promote the welfare of the child in any way whatsoever, and I only use that as one. I incorporate in these, my reasons for judgment, that page to which I have referred as well as the following pages, which are notes taken of the dates particularised therein.
It was made quite clear by Gardiner, who has said everything he can in favour of his client, that the dates are not every time that the mother attended upon the contact centre. They are, as he has inferred, particular dates which have been edited, but the general evidence of Ms N – she was called, and she was available, and she did have her notes with her, and she obviously had read them – she indicated that this was constant, this type of behaviour that I have referred to in that item 5 - and it was, was it not, of page 7.
She indicates that subsequent to the date of her affidavit that there have been further contacts - further difficulties. I think this is the one where she refers to the mother saying that the father has been injecting the child with drugs, that blood tests have taken place and they’ve disclosed that he has been drugged with dexamphetamine. On two occasions prior to this affidavit, the contact centre has indicated that unless her contact or conduct improves, they will cease any contact – the contact centre being made available to her. I understand in the evidence of Ms N that since that time, another letter has been written but that on the last two occasions that they have had contact with the mother, she has improved to some extent.
Having incorporated those matters before in my judgment, may I make it quite clear that I am appalled, absolutely appalled at the mother’s consistent attempts to alienate the affection of the child from the father. She has told him inter alia that when he’s 12, he can run away, that she will be having him home by 1 May, if my memory serves me correctly. That has passed, and I can assure you she won’t be having him home, not by order of this Court, at this stage. As I’ve said, I’m appalled at the attitude of the mother in endeavouring to affect the mindset of a 11 year old child.
Ms J, who initially made an assessment in this matter, which, as she pointed out quite properly, is only to endeavour to find the issues between the parties – however, being experienced in this field, she was able to assist us greatly, and it made up, I feel, for lot of the failure of Dr G to come up to proof – not on a psychiatric basis, but on a general assistance basis in relation to her expertise. She made it quite clear, and I accept that what she has done is not a full family report; she was being cross-examined as to why the child was not interviewed by herself, and she said if, in fact, it had have been ordered subsequently that she was to do the report, she would consider deeply whether in fact she would see the child or not. The child has, of course, been interviewed on frequent occasions by other disciplines, particularly through the Department of Children’s Services. And she indicated to me at that time, and I emphasise that, that there may be some fear of substance abuse.

The third matter, which was brought about by Ms K’s report at page 12, is that there should be regular sibling contact in the event that D is placed elsewhere. D is not placed elsewhere; she appears to be living with her half-sister Ms I as well as Mr H -

RECORDED : NOT TRANSCRIBED
with the H’s. She has not – or has little or no contact, as I understand, with the mother. She has some but not much. She has, at this stage, little or no contact with the child, although, and I accept this, the father has said he’s endeavouring to arrange some contact between D and the child. As I’ve said, D is some 16 years of age. I do not believe that, taking into consideration the allegations made by the mother concerning D and the attitude of the Department of Children’s Services towards the inappropriate disciplining of D, the scapegoating of D, that there will be much relationship between the mother and D and consequently would be little between the child and D if he moves to his mother’s house. And finally, she says that there is a risk that Ms Chanel will not tolerate the child maintaining contact. I’ve already touched upon that, and as I said, she was very prescient. She has made it quite clear that the father would have no contact with the child if the child was put into her possession. I would assume and infer from that that even if the Court made an order for contact in favour of the child with the father, that she would not abide by it.

She presented in a most bizarre fashion. She alleges that the father has 56 children. She alleges that she was a witness to a chainsaw murder of a person in Victoria but does not know where it was. She was in the truck, the father at that time allegedly being an interstate truck driver. She alleges that he’s a member of a bikie gang. I don’t think she realised, as I put to her, the two gang mentioned are bitter enemies. But then she changed and said that he knew them. She changed her view insofar as the orders being sought. Initially she wanted sole custody, if I might use that word, of the child. Then in her case management document, she indicated that she thought the child should live with the father. Then in her evidence-in-chief she changed it so it should be week and week about, and then she changed it to the father having weekend contact.
If the allegations, and I do not need to go through them, with great respect to her, as she alleges are true, she would be failing in her duty to the child to put him in the possession of the father albeit for half a day, let alone on for week and week about. She attempted to resile from this by saying, “I knew you would make orders to that effect or something like that,” she said. Her whole attitude was aggressive, was anti any contact between the boy and the father, and obviously she’s putting her own feelings ahead of those of her child. What has the child done as a result of this battery or battering, rather, should we say, of anti-father propaganda put upon him in the presence of people who have ordered, begged and done everything they possibly can to stop her doing it. It appears that he now, and I refer to, once again, to that page 7 of Ms K’s – at 7: Language Communication.
Throughout visits, staff have constantly been required to redirect inappropriate conversations initiated by mother as well as constant questioning of the child at every contact visit. Staff note that when questioning occurs, the child often gives one word answers, shrugs his shoulders and looks down.
Much was endeavoured to be made of this by Gardiner of counsel to the effect that it’s not showing any effect upon the child at all. Ms J, however, was of the view that this could show one of three - there are three matters which could result in his doing this: he has become desensitised; it is brought about as a result of alarm and fear; or, thirdly, it’s the only way he can handle it is by looking down and shrugging. What a dreadful thing for a child at 11 years of age to be put in the position of.
She suggests that he’s autistic. If, in fact, he’s autistic, that’s even worse, because one would think if she had any interest in the child, she would recognise that autism is a most disabling disease or illness, rather, of a young person and that what it required is absolute stability and comfort and support. However, Ms K, who will have conferred upon her soon a doctorate of philosophy in attachment – was of the view that her discussion with the child in 2009 for some 40 minutes did not indicate anything in her opinion, and she conceded that she’s not psychiatrist, but she said, “I did not consider that the way he related to me was in any way suggestive of autism. I don’t think he has got it. I think he’s a boy who has had enough, and he’s just withdrawing.”
Whilst I could, in a case such as this, go on and on and on about the mother’s attitude towards the child and towards the father, I have incorporated Ms N’s notes, and I have referred to and incorporated in my judgment Ms K’s assistance. I must say when I first read her, I see it that she is a – in her CV she had something to do with music, and initially I thought, “What has she got to do with this case?” But I did read in the earlier part that she said she is currently a PhD student in the discipline of social work and that, as I ascertain, that, in fact, she has presented her thesis and has been successful in getting the degree and hopes it to be announced today, if my memory serves me correctly. She was of assistance, and I thought as a result of that she clearly is a person who is experienced in that field, but I think I said her thesis was on the attachment of children, and consequently I found her of great assistance. I’ve relied upon Ms J. Ms J, as I have said, has made it quite clear that she did not do a full report. Perhaps even though I’m greatly assisted by those assessments, sometimes it’s very difficult for the person who was doing the assessment to be able to assist the Court, but she did it as well as she could and I thought very well done.
What then have we left? I have been directed by the politicians to consider the provisions of section 60CC, and in particular I should consider the assumption or the presumption that there has to be joint parental responsibility. This is classic of a case where there is no way I could order joint parental responsibility. The parties can’t agree on anything; they would not, I would expect, be able in any way to discuss any question of parental responsibility let alone when it’s in each of their possession, as is sought by the mother. Her parental responsibility would, I think, be nothing more than attempting to denigrate the father as much as she possibly can and to destroy any relationship that there may be between the boy and his father. I clearly have no hesitation in saying the presumption has been overturned, and I would order that the father have sole parental responsibility for the long-term decision of the child B, born in 1999 – all of them.
The next thing, as I’ve said, is section 60CC. There are many factors that the Court has to consider under section 60 which I should consider as well as I have to consider under section 60CC. I do not believe it is essential to go through each of them, but I do refer to the husband’s summary of case, in which they are touched upon fairly fully, and they seem to me that each one of the submissions made by Davies of counsel for him do assist me to a great extent. I refer to particularly page 3 and on, where he particularises the various subsections. It is quite clear that, as far as I’m concerned, that section 60CC (2)(a) is something which in an ideal world would be wonderful, that the child would benefit by having a meaningful relationship with both of the child’s parents, but not in this case. I believe that the meaningful relationship between the child and the mother – that a meaningful relationship would mean that there would be no relationship between the child and the father. I do not think that is in the best interest. (2) (b): it’s quite clear from what I’ve said that the child is being exposed to psychological harm by being subjected to abuse, neglect or family violence. Neglect – abuse is the matter. It is abuse for a child to be told that his father should be dead. That is an abuse. It’s not a physical abuse, it’s not a sexual abuse, it’s an emotional abuse, and it has to be stopped, and the only way I can see it being stopped is by the child being put in the possession of the father.
The child has not expressed any views other than those to Ms K, where he was fiercely protective of his mother. But since then, there is evidence before me that he has developed a close, warm and loving relationship with the father as well as, I understand, his now de facto – I don’t know whether Ms M is a de facto; I think they’ve taken up cohabitation – and Ms M’s child, O. Equally, he still gets on well with his mother and would get on a lot better, one would have thought, if, in fact, she did not continue to batter him with statements concerning the father.
I have touched upon the relationship of the child with each of the child’s parents, and I’ve touched upon Ms M and O. As I’ve said before, section 60CC subparagraph (c) is damning insofar as the mother is concerned. I have to consider whether there is a willingness and ability of each of the child’s parents to facilitate and encourage a close relationship and – I am quite satisfied that the mother could not do it, and she herself by her conduct and by her statements in relation to contact obviously would not do it, and I think that’s enough to show that – and I’m satisfied on the evidence before me, notwithstanding the fact that the father has failed to adequately maintain his children by being $24,000 or thereabouts in debt to the Child Support Agency, he has the child’s interest at the forefront. He has endeavoured to get him to school; he has continued to comply in relation to contact, save on one occasion when someone was ill or something of that nature where he cancelled. And I do believe that he would put the child’s welfare first and attempt to encourage the relationship between the mother and the boy and endeavour to maintain it.
I do believe that there is one other that I have to look at, and that is I must consider section 60CC (4), where I have to decide whether, in fact, each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and I take that into consideration. I have made it quite clear that I think the mother has abysmally failed herself as well as the boy by carrying on in the manner in which she has. I have taken in consideration that the children’s parents have separated, that they have each gone their own way; the father has, in effect, re-partnered with Ms M and has been for some time; that the mother is and has been moving around quite a lot until October, I think it was, last year, when she has remained at F Town, but before that, she was moving in considerable amount.
I just really found this case quite distressing. This is a sad case. The mother doesn’t realise the difficulty she has put herself in and, in particular, the boy, because unless she smartens herself right up, she’s not going to see the boy. She has indicated that she will not abide by going to a contact centre to avail herself of an order that I will be making in relation to contact; that’s her loss. But unfortunately, bigger than that is it’s the boy’s loss. He deserves to know his mother. He deserves to know his mother who will not batter him with continued pressure in relation to his relationship with his father.
Consequently, I’m satisfied in all the circumstances that the child reside with the father. I have had put before me a draft order, scratchy draft order by the independent children's lawyer, and I agree with all of them. Insofar as contact, as I’ve said, the mother is to have contact with the boy once every month. I say month because there is evidence before the Court that the child should be relieved from the pressure that he is getting from his mother on each alternate weekend and perhaps to allow him to regroup to a certain extent. I have made it quite clear he enjoys his mother, but he doesn’t enjoy – I refer to his conduct of dropping his head – the continual berating of the father.
It is a further condition of the contact particularised immediately hereinbefore that on each occasion, she gives the centre no less than 72 hours notice – by 5 pm on the Wednesday immediately preceding the time limit of contact of her intention to attend.The father shall contact the centre before travelling on the Friday afternoon to confirm the mother’s intention to attend. If she does not confirm, he does not have to attend. And I further order – I think this is quite conducive – if the mother without reasonable excuse fails to attend the centre pursuant to the order in relation to contact on three consecutive occasions, the father, having first verified the mother’s failure with the centre, may instruct the centre to cease all contact. Any contact costs will be shared equally.
It is necessary as a result of the order I’m going to make in relation to correspondence between the parties in relation to the child – I will be ordering that the father do forward to the mother via the independent child’s lawyer school reports, any medical reports in relation to serious illnesses and if he does have any photographs of some interest towards the mother, and they will be directed to the mother through the independent children's lawyer, who shall remain in this matter until 5 November 2011.
I have already indicated that the child’s name is to be changed in accordance with Slack FM’s order. However, it appears that in all probability, the mother might do that, and I would empower the father to do all things necessary to have the name changed to Peters. I am satisfied on the material before me almost beyond reasonable doubt that the respondent is the father of the child B, and I make a declaration as to his birth, and consequently, I would expect, with great respect, that that order having being made, the registrar will, as a result of the default of the mother in not carrying out the order of Slack FM, change the name on the birth certificate to Peters.

RECORDED : NOT TRANSCRIBED

There was further one matter, a question of telephone contact, which was opposed by the father. I can’t see that there would be any benefit in having the child telephoned by the mother, who, on the evidence before me, would only start to berate the child again about the relationship between herself and the father. Consequently, I would not make any order in relation to that.
I had overlooked one submission of Gardiner in relation to joint parental responsibility – is that he says there should be more contact – if, in fact, I made sole parental, there would be little or no contact between the child and his extended family on the mother’s side. I would have thought that that is nowhere near sufficient for me to make any order other than the order I have made, whether it’s true or not.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 6 May 2011.

Associate:

Date: 24 May 2011

[2011] FamCA 373

6 May 2011

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