Chapman and Carrington

FAMILY COURT OF AUSTRALIA

CHAPMAN & CARRINGTON

[2008] FamCA 550

FAMILY LAW – CHILDREN - Best interests – whom with a child lives

Family Law Act 1975 (Cth)

APPLICANT:

Mr Chapman

RESPONDENT:

Ms Carrington

INDEPENDENT CHILDREN’S LAWYER:

Ms Nikitin

FILE NUMBER:

SYF

2075

1998

DATE DELIVERED:

11 July 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

30 June to 2 July 2008 (final stage)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Falloon

SOLICITOR FOR THE APPLICANT:

James Soothill & Associates

COUNSEL FOR THE RESPONDENT:

Mr Livingston

SOLICITOR FOR THE RESPONDENT:

Alidenes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Givney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

All previous parenting orders be discharged.
The mother and father have equal shared parental responsibility for the child born … July 1995 (“the child”).
The child live with the mother.
The child have time with the father as follows:
4.1.During school terms from after school Thursday to before school Monday each alternate week.
4.2.One half of each school holiday period. The father shall have the first half of each period in odd numbered years and the second half in even numbered years unless otherwise agreed between the parties.
4.3.School holiday period shall be defined by the number of nights between the last day of term and the first day students attend in the next term and, in the event of odd number of nights, the father shall have the benefit of the extra night. Time shall commence on the afternoon of the last day of the school term and shall conclude either at the midpoint day or on the morning of the first day of the new school term as the case may be.
4.4.In the event Father’s Day falls on a non-contact weekend from 6.00pm the day prior to Father’s Day until before school Monday.
4.5.From 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an even number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an odd number.
Order 4 is suspended until the eighth Thursday after the date of these orders.
The father is restrained from contacting the child until the period of suspension concludes.
In the event Mother’s Day falls on the father’s weekend, such time shall be suspended from 6.00pm on the day before Mother’s Day.
The mother shall have time with the child from 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an odd number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an even number.
When changeovers do not take place at the child’s school, the father is to collect the child from the mother’s residence at the commencement of the father’s time and return the child to the mother’s residence at the conclusion of that time.
The mother is at liberty to attend the child’s school to attend events that parents usually attend.
Upon the suspension contained in Order 4 expiring the father is at liberty to attend the child’s school to attend events that parents usually attend.
Both parties are entitled to obtain the child’s school reports issued by the school.
The parties shall ensure the other is informed within a reasonable time of school events that come to that party’s attention when the child is in his or her care.
The father shall not engage the child in any performances except:
14.1.On one occasion per fortnight during daylight hours on a Sunday at H or Y in Sydney city for a period not exceeding two hours;
14.2.As a peer activity with a group of other children from the child’s school;
14.3.At festivals.
Pending further order, the child is not to perform in premises where alcohol is served.
The parties shall ensure the child’s attendance with a counsellor as nominated by the Independent Children's Lawyer [who is at liberty to liaise with Dr W on this matter]. The parties shall not speak to the child about such counselling and shall respect the child’s privacy unless such counsellor advises the parties that it is something that would be in the child’s interest and each party equally pay the cost of the counsellor.
With respect to the previous order the counsellor so nominated shall be provided with Dr W’s two reports and a copy of the Reasons for Judgment.
Within two months of the date of these orders each of the parties shall enrol and attend a Parenting after Separation Course conducted by Relationships Australia. The parties are at liberty to attend such counselling together if they both agree.
Neither party shall do any act or thing or sign any document to cause or encourage a circumstance in which the child is known by a name other than H … Carrington.
The parties shall encourage the child to use the names “[H]”, “[Carrington]” and “[H Carrington]”.
The child’s current school be provided by the Independent Children's Lawyer with a copy of these Orders.
The Independent Children's Lawyer is requested to meet with the child and explain the Orders and my Reasons to him.
Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the child and that until further order that Judge be Justice Watts, if he is reasonably available.
Pursuant to s.65DA(2) and s.62B, 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 .

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2075 of 1998

MR CHAPMAN

Applicant

And

MS CARRINGTON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This case is about what time the parties’ child, who has just turned 13 in July 2008, will spend with each of his parents.
The parties disagree about when and how the child should be permitted to engage in performances.
There is also a disagreement between the parties as to whether or not the child’s surname should be changed on his birth certificate and by which surname he should be known.

DOCUMENTS

Father’s documents

The following documents were relied upon by the father:
4.1.Father’s affidavit sworn 12 May 2008;
4.2.Father’s affidavit sworn 6 June 2008.

Mother’s documents

The following documents were relied upon by the mother:
5.1.Mother’s affidavit sworn 15 May 2008;
5.2.Mother’s affidavit sworn 25 June 2008;
5.3.Mother’s affidavit sworn 26 June 2008.

Reports from Dr W:

The following reports by Dr W were in evidence before me:
6.1.Report dated 22 November 2007;
6.2.Report dated 26 June 2008.

APPLICATIONS

Father

During the final stage of the hearing the father sought the following final orders (Exhibit B):-
1.The parents shall have equal shared parental responsibility for the child […] born […] July 1995 (“[the child]”).
2.[The child] shall live with the father when he is not spending time with the mother.
3.Unless otherwise agreed, [the child] shall spend time with the mother:
a.In alternate weeks from after school on Friday until the commencement of school on Monday.
b.Each Wednesday from the conclusion of school until the commencement of school the following day.
c.For one half of the NSW school holiday period, being the second half of any such school holidays commencing in 2008 and the first half thereof commencing 2009, and alternating on a year about basis.
d.On Mother’s Day unless [the child] is otherwise spending time with the mother on that day pursuant to these orders.
4.Each party shall do all things necessary on his or her part to ensure that [the child] can have telephone communication with the other parent at all reasonable times on his mobile telephone.
5.The parties shall forthwith complete the intake procedures required for attendance at the first available parenting course offered by a service provider approved by the court, and each shall continue to attend such course to completion and provide the Independent Children's Lawyer with verification of such attendance.
The orders sought by the father if the child ordinarily lives with his mother were:
1.The parents shall have equal shared parental responsibility for the child […] born […] July 1995 (“[the child]”).
2.[The child] shall live with the mother when not spending time with the father.
3.Unless otherwise agreed, [the child] shall spend time with the father:-
a.For three out of four weekends in each four week period from the conclusion of school on Friday until the commencement of school on Monday.
b.Each Wednesday from the conclusion of school until the commencement of school the following day.
c.For one half of the NSW school holiday period, being the first half of any such school holidays commencing in 2008 and the second half thereof commencing 2009, and alternating on a year about basis, and Orders a. and b. above shall be suspended during school holiday periods.
d.On Father’s Day unless [the child] is otherwise spending time with the father on that day pursuant to these orders.
4.Each party shall do all things necessary on his or her part to ensure that [the child] can have telephone communication with the other parent at all reasonable times on his mobile telephone.
5.The parties shall forthwith complete the intake procedures required for attendance at the first available parenting course offered by a service provider approved by the court, and each shall continue to attend such course to completion and provide the Independent Children's Lawyer with verification of such attendance.

Mother

The mother’s final position in relation to the orders that she sought at the final hearing were as follows:-
1.That [the child] live with the mother.
2.That the parties attend for a period of not less than 2 months, parenting counselling with Relationships Australia or other agreed service provider.
3.That parenting time with the father be suspended until such period of parenting counselling is complete.
4.That thereafter parenting time take place each alternate week from Friday at the conclusion of school to Monday at the commencement of school.
5.That the father have contact for one half of each school holiday period. The school holiday period shall be defined by the number of nights between the last day of term and the first day students attend in the next term and in the event of an odd number of nights, the father shall have the benefit of the extra night.
6.That both parents are to ensure that [the child] attends each gazetted school day at the school he is enrolled to attend with the exception of any pupil free day or any day when the school is closed due to industrial action or any day when [the child] is ill. Without limiting the generality of the foregoing, both parents are to ensure that [the child]:
6.1[The child] attends school and leaves school on time.
6.2[The child] is not involved in any travel, concert or other activity such as would prevent him from attending school each day and for the whole school day.
6.3No leave from school is to be sought without prior written notice being forwarded to the other parent such notice to include a copy of all proposed correspondence with [the child’s] school.
7.The father is not to attend at [the child’s] school within school hours.
8.The father is to surrender [the child’s performance credentials] and neither party is to permit [the child] to engage in [performance] or work for reward until [the child] attains the age of 16 years and, after that time only with the prior written consent of the other parent.
[In final submissions the mother altered her position agreeing an order could be made to permit the child to perform at venues D and Y for a defined period on a Sunday during daylight hours.]
9.That neither party shall denigrate the other party or a member of the other party’s family to the child or in the presence of the child at all.
10.That neither party shall do any act or thing or sign any document to cause the child to be known by any name other than [H Carrington].
11.That the parties are not to do any act or thing to cause [the child] to be known by any name other than the name referred to in Order 10 above.
12.That the parties shall encourage the child to use the names “[H]” and “[H Carrington]”.
13.That the father is restrained from doing any act or thing to cause the child to be known by any surname other than [Carrington].
14.That [the child’s] current school and any future school at which he may be enrolled be provided by the Independent Children's Lawyer with a copy of these Orders.
The orders sought by the mother in the event that the child will ordinarily live with his father:-
1.That the parties attend for a period of not less than 2 months, parenting counselling with Relationships Australia or other agreed service provider.
2.That [the child] spend time with the mother as follows:-
2.1In each alternate week, from Friday at the conclusion of school until Wednesday at the commencement of school.
2.2That the mother have contact for one half of each school holiday period. The school holiday period shall be defined by the number of nights between the last day of term and the first day students attend in the next term and in the event of an odd number of nights, the father shall have the benefit the [sic] extra night.
3.That both parents are to ensure that [the child] attends each gazetted school day at the school he is enrolled to attend with the exception of any pupil free day or any day when the school is closed due to industrial action or any day when [the child] is ill. Without limiting the generality of the foregoing, both parents are to ensure that [the child]:
3.1[The child] attends school and leaves school on time.
3.2[The child] is not involved in any travel, concert or other activity such as would prevent him from attending school each day and for the whole school day.
3.3No leave from school is to be sought without prior written notice being forwarded to the other parent such notice to include a copy of all proposed correspondence with [the child’s] school.
4.The father is not to attend at [the child’s] school within school hours.
5.The father is to surrender [the child’s performance credentials] and neither party is to permit [the child] to engage in [performances] or work for reward until [the child] attains the age of 16 years and, after that time only with the prior written consent of the other parent.
[See above note as to mother’s position in final submissions. ]
6.That neither party shall denigrate the other party or a member of the other party’s family to the child or in the presence of the child at all.
7.That neither party shall do any act or thing or sign any document to cause the child to be known by any name other than [H Carrington].
8.That the parties are not to do any act or thing to cause [the child] to be known by any name other than the name referred to in Order 8 above.
9.That the parties shall encourage the child to use the names “[H]” and “[H Carrington]”.
10.That the father is restrained from doing any act or thing to cause the child to be known by any surname other than [Carrington].
11.That [the child’s] current school and any future school at which he may be enrolled be provided by the Independent Children's Lawyer with a copy of these Orders.

Independent Children's Lawyer

At the completion of the evidence the Independent Children's Lawyer sought the following orders:
1.All previous parenting orders be discharged.
2.The child […] born […] July 1995 shall live with the mother.
3.The child […] shall have time with the father as follows:
3.1.During school terms from after school Thursday to before school Monday each alternate week.
3.2.One half of each school holiday period. The father shall have the first half of each period in odd numbered years and the second half in even numbered years unless otherwise agreed between the parties.
3.3.School holiday period shall be defined by the number of nights between the last day of term and the first day students attend in the next term and, in the event of odd number of nights the father shall have the benefit of the extra night. Time shall commence on the afternoon of the last day of the school term and shall conclude either at the midpoint day or on the morning of the first day of the new school term as the case may be.
3.4.In the event Father’s Day falls on a non-contact weekend from 6.00pm the day prior to Father’s Day until before school Monday.
3.5.From 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an even number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an odd number.
4.Order 3 is suspended until the eighth Thursday after the date of these orders.
5.The father is restrained from contacting [the child] until the period of suspension concludes.
6.In the event Mother’s Day falls on the father’s weekend, such time shall be suspended from 6.00pm on the day before Mother’s Day.
7.The mother shall have time with [the child] from 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an odd number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an even number.
8.When changeovers do not take place at [the child’s] school, the father is to collect [the child] from the mother’s residence at the commencement of the father’s time and return [the child] to the mother’s residence at the conclusion of that time.
9.The mother is at liberty to attend [the child’s] school to attend events that parents usually attend.
10.Upon the suspension contained in Order 4 expiring the father is at liberty to attend [the child’s] school to attend events that parents usually attend.
11.Both parties are entitled to obtain [the child’s] school reports issued by the school.
12.The parties shall ensure the other is informed within a reasonable time of school events that come to that party’s attention when [the child] is in his or her care.
13.The father shall not engage [the child] in any [performance] activities apart from one occasion a fortnight on a Friday to conclude no later than 8.30pm. The father shall ensure that within one month of the commencement of his time with [the child] that [the child] does not carry out any [performance] activities within 0.5 kilometres of Kings Cross Railway Station. [As will be discussed below, during discussions in submissions the Independent Children's Lawyer amended the form of this order]
14.The parties shall ensure and equally bare the cost of [the child’s] attendance with a counsellor as nominated by the Independent Children's Lawyer [who is at liberty to liaise with Dr [W] on this matter]. The parties shall not speak to [the child] about such counselling and shall respect [the child’s] privacy unless such counsellor advises the parties that it is something that would be in [the child’s] interest.
15.With respect to the previous order the counsellor so nominated shall be provided with Dr [W’s] two reports and a copy of his Honour’s judgment.
16.Within two months of the date of these orders each of the parties shall enrol and attend a Parenting after Separation Course conducted by Relationships Australia. The parties are at liberty to attend such counselling together if they both agree.

The Independent Children's Lawyer supported the mother’s application for orders about the child’s name.

ORDERS MADE DURING THE HEARING

The hearing of this matter proceeded under Division 12A Part VII of the Family Law Act 1975 (“FLA”).

13 July 2007

Order for the preparation of Dr W’s first report.

4 September 2007

The parties gave evidence before me on 4 September 2007.
Orders and notations were made in the following terms:-
1.The Director of Child Dispute Services or her nominee facilitate arrangements to enable the parents to attend for appropriate post separation parenting counselling and the parties each do all things to attend at any appointments that are arranged by the provider of that service and each party pay half the costs of that counselling.
2.The mother obtain a book which will become the communication book which will travel with [the child] between the parties and that both parties will use the book to communicate with one another and both parties will respond to any communication that is in that book that the other has written.
3.Leave is granted to the Independent Children's Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to Dr [W] and the fees in respect of that photocopying are waived.
4.Leave be granted to the parties and the Independent Children's Lawyer to inspect subpoena material produced by the [B] School, NSW Police.
5.The legal representatives of the parties have leave to inspect the subpoena material produced from the Department of Community Services and no photocopy access is granted.
6.Neither parent discuss the current proceedings with [the child].
Notations:
7.[The child] will be with his music teacher from after school each Monday until 6pm until the holding of the scholarship exam at [D] College. His mother will take him for tuition on Friday afternoons and Saturday mornings until the holding of the scholarship exam at [D] College.
8.[The child] will be attending [D] College with his father on 6 September and 10 October.
9.The mother has indicated she doesn’t intend to move until such time as she gives the father and the Independent Children's Lawyer 21 days written notice of her intention to do so and if she does the father or the Independent Children's Lawyer have leave to relist this matter on an urgent basis. .

13 September 2007

Order to facilitate Dr W’s viewing of subpoenaed material.

13 December 2007

Release of Dr W’s report.

18 December 2007

Dr W’s report was available and was discussed in proceedings before me on 18 December 2007. On that day, I made an order aimed at resolving a dispute between the parties as to which high school the child would attend in 2008.
Pending further order, orders and notations were made in the following terms:-
1.[The child] commence school next year at [D College].
2.The current order for [the child] to spend time with his parents be suspended so far as it relates the time that [the child] spends with his parents during school term.
3.[The child] spend from after school Monday in one week to before school Monday in the next week with his mother and from after school Monday to before school Monday in the following week with his father and thereafter week about.
4.The time in order 3 will start with [the child] being with his mother for the first week of the first school term in 2008.
5.Both parties are to pay one half of the fees associated with [D College].
6.This matter be adjourned to 12.30pm on 11 February 2008.
Notations:
7.The father’s undertaking that he will contribute any child support payment the mother has to make to the father towards his obligation to pay one half of the school fees pursuant to Order 5 and in that regard, the mother in lieu of paying child support to him, may pay the amount she would otherwise have paid in child support directly to [D] College and the father shall receive a credit for that amount against the amount that he would otherwise be required to pay under Order 5.
8.The father will deliver and collect [the child] from [T] Railway Station on school days when [the child] is with him.

25 January 2008

The matter was subsequently relisted before me in January 2008 because the circumstances had changed, both in relation to the anticipated level of income of the mother and the anticipated fees for D College. I reviewed the new proposals of the parties in relation to the child’s schooling and made a determination that pending further order the child would commence school at N School.
On that day, I also made an order resolving a dispute between the parties as to the child’s performance activities pending further order.
Orders were made in the following terms:
1.Order 1 made 18 December 2007 that [the child] commence school at [D] College be discharged.
2.[The child] commence school in 2008 at [N School].
3.Pending further order, Order 3 made 18 December 2007 be varied so that [the child’s] time with his father, during school term, commence after school on Friday and conclude before school on Friday in one seven day period and that [the child’s] time with his mother commences from after school Friday and conclude before school Friday in the next seven day period.
4.Pending further order, the father not engage [the child] in any [performance] activities apart from one occasion a fortnight on a Friday to conclude no later than 8.30pm.

11 February , 3 March and 5 June 2008

Procedural orders in terms of material to be filed and work to be done in preparation for the final stage of the hearing.
Other procedural orders were made on 3 March and 5 June and I noted on 5 June that the parties had agreed that Dr W update his report.

CHRONOLOGY

The father was born in September 1995 and is currently 52 years of age.
The mother was born in March 1966 and is currently 42 years of age.
In 1989 the father reported suffering a breakdown and he saw a psychiatrist for about six months. He had a couple of depressed periods since then for which he has had treatment with antidepressants, but that he has had no depression or treatment in the last ten years (Dr W’s first report, page 8).
In June 1994 the parties commenced cohabitation and in April 1996 they separated. The parties did not marry.
In July 1995 the child was born.
There has been a long history of litigation between the parties in respect of the child. On 8 April 1996 the father applied for residence of the child at the Hornsby Local Court. The child was nine months old when the parties started to litigate about him.
On 7 June 1996 the following orders were made by the Hornsby Local Court:-
1.Parties attend for counselling.
2.[The child] to have time with his father from 9.00 a.m. to 4.00 p.m. each Sunday, Tuesday and Friday.
On 30 August 1996 the father filed a parenting application before the Local Court (Family Matters) at Sydney. The following orders were made by the Local Court:
1.That the father and mother continue to have parental responsibility for the long term care, welfare and development of the child […] born […] July 1995.
2.That the child live with the mother and that whilst [sic] the mother shall have sole parental responsibility for the day to day care and welfare of the child.
3.That the father have personal contact with the child as follows:-
[a]From the date of these Orders until the date when the child reaches the age of two years being […] July 1997:-
[i]Whilst the father is not in full-time employment:-
[a]On each alternate week being Wednesday and Saturday of one weekend on the Wednesday, Friday and Sunday of the other week between the hours of 9.00 a.m. to 4.00 p.m. and during the daylight saving period between the hours of 8.30 a.m. until 6.00 p.m.
[ii]Whilst the father is in full-time employment:-
[a]Each Tuesday and Thursday between the hours of 6.30 p.m. and 8.00 p.m.
On 27 February 1997 the mother obtained an apprehended domestic violence order against the father in the Local Court at Hornsby for a period of two years.
On 22 August 1997 the father filed a parenting application in the Local Court (Family Matters) in Sydney.
By consent pending further order, orders were made at Local Court (Family Matters) as follows:
1.That the father have contact to [the child] [born […] July 1995] each Saturday commencing 30 August 1997 between 9.00 a.m. and 6.00 p.m. and on Tuesday 26 August 1997 between 9.00 a.m. and 6.00 p.m.
2.That [Ms L] be present during the contact.
3.That neither party is to approach the residence of the other, or cause the third party to do so, or contact each other’s neighbours, other than in relation to collection or delivery on contact occasions.
4.That the father is to pay the mother $10.00 at the commencement of each contact occasion, and contact changeover point to be MDs [sic] at […].
5.That the father is to file his Affidavits regarding Interim Orders by 12/9/97 and the mother to respond by 3/10/97.
6.That the proceedings be adjourned to 29/8/97 for mention at this Court at 9.30 a.m.
The Court notes:-
A.That these Orders are made without any admission being made by the father that there is a need for anyone to be present during his contact with his son or that the contact allowed is adequate.
On 21 November 1997 those proceedings were transferred to the Sydney Registry of the Family Court of Australia and orders were made by the Local Court as follows:
1.That each party is to ensure that neither themselves or their partners or a third party denigrate or speak slightingly of the other party in the presence or hearing of the child […] [born […].7.1995].
2.That the mother is to do all acts and things necessary to ensure [B Carrington] is not present at any changeover.
3.That the father is to pay the mother $30.00 per week in relation to the cost of contact including the water taxi.
4.That the changeover point for contact be [K] Police Station.
5.That unless the father gives the mother 28 days notice overnight contact is to take place at [L Street, N].
And the Court notes:-
6.The father gives the following undertakings:-
[a]To ensure that the child wears a life jacket if he is on a boat or near the water.
[b]Not to consume alcohol or be under the effect of alcohol in the presence of the child or when exercising contact.
c]Not to smoke cigarettes in the presence of the child.
And the Court further Orders:-
7.That the proceedings be transferred to the Family Court of Australia.
On 10 February 1998 the mother registered the child’s name with the Registrar of Births Deaths and Marriages. The name on the birth certificate was “[H Chapman Carrington]”.
In the Family Court, consent orders were made on 10 august 1998 by Moore J as follows:
1.All prior orders made in the Local Court Family Matters and in the Family Court of Australia be discharged.
2.That the child […] born […] July 1995 live with the mother.
3.That each parent have joint parental responsibility for [the child’s] long term care, welfare and development.
4.The mother to have sole responsibility for [the child’s] day to day care, welfare and development except for such time as when [the child] is having contact with his father in which case the father shall have the said responsibility.
5.[The child] have contact with his father:
(a)Until [the child] attends school:
(i)each alternate weekend from 3.00pm Friday until 5.00pm Sunday commencing 22 August 1998;
(ii)each other week from 4pm Monday until 4pm Tuesday commencing 17 August 1998;
(iii)on four (4) occasions each year (to be not less than two months apart), the contact in (i) to be extended to commence 3.00pm Thursday and conclude 5.00pm Monday.
(b)Upon [the child] commencing at school:
(i)each alternate weekend from immediately after school on Friday until 5.00pm Sunday, extending to 5.00pm Monday if such contact falls on a long weekend;
(ii)for the first half of each school holiday period except Christmas holidays;
(iii)for one half of each Christmas school holiday period, with the father to have the first half of the first such period and alternating each year thereafter.
(c)By telephone:
(i)once each week, on a Wednesday morning between 8.00am and 8.30am unless the mother gives 48 hours notice nominating a different time with the father to call the child, unless the child is away on holidays with the mother at which times the mother shall arrange for the child to telephone the father;
(ii)on [the child’s] birthday if [the child’s] birthday falls on a non-contact day with all the calls to be limited to 10 minutes duration and the mother to ensure that the child is available to accept the calls as set out in (c) herein.
(d)All such further times as the parents may agree in writing.
6.For contact, mother deliver [the child] to the father under the clock at Country Platform Central Railway and the father shall return [the child] to the mother at [K] Police Station or train station nearest to the mother’s residence if she is living on the mainland, or as otherwise agreed in writing.
7.Each parent shall provide the other with their home telephone number or telephone contact number and address, and advise the other in writing of any change to their residential address no less than 21 days prior to any such change.
8.The father shall:
(a)comply with Maritime Service Board guidelines and ensure that the child wears a life jacket at such times when the child is in a boat with the father;
(b)not consume alcohol from 12 hours prior to any contact until the conclusion of contact.
9.The mother to authorise the child’s medical practitioner to furnish information in relation to the child to the father if so requested by the father, and further, to authorise the child’s school to furnish information and copies of reports to the father.
10.That the mother is to do all acts and things necessary to ensure .. first name unreadable..[Carrington] is not present at any contact changeover occasion.
11.In the event that contact fails to occur as provided for in Order 5(a)(i) and (ii) herein due to the child being ill, or due to some other significant circumstance, then the mother shall provide and the father exercise that contact that is missed, on the weekend or weekday immediately following the contact that has failed to occur.
12.In the event that contact fails to occur because the child is ill then the mother shall provide to the father a medical certificate in relation to the child’s illness within seven days of the contact not taking place.
13.Until such time as the child commences at school the mother upon providing the father with 28 days notice in writing, shall be entitled to take the child away on holiday for a period, or periods in total, not exceeding 28 days in each twelve month period commencing from the date of the orders, and subject to order 14 hereunder, during such periods the father’s contact pursuant to order 5(a)(i) and (ii) shall be suspended.
14.In the event that the father’s contact is suspended pursuant to order 13 then the father shall be entitled to “make up contact” on consecutive weekends and/or consecutive Monday/Tuesday as the case may be, immediately upon the child’s return from holidays.
In 1999 the mother moved from the Central Coast region and commenced to live with her father in the Blue Mountain region. At that time the father was living in the North Coast region and the mother says that the father commenced to have overnight time with the child. The child commenced preschool.
In 2000 the child commenced school at R Public School.
On 30 November 2000 the father filed a further parenting application for final orders in the Family Court at Sydney.
On 31 January 2001 final parenting orders were made by his Honour Justice Chisholm at the Sydney Family Court as follows:-
1.That the parties do all things and sign all documents necessary to amend the Birth Certificate of [the child] born on […] July 1995 by adding the full name “[E]”.
2.That the Orders made on 10 August 1998 be amended as follows:-
[a]Order 6 be deleted and in its place be substituted the following words:-
“That for the purpose of the alternate weekend contact the father collect the child from school on Fridays [or Thursdays on long weekends on which the Friday is a holiday] at the end of the school day and return the child for collection by the mother to [T] Station at 5.00 p.m. on the Sunday [or Monday in the case of long weekends of which the Monday is a holiday].”
[b]That Order 5[c] be amended to substitute the time “Wednesday evening between 5.30 p.m. and 7.00 p.m.” and for the time “Wednesday morning between 8.00 a.m. and 8.30 a.m.”
[c]By consent that Order 5 be amended to include clause [e] as follows:-
“In relation to the Christmas school holiday period for the first half of that school holiday period in 2001 including Christmas Day and thereafter alternating between the first and second half of the Christmas school holiday period in each year.”
[d]That Order 10 be discharged.
3.That all applications be otherwise dismissed.
In 2003 the father says he moved to the Blue Mountains. At that time he lived with a girlfriend and her two children.
In 2004 the child commenced to attend B School.
In 2005 the mother commenced sharing accommodation with a man and lived with him for a short period.
The father commenced proceedings and parenting arrangements in relation to the child were relitigated. The father filed an application for final orders in the Local Court at Katoomba signed 7 March 2005. The mother filed a response in the Family Court on 29 April 2005.
During 2005 the child wrote a letter apparently to the Court. It is in the following terms:-
Dear Sir,
I’m nine years old and I do a lot of sports, like basketball, karate, swimming find motorbikes [sic]. I have been wanting to live with dad for years because I know that he will let me see my mum whenever I want. Mum doesn’t (let) listen to me when I ask her to change things. I’m really unhappy with my mum. I’m also annoyed [sic] with my mum because she won’t let me spend more time with dad. I love my mum but she is over protective. Dad’s my best friend.
From [The Child]
On 8 September 2005 final parenting orders were made by consent before Le Poer Trench J.
1.That all previous parenting orders made in relation to […] (“[the child]”) born […] July 1995 be vacated.
2.That [the child] reside with the mother.
3.That the mother and father shall have the joint responsibility for making decisions concerning the day to day care, welfare and development [the child] child [sic] whilst he is in their care.
4.That each party shall have the responsibility, in consultation with the other, for making decisions about the long term care, welfare and development of [the child].
5.That the father shall have contact with [the child] as follows:
5.1Each alternate week from Friday (or Thursday in the case of a long weekend o which Friday is a holiday) at the conclusion of school until Monday (or Tuesday in the case of a long weekend of which the Monday is a holiday) at the commencement of school.
5.2Each Thursday from the conclusion of school until 8.00pm.
5.3On half of each school holiday period. The father shall have the first half of each period in odd numbered years and the second half in even numbered years unless otherwise agreed between the parties.
5.3.1“School holiday period” shall be defined by the number of nights between the last day of term and the first day students attend in the next term and, in the event of an odd number of nights the father shall have the benefit of the extra night.
5.4That in the event that Father’s Day falls on a non contact weekend, from 6.00pm on the day prior to Father’s Day until 6.00pm on Father’s Day.
5.5Such further contact as agreed between the parties.
6.In the event that Mother’s Days falls on a contact weekend, such contact shall be suspended from 6.00pm on the day prior to Mother’s Day.
7.That the father shall provide [the child] with a pre paid mobile telephone for his personal use and benefit.
8.That the father be at liberty to telephone [the child] on the mobile telephone number at all reasonable times. “Reasonable times” to be defined as between the hours of 7.30am and 8.00pm.
9.That for the purposes of contact changeovers that do not take place at [the child’s] school, the father is to collect [the child] from the mother’s residence at the commencement of contact and deliver [the child] to the mother’s residence at the conclusion of contact.
10.That pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Notation
A.The Court is asked to note the parties intention that in the event the mother is required to stay overnight in Sydney in the course of her employment, the mother will notify the father to arrange overnight contact commencing at the conclusion of school on the given day and concluding at the commencement of school on the following day.
B.The Court is further asked to note the parties intention to attend counselling at the father’s expense with Relationships Australia, Katoomba.

In March 2006 the parties and the child commenced seeing a psychologist by the name of Ms BE.
The parties continued to see Ms BE in the middle part of 2006.
The mother asserts that on 29 June the mother overheard conversations between the child and his father.
During this period the child expressed a view that he wanted to spend more time with his father (at least about half).
The mother asserts the father said:-
“I know it’s going to be very hard at first but it’s best to get it over with quickly. You’ve got to give her no room to move, then you can develop the relationship you want with her when she’s not dictating to you. If you say to her that you’re not going to be there at all, then she’s going to say yes to half rather than not have you at all.”
On 3 November 2006 the father filed a new application for final orders in the Katoomba Local Court seeking that the chld live with him and those proceedings were transferred to the Family Court at Sydney, having their first return date on 6 December 2006.
On 6 February 2007 an order was made that the child be independently represented.
On 8 February 2007 there was an incident when the child, on returning to his mother after spending time with his father, turned around and ran out of his mother’s house to a motor vehicle that was driven by his father parked a block away from the mother’s house.
On 9 February 2007 the father filed an urgent application seeking an exparte interim order that the child live with him.
On 13 February 2007 a recovery order was made by Judicial Registrar Loughnan in the Sydney Family Court. That recovery order was not executed as the child was subsequently returned to his mother.
On 28 February 2007 Judicial Registrar Loughnan made an interim order dismissing the father’s application for the child to live with him or alternatively for the child to live with him week about.
The matter first came into my list on 13 July 2007 when I was invited to make a consent order for a single expert, Dr W, to be appointed to prepare a report and as I have indicated that is what I did.
On 7 December 2007 the child told his mother that he had seen Dr W’s report.
In January 2008 the mother moved from her property in the Blue Mountains to ordinarily live at N, although she returned and still returns to the Blue Mountains each weekend to be with her father who lives there and who has significant problems with his health (He has heart problems and has had cancer which is now in remission).
In January 2008 the child commenced attending N School, after I had ruled on the dispute between the parties about which high school the child would attend.
On 29 April 2008 the child went to school without a uniform. The mother had left the child’s uniform at the school and there was a total breakdown of communication between the parents in respect of this matter.
By May 2008 the father had moved to a temporary accommodation C Street in the Blue Mountains.
In June 2008 the father moved to premises at P, a suburb of Sydney, which he assumed would be permanent accommodation. However, the father was informed shortly before the commencement of the hearing that the lease upon which his sublease depended had been terminated.
On 24 June 2008 Dr W saw the parties and the child in order to provide the Court with an updated report.

CREDIT

The mother gave answers in a very straight forward way and was quick to make concessions which were seemingly against her interest.
The father was more inclined when giving his evidence to put his own spin on events, speaking in superlatives and using glossy terms. The accommodation at P is a good example. His description of that property does not correspond with an objective view as to what that property was like. I discuss below the exaggeration the father made to police of the child’s wish to kill himself in September 2006. I find that that is a product of his mental status which I discuss in more detail below.
I do not accept the father’s explanation as to how the child saw Dr W’s first report and how he saw my order about performing.
If there is any matter where the evidence of the mother conflicts with the evidence of the father, I prefer the version of the mother unless I indicate otherwise.

Incident on 8 February 2007

The child had been spending time with his father. He was due to return to his mother at 8pm. The child arrived home at about 9.05pm.
The child said to his mother, “I have decided to want to live with my dad. He told me that you will only let me see him for two hours a week and I don’t want that. I have been unhappy for years and years”. The child then said, “I am going to go now while I have the confidence. I am going to go tonight and walk to dad’s house”.
The mother then said to the child, “Come on, don’t be silly, we can talk about this, just come and have a shower. You must be feeling tired. [Child] this is something the court has to decide about and we just have to wait”. The child said, ‘I am going to leave now and walk to dad’s”. The child then ran from the mother’s home. The mother followed and observed the child getting into his father’s motor vehicle.
The father’s evidence was that his motor vehicle was parked a block away from the mother’s home. The father agreed that the child knew exactly where his father had parked the car.
It was clear that the father was complicit in the events of that night.
As set out above, the father on the next day made an application for the child to live with him. The mother made an application for a recovery order which was successful but the child was then returned to the mother’s care without the need for the recovery order to be executed.

THE PRESENT ARRANGEMENT IN RELATION TO THE CHILD’S TIME WITH HIS PARENTS

As set out above, pursuant to Order 3 made 18 December 2007 (as modified by Order 3 made 25 January 2008), the child spends equal time with both his parents during school term on a week about basis commencing after school Fridays. School holiday time is shared equally.

RICE & ASPLUND

Consent orders were made on 8 September 2005 by Le Poer Trench J.
Both parties agreed on 4 September 2007 that there had been sufficiently significant changes since that time to justify a rehearing of the matter. Those changes were:-
81.1.During the incident on 8 February 2007, the child, against his mother’s request, left his mother’s home to join his father in a waiting car. A recovery order had to be made by a Judicial Registrar.
81.2.As at 4 September 2007 the mother had made a firm decision to move to Sydney (which she has now done).

PARAMOUNT CONSIDERATION

In deciding what parenting orders to make for the child I must regard his best interests as my paramount consideration (s.60CA FLA).

PRIMARY CONSIDERATIONS

In determining those best interests I must primarily consider s. 60CC(2) FLA:
83.1.the benefit to the child of having a meaningful relationship with both of his parents;
83.2.the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
Counsel for the father emphasised what an abrupt change it would be for the child if the father was excluded from having what counsel for the father described as a meaningful involvement in the child’s life.
Dr W in his first report at page 21 under the heading “the benefit to the child of having a meaningful relationship with both parents” said:-
“In general, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. It is my view that these principles apply in this case.”
There is no issue of abuse, neglect or family violence in this case except for the form of the father’s emotional abuse of the child that Dr W referred to in his oral evidence and which is discussed below.

ADDITIONAL CONSIDERATIONS

The child’s views

I was asked by the father on 4 September 2007 to see the child in chambers because I was told that the child was intensely interested in what was happening during the court proceedings. I can understand his interest but I indicated that in the circumstances of this case I believe that it was important for me to have the feedback from an expert that would give me some information, not only about what the child was saying, but the context in which the child’s views were being expressed and what weight I should place on his expressed views.
As first expressed to Dr W, the child’s view was that he wanted to spend equal time with both parents but for his father to have “custody”.
Dr W said that there is no doubt that the child has felt that he wants to spend more time with his father for a long time, and for more than 12 months prior to the interviews for the first report. He has been articulating this quite clearly through others to his mother and more recently to her directly. Dr W formed the view that there are two issues for him. First, he genuinely wants to spend more time with his father and secondly, he feels pressure from both of his parents about his views, particularly from his father. Dr W said that he did not think his father has insight into this but in his view, some of this behaviour such as taking the child to the Police Station and waiting outside the mother’s home for the child to run away are examples of the father not taking an appropriate executive parenting role (Report 1, page 19).
It was put to Dr W by counsel for the father that if the child’s views were not listened to he would conclude that his views are of no worth. Dr W did not believe that that was a risk that should be given any particular weight. Dr W emphasised that the child is emotionally immature and he in fact wants to please both his parents.

The parents’ mental status

Father’s emotional status

The mother pressed for the inclusion of Dr M’s report. I did not allow that because Dr M was not going to be available to be tested on her evidence and Dr W in his first report, said that nothing was to be served by dwelling upon her diagnosis of the father. It was more important to look at the effect of the father’s behaviour. I do however have some evidence as to what Dr M had diagnosed. Dr W was aware of a prior diagnosis by Dr M. Dr W said however that he had received more information from the father than from the mother about what Dr M’s report contained. He said that Dr M had probably expressed the view that the father was a quite self-absorbed, if not narcissistic person. In the first report, Dr W said:
“I felt that a major shortcoming in [the father’s] emotional state is that he has a limited ability to empathise with the feelings and attitudes of others except to the extent that they resonate with his own, and that in [the child’s] case this blinds him into falling into the trap of letting [the child] feel that he is in charge of his life when the reality is that it is far better for [the child] to not be burdened by parent’s issues and to get about enjoying the remainder of his childhood.”
Dr W formed the view and I do too, that the father puts a positive spin on things and very much sees things from his own point of view.
In oral evidence Dr W agreed that the father probably had a narcissistic personality disorder and that it followed the father would not easily be able to focus on the concerns of others, nor have any insight in respect of the benefits that therapy might give him. Dr W inferred that a personality disorder of this type was inherently difficult to change by therapy.
On 14 September 2006 the father took the child to a police station. The COPS record for that occasion has been tendered by consent.
The COPS record of 14 September 2006 includes the following:
“Police became concerned when a disclosure was made by the father that the child had been indicating that these problems would not exist if it weren’t for him. He has told his father that he wanted to kill himself.”
As a result of what the father said that the child said, a report was made by the police to the Department of Community Services (“DoCS”). There was no information tendered by either party or the Independent Children's Lawyer during the hearing that would indicate that DoCS did anything as a result of that notification. The father did not mention that the child had said this to him in any of his affidavits or in the interviews with Dr W. His explanation for not doing so was that he did not want to be overly melodramatic. The father explained that the child had said to him something along the lines that the conflict between this parents would not exist or continue if he was not around. It seems that the father was acknowledging that he had been over dramatic in what he did at the police station on 14 September 2006. I do not accept that the father put to the police officer at the Police Station on 14 September 2006 the child’s words in the same way as he put them to me, nor do I infer that the father indicated to the police officer that the comments made by the child should not be given a sinister and serious interpretation. I find that this is an example of the father using spin to his advantage, a spin which he realised would not play well if repeated for the purposes of these proceedings.
The father is a charismatic character but that charisma can be mentally draining to those around him who have to deal with some level of fantasy spun by him.

Mother’s mental status

The mother was described by Dr W as anxious, insecure and not all that confident. This was consistent with her demeanour in the witness box and the manner in which she answered questions in the witness box. However, Dr W also said that the mother was focused and organised.
Counsel for the father asked Dr W about an allegation made by the mother in 1996 and 1997 that inferred that there may have been some sexual abuse by the father of the child. This allegation received no attention at all in the hearing. Neither party was asked any question about it, nor so far as I know any evidence given by either party about it. Dr W made some comment about it clearly being washing behaviour and most parents would recognise “washing behaviour” for what it was. It appeared however that at one point the mother had a state of mind which may have put a more sinister interpretation on that activity. Whatever happened was more than ten years ago and has no relevance at the present time save perhaps that it may have been a product of the same anxious and insecure affect that the mother still portrays.

Relationships

With father

In his oral evidence Dr W said some positive things about the father. He said he is an interesting man; he is quite an imaginative man; he is a bright man; he has done some interesting things in his life and he has often an interesting approach to things which is not always a bad approach. Dr W said that the father will bring colour into the child’s life as well, and as the child gets older he will be able to enjoy those positive aspects of his father’s character and distance himself from unreliable, self centred and selfish aspects of his father’s character.
Dr W said that there were two aspects to the child’s relationship with his father. There was both a genuine relationship and an artificial relationship. The artificial relationship was a destructive one which I shall more fully describe. There was however a genuine relationship that was not based on the exotic and the exciting.
Dr W was of the view that the child’s long term relationship with his father is at risk if the current situation is allowed to continue.
The father told Dr W that he knew instinctively that the child should be with him (Report 1, page 8).
Dr W said that the child has certainly gone through some very difficult periods of unhappiness in relation to the problems between his parents and he has probably aligned himself more strongly with his father, although Dr W opines that the child’s level of alignment with his mother is more significant than the father appreciates (Report 1, page 19).
At page 20 of Dr W’s first report he says:
“...I observed between the two [the child and the father] of them it seemed indicative of the type of relationship one observes between a charismatic leader and an adoring disciple. This type of relationship does not promote true independence of both individuals but in fact reflects dependence an is often associated with inculcation of the submissive individual by the dominant individual’s views…The problem is that again in contrast to the father’s position, there is not a clear psychological separation between them and there is a risk that [the father] is to some extent living out his life through his son....
...In my view [the child’s] relationship with his mother has the type of depth to it which will make it a more enduring, sustaining and adaptive relationship over time whereas [the father’s] relationship with [the child] is in significant aspects a one way relationship in that a variety of subtle ways, it is always [the father] who is the decision maker, and it has a fragility to it that in my view will not adapt well to conflict.”
The father conceded to me that he had the ability to heavily influence the child’s behaviour (although when he realised the ramification of saying that, that is he could prevent the child running away from his mother, he quickly added that he did not know how long he could do that for as the child got older). Dr W was of the opinion (and I accept his opinion) that certainly at the current time the father has a clear ability to control the child’s behaviour. That is, if the father took it into his head to support the orders that were made in this case then they would happen without the child “voting with his feet”. Dr W said that the child has an eagerness to please both his parents. The mother recognises this. In Dr W’s view the father exploits this.
Dr W was of the opinion that at some point the child will come out from under his father’s shadow.
Dr W was of the opinion that the father played with the child’s mind and filled the child’s head with ideas that the child thinks are his own ideas but are in fact the father’s ideas. Dr W explained that this type of toxicity was a form of emotional abuse which could be labelled “corruption” (not in the sense that this word would normally be used).
Dr W said that the dynamic between the child and his father was a rare one (being a disciple; highly manipulative; getting into his son’s head).

The members of the father’s new proposed household

The father’s most recent proposal is to obtain accommodation with a woman named Ms BY and her 14 year old daughter. The father has only known Ms BY a short time. The father says that there is no intimate relationship between he and Ms BY. It seems that V, Ms BY’s 14 year old daughter, was the victim of a rape when she was 13 years of age. That trauma is ongoing. V has had to go to a distance education school to be protected from victimisation from people who are associated with the perpetrator of the rape. In a very short period of time (a matter of a couple of weeks) it appears that the child has formed a friendship with V (to the extent that the mother gave evidence that V was making contact with the child on his mobile phone late at night).
Dr W opined that this proposal by the father was unsatisfactory on a number of levels.

With mother

Dr W said in this first report (page 6):-
“[The mother] and [the child] interacted very actively when I saw them together. Mostly this was a warm, good humoured interchange, or [the child] would add a comment to what [the mother] was telling me, but on several occasions [the child] became a little irritated with his mother, challenging her versions of events. This was mainly in the area of [the child] wanting to spend more time with his father. Even here however, he was acceptably respectful towards his mother. Overall he seemed quite relaxed and comfortable with his mother and she with him.”

Willingness to encourage relationships

Apart from the incident on 8 February 2007, there is no evidence of either party has failed to encourage the child to have a relationship with the other parent.

Parental capacity

Dr W described the mother’s abilities and qualities as prosaic (meaning common place and matter of fact) and the father’s as romantic.
There is no issue that both parents can physically care for the child. There was no dispute the father was a good cook. The mother’s involvement in her profession provides the child with a positive role model.
The payment of child support by one parent to the other was not a focus during this case and is something upon which I do not place great weight.
I accept Dr W’s view that the mother and father have extremely different experience of and views about parenting. The mother has a fairly conventional background and she has maintained close and stable ties with her family throughout her life. The philosophy of parenting includes clear generational boundaries and the responsibility of parents to make decisions for their children driven primarily by a broad view of children’s welfare rather than the narrow and egocentric perspective of the child’s wishes.
It is Dr W’s view that the risk for the child is that in emulating his father’s approach to relationships, work and the world in general, there is no guarantee that the child is going to feel satisfied with the result as his father does and that there may well be a quite high risk for the child of relationship instability, employment instability and residential instability. His mother on the other hand offers a far more conventional model of family life which in a general sense is probably related to a lower risk of negative outcomes that I have outlined above (Report 1, page 22).
I indicated to the parties on 4 September 2007 that apart from informing the child about the decisions that had been reached they should not talk to the child about what was happening in the court case.
Whilst the child was with his father, the child read Dr W’s first report. I found the father’s comments about how that had happened less than convincing.
In Dr W’s second report, Dr W said at page 2 of his second report:-
“[The father] told me that [the mother] had obtained a court order which limited their [performances] to Kings Cross. [The child] began to elaborate on what sounded to me like the actual legal terms used in the order, making what sounded to me to be a derisory reference to the order itself as well as making fun of the cumbersome legalistic terms. [The father] seemed to quickly interject to emphasise another aspect of their [performance]. I was left with the impression that [the child] had actually read this particular order and that he and his father shared a view that it was in some way ludicrous.”
I had on more than one occasion during the hearing cautioned the father about involving the child in the litigious process. When I asked him about the part of Dr W’s report referred to immediately above, I was again less than convinced by the father’s explanation. He said he was not sure how the child could have seen the order, maybe it was that the child accessed his emails. He ended his evidence on the point by suggesting it may have been that the child saw the order in his mother’s household.
I find that the father has, against my requests, inappropriately involved the child in the process of litigation that is taking place between his parents.

Mother’s capacity

On the weekend when the child was with his father after his father had moved to P, the mother as usual travelled to the Blue Mountains. She had the child’s school books. She had anticipated that they would be collected from her by the father during the weekend as she was unaware that the father had moved.
It turned out however that on the Wednesday before, on the father’s instructions, the father’s lawyers had written to the mother’s lawyers informing them about the father’s move to P. Notwithstanding the fact that the mother’s lawyer sent the mother an email on the Thursday about this move, the mother had not opened her email from her lawyer on either Thursday or Friday. Her explanation was that she has a stressful job and she does not necessarily open all her emails. The father relied upon this omission as evidence that the mother is not a totally organised person and I accept that is so. However, I find on an overall basis that the mother has a greater capacity to order her priorities and to be organised than the father.
Dr W was of the opinion that the mother had in the past done things which were self serving but opined that the degree to which she behaved in this manner was relatively insignificant when compared to the father’s behaviour.

Accommodation

The father’s evidence on 4 September 2007 about his accommodation was a little ambivalent. He told me that he was involved in his business in the Blue Mountains as well as being involved with a band. I was left unclear at the end of the hearing as to what the future of his involvement in his business in the Blue Mountains actually was, although I got the clear impression that he at least in the short to medium term he had no intention of continuing that business in the Blue Mountains.
There was considerable evidence during the hearing about the history of the father’s last three places of accommodation.
Dr W said that the father’s own descriptions of the P place some doubt over their suitability and suggested that the responsibility should be placed on him to provide evidence of the suitability of his current residence and the two previous premises (Report 2, page 10).
It did not appear to me that the accommodation that the father had obtained at P was satisfactory. No internal photographs of that accommodation were provided, notwithstanding the requests in Dr W’s second report and in two pieces of correspondence from the mother’s lawyer and the Independent Children's Lawyer. It appears from descriptions given by the father that considerable internal work had to be done to bring the premises into a condition that would be considered reasonable for the child’s accommodation.
Without placing great emphasis on it, the father can be criticised for not responding fully to requests for him to provide details about those places.
Dr W in oral evidence said that the concerns from the history was the frequency of the moves which raised questions over the father’s capacity to fund proper accommodation in the future and prioritise his budget so as to provide a stable home base for the child. The second issue that arises was the suitability and stability of the accommodation itself. In the accommodation before P, the father was virtually squatting with the child’s music teacher and using the next door premises for privacy. Dr W raised concerns about whether or not his history pointed in the direction of the child being with his father or even being with his father on a week about basis. In relation to the latter proposition, Dr W commented that it is unstable enough moving from house to house on a week about basis without having the overlay of frequent moves in accommodation with one parent.
The father’s evidence is that he was not to know that after seven years of Ms BY living in the one premises she would be evicted in what was a timing that was unfortunate given the date set for the final stages of this hearing.
It was asserted on a number of occasions by the father that he had moved only one time more than the mother during the child’s lifetime. However, when an analysis was done, that proposition was not accurate. It is probable that the father has moved about twice as many times as the mother.
I find that the father’s move to P lacked considerable judgment.
The father will have to leave his current premises by the end of September.
I accept the submission made by counsel for the father that it is not places that matter so much as people. However, the style of accommodation that the father has offered the child does add to the overall picture of the father not focusing on organisational detail. In addition, the new uncertain proposals in relation to future accommodation with Ms BY and her daughter I find is unsatisfactory as an arrangement in which the child would be involved for significant periods of time. Counsel for the father submitted that the child did not need any protection from issues that arose from the father’s lifestyle but I am unable to agree with that submission.

The child’s schooling

On 4 September 2007 the father strongly pressed for the child to be allowed to attempt to obtain a scholarship at D College. The mother had agreed for the child to go to an open day there and to go for the scholarship exams and had agreed to facilitate some extra tutoring for the child for his music.
In September 2007 the father told me that if the child got to go to D College then he would move down from the mountains so that the child’s travel time back to him would only be an hour and a half.
However, the father’s approach to D College is an example of the dysfunction between the parents. The father had obtained brochures from D College in relation to their open day and had sent them home with the child before the mother had any conversation with the father about the possibility of the child going to D College. The child in fact did not show the material to his mother so she never actually got to look at it. By the time the child went for the scholarship there were none available. Nonetheless the mother agreed to fund D College and then for reasons referred to below that was unable to happen and the arrangement had to be changed.
There was a hearing before me on 21 January 2008. The matter had specifically been relisted at the request of the mother on the basis that her financial circumstances as indicated to me in December had not materialised. She had indicated to me in December that she expected her annual income would be $70,000 a year and D College fees would be $16,000 a year. The D College fees turned out to be about $20,000 and her remuneration contract was less than expected.
For the interim hearing in January 2008 the father had originally proposed LE School as a school the child could attend but it had become no longer an option because enrolments had closed. The father proposed that the child attend a large school at O. The mother proposed N School. For reasons I gave on 25 January 2008 I made an order that the child attend N School. In summary, I selected N School because:-
142.1.It seemed to have a better facility to cater for the child’s talents in the performing arts;
142.2.The father on the previous occasion had indicated that he would drive from O to T to pick the child up from the train in the week that the child was with him and I had no evidence that that arrangement would work if the child was at O School in the week that he had to come to his mother’s, so N School had the advantage of the child not having to travel alone as much.
The child’s schooling in 2008 has been less than impressive. His first term school report could only be considered as quite poor.
Exhibit L contains information from N School relevant to the child’s performance in 2008. The child’s English teacher comments on how very disorganised he is and how he has developed a bad habit of being inappropriate in an effort to be “funny”. The child’s mathematics teacher comments upon his lack of organisational skills and his tardiness in packing up at the end of a lesson. Whilst he acknowledges the child’s ability he comments on his lack of focus. The child’s science teacher comments on the fact that the child is often late to class, there are problems with him bringing equipment and books and there are problems with incomplete homework. The child had failed to submit an assessment task. The child’s geography teacher comments that the child finds getting organised very difficult. His sheets are disorganised, he finds it difficult to complete all class tasks on time and he is often late to class. The child’s performance teacher says that the child chooses when he will participate and comments upon his lack of commitment and focus.
The child’s history teacher says he “is always late for class”. He comments that the child leaves class “to go to the toilet” for 10 to 15 minutes at a time and often makes inappropriate comments. There is a note also that the child failed to hand in the history assignment on the family tree.
There was some evidence given about this assignment. I am satisfied that during first term both parents were unaware that it was due. The mother only became aware towards the last few days of the first term. I am satisfied that given that the child had decided that he wanted to explore his father’s side of the family, particularly the pirate on the father’s side, the mother had left it to the father to organise the assignment with the child. It is clear however that even given the extended time (after the child had been given a “zero” mark for lateness) the assignment still did not get handed in and the father was very vague as to why that was.
The child has had some problems with his French teacher and both parents have spoken to him. His French teacher comments about the child not bringing the correct equipment to class and preferring to do his own thing rather than seriously attempting the work that everybody else is doing. In addition, he is disruptive in class.
The child’s technology teacher comments upon him forgetting to bring his apron to class and his lack of organisation, but otherwise gives him a good report. Even in music, the child’s music teacher reports that the child is easily distracted, but his marks in music and visual arts are the best in all his subjects. The child’s visual arts teacher comments that he is a bit disorganised and often late for class but scored the child well on attitude and behaviour.
There is on the school file letters to the mother of unsatisfactory progress from the child’s personal development, health and PE teacher (two unsatisfactory progress reports – one on 25 March 2008 and one on 10 June 2008), from his French teacher and from his science teacher.
Optimistically the father predicts that the child’s second term school report which was not available to me at the final stage of the hearing, will be far more positive. However, the mother expressed the view that she believed that it would be similar to the first term’s report. On balance, I accept the mother’s prediction in that regard.
The child went to B School immediately before entering high school this year. His 2006 report is very good. I consider it no coincidence that 2006 was a year where there was virtually no litigation between the parties about the child. Earlier tests indicate that the child is a boy of some considerable intelligence. The child was selected for an opportunity class in year 5 and I find has the potential to be a very good student. His under performance at school in 2008 therefore is all the more stark.
Whilst some of the child’s problems may be attributable both to moving from the less structured environment of B School into a more structured high school and to moving from primary school to high school, I have formed the view that the child’s high school scholastic performance so far is primarily the result of the dysfunction between the parents in relation to their ability to communicate with one another and the dislocation the child feels by moving between two uncooperative parents on a weekly basis. Dr W commented that schools such as N School were used to getting children from schools with less structure than mainstream schools (schools such as B School).
The father was of the view that the child had a prodigious musical talent. The emphasis on this part of the child’s ability by his father may also be taking away from academic performance.
It was indicative of the father’s general attitude to the child’s school work that he made virtually no inquiry of the child as to whether or not he was getting to school on time, notwithstanding the considerable distance that the child had to travel each day from the Blue Mountains to get to school when he was living with his father. Counsel for the father obtained a concession from the mother in her oral evidence that for all the mother knew, the child might have dawdled to school, notwithstanding that he left home in time to walk to school.
I accept however the mother’s evidence that the child seems not to be dawdling home from school when he is with her as he arrives at her office at a time consistent with the child travelling from the end of school to her office in a expeditious way. Similarly, she gave hearsay evidence that her mother reports the child travelling home to their home in a way which does not indicate tardiness.
Whilst the father was asked questions about the number of school days that the child missed whilst in his care, I found nothing unusual about the time that the child was away or the explanations that were given in relation to the child’s absences from school whilst in his father’s care.
I find the child is not in any current regular routine in respect of his education. Hopefully the orders that I make will create an ability for there to be more structure in the child’s school work and will lead to a greater chance of the child completing his year 12 education.
The father says that he has an absolute commitment to the child completing year 12. However, that statement by him has to be weighed against the other evidence. I find that the father has a more casual approach than the mother to the child’s education. I am concerned that the father currently has the child’s priorities out of order, focusing on what the father sees as the child’s prodigious talent. Dr W said it was significant that, in an unguarded moment on the child’s part, he disclosed that he would prefer to do art at school than music.
I find there is a serious risk that the child may waste his academic abilities if the current arrangements are allowed to continue.
The child has an important five and a half years of education ahead of him. There is a significant risk that at the current time he will not see it through to the end.
I accept that the father believes what he says about having a resolve to ensure that the child makes it through to the end of year 12. However, I find on balance there is a question as to his capacity to execute his plans in that regard.
I agree with Dr W’s comment that his home needs organisation and that means more than having his heart in the right place.

Likelihood of further proceedings

The child told Dr W he wants the court case to be over and he does not want there to be another court case (Report 1, page 17).
I have formed the view that it is in the child’s best interests for any future application concerning him to be initially brought back before me if the urgency of any particular event makes it feasible for that to happen.
I acknowledge that there is a high risk in this case that the father will engineer a situation similar to the event on 8 February 2007. When the father gave evidence before me on 4 September 2007 he candidly said that if he did not get the result that he was looking for from these proceedings then he would simply make another application in two years time.
I have found that the father has the capacity to influence the child in a way that would have the child behave as the father requires him to behave. I expect that both parents will abide by the orders that I have made. The orders also set out the consequences to either party if orders are not complied with.
The father’s oral evidence is that fairly soon he will not be able to control the child’s behaviour. I do not accept that evidence. His evidence was that the hcild would get sick of his mother, run away from her and become a street child if the father was prohibited from taking the child in. Again, I accept Dr W’s evidence that absent the father being complicit in the child breaching the orders then it is unlikely that he will run away from his mother. Dr W certainly gave encouraging evidence that predicts that the child would not adopt a third alternative if he was unable to live with his father.

Equal shared parental responsibility

The father seeks an order for equal shared parental responsibility. This was supported by the Independent Children's Lawyer. Counsel for the mother made no submissions to the contrary.
Section 61DA(1) FLA requires me to apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility and I will make an order in those terms.
Section 65DAA FLA requires me to consider whether or not the child spending equal time with each of his parents would be in his best interests and if not, to consider whether or not the child spending substantial and significant time with each of his parents would be in the child’s best interests.
On 18 December 2007 I made an order on an interim basis that the child spend each alternate week with each of his parents.
I have formed the view, on the evidence, that that arrangement is not working in the child’s best interests.
Section 65DAA(5) FLA requires me to look at a number of matters when determining for the purposes of s.65DAA(1) and (2) whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of his parents.
His parents now live within a distance from one another that would allow equal time or substantial and significant time arrangement to work. The father’s evidence is that he intends to relocate in the P or to the L area.
The parent’s current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of his parents can be tested by looking at how this has worked since December 2007. As I have said above, it has not worked in the child’s best interests in my view, particularly in relation to his academic performance during school term.
The parent’s current and future capacity to communicate with each other is highly problematic.
The child told Dr W that the situation with his family makes him sad and he feels like crying, particularly if there is another argument between his parents (Report 1, page 18).
On 4 September 2007 Ms EL, a family consultant, told me and the parties that it was very unhealthy for the child to be the person who was making the adult decisions about himself, particularly as he moved into adolescence. She spoke about the difficulties which were created for the child in circumstances where the parties simply did not talk to one another about anything. She recommended a communication book. I made such an order. However, I heard no evidence that that order had been successful in improving the flow of information between the parents. At the time that I was discussing that proposal I formed the clear impression that the father was not very interested in improving communication skills with the mother. He expressed a more positive attitude in the final stage of the hearing.
I accept the Independent Children's Lawyer’s submission that the child is clearly distressed about his parent’s inability to co-parent or even to have a line of communication. He has carried that difficulty with him since his earliest awareness.
In many ways it is not surprising that he has expressed a view aligning himself with one parent.
Any framework that I establish should have an eye to attempting to maximising the child’s educational chances.
Both parties have agreed to an order that they attend a post separation parenting program.
Notwithstanding the outcome of these proceedings, it is still very important for the child’s point of view that, if it is at all possible, his parents improve their skills so that they may be able to establish some form of communication between one another as the child’s parents. The parties have made three previous unsuccessful attempts to do this. The prognosis therefore for this endeavour is not particular hopeful. I acknowledge that the father’s probable personality disorder means that this process will be difficult. Dr W was of the view that it would be more appropriate for the next attempt to be made at a large organisation that may be more flexible and tolerant than an individual therapist who may give up more quickly and have no other alternatives to offer if an initial impasse is reached.
Given that both parties have agreed to try again, I am prepared to make that order.
Dr W warned against any order that I made being conditional upon the parties attending future programs together, nor should any order that I make be upon the assumption that there would be any improvement in the ability of the two parents to communicate in the future. Any such improvement of course would be a huge bonus for the child but not one that I can, on the current history, anticipate.
Section 65DAA(5)(d) FLA requires me to consider the impact of an equal time arrangement on the child. As I have already said, it is my view that the arrangement that has been in place since December has not worked in the child’s best interests and a different and more stable arrangement needs to be put in place.
I conclude that an equal time arrangement is not in the child’s best interests but the child should have substantial and significant time with his father. Whilst I am mindful that the opportunities for the child to have a relationship with his father will not be as great as they have been since I made an interim order for week about parenting, I find that a more restricted regime will still allow the child to have a meaningful relationship with his father.

CONCLUSION

My paramount consideration is to make parenting orders that are in the child’s best interests.
The strongest arguments in favour of making orders as sought by the father are the child’s expressed views and the possibility of further litigation.
This is a particularly difficult matter. The child clearly has a great deal of affection for both of his parents but he expresses a strong wish to spend most of his time with his father. I shared Dr W’s concerns that his father has influenced the child strongly in this direction and that this has been done deliberately.
I agree with Dr W’s view that the child is almost completely in the thrall of his father, who offers an attractive indulgent and exciting lifestyle.
The father’s proposal would be for the child to move between his parents more often than he currently does. This is on the basis that the father is of the view that the child can only stand his mother for a few days at a time. I do not accept this.
I believe the mother’s relationship with the child is more robust than the father asserts. I accept Dr W’s opinion that the father probably has a narcissistic personality disorder and it is going to be difficult to change that in the future even if the father had the insight that therapy would help him with that disorder. The father’s mental status impacts upon his relationship with the child and I have already discussed that in detail above. There are problems in relation to the new proposals that the father has in respect of who would constitute members of the father’s future household.
It is my view that the mother’s capacity as a parent offers the child more stability and structure. I have grave concerns about the child’s future academic opportunities should the father’s proposal be implemented.
I don’t believe that parents at the current time can operate a equal time arrangement.
The Independent Children's Lawyer’s proposal in fact technically meets the requirements of substantial and significant time as defined in s.65DAA(3) FLA. I find it is in the child’s best interests that I make orders in accordance with the Independent Children's Lawyer’s proposal for the time that the child would spend with his father during school term.

Performances

On 25 January 2008 (Order 4) as set out above I made an order in the following terms:
4.Pending further order, the father not engage [the child] in any [performance] activities apart from one occasion a fortnight on a Friday to conclude no later than 8.30pm.
This order allowed the father and the child the flexibility to continue to perform at Kings Cross.
When making that order I made it clear that I had no evidence before me that performing at Kings Cross up to 8.30pm on a Friday night was any more risky than performing in the Blue Mountains.
Dr W however has given powerful evidence that there are considerable risks in performing at Kings Cross. He lived at Potts Point for many years and was the head of psychiatric medicine at St Vincents Hospital for a considerable number of years. As such, Dr W had close connection with many of the agencies that provide services to the Kings Cross area, including the police at Kings Cross Police Station. Dr W indicated that he had gained a considerable knowledge of the underbelly of the Kings Cross world. Whilst he did not currently have the previous extremely close connections with the Kings Cross community, he said he had been around the area recently and in his observation, not very much has changed. He said in fact some of the old faces are still there. I am satisfied that Dr W had sufficient experience to express the opinions which I refer to below.
The father gives evidence that he and the child perform at Kings Cross between the hours of 5.00pm and 7.30pm, notwithstanding that my order was 8.30pm; this order was made in circumstances where the husband wanted to finish at a later time than that. The father categorised the crowd that frequents Kings Cross during the hours that he performs as families and commuters.
Dr W in commenting on that categorisation was of a very different view. He conceded that during those hours the area was extremely busy with commuters. He said that alone raised some questions in his mind as to how easy it would be for the father to care for the child’s safety given the sheer volume of the traffic coming out of Kings Cross Railway Station at that time. More importantly however, he said that there was a high risk of the child and his father as performers being mugged or robbed by other performers who had drug habits or by other persons who had drug habits. He said that there was a significant number of people from the underbelly of the Kings Cross world attempting to feed from the same crowd that the child and his father have to date found lucrative. Dr W said that there were people at Kings Cross who had serious drug habits and who used busking as a form of begging. It was his opinion that Kings Cross was one venue where there was an amount of risk associated with performing.
There was another matter that causes me disquiet in relation to the performance activities on a Friday night at Kings Cross. The father seeks that no order be made restricting the location of performances and the order I made allowed he and the child to perform at Kings Cross. One of the reasons it was the father’s preferred option is that it was the most lucrative venue for the child and his father in terms of financial reward. The father told me when we were discussing this issue initially that he had set up a trust account for the child and on more than one occasion. He asserted that he received no financial benefit from the activity whatsoever (apart from perhaps a share in a Thai meal on the way home on Friday night). The trust account however is that in name only. It currently has $300 in it. It has been used to buy the child two different musical instruments, an iPod to the value of a couple of hundred dollars and to fund a trip to Dreamworld.
The mother’s concern was that the more lucrative and higher risk activity at Kings Cross was teaching the child bad lessons about the value of money and the effort which most people need to expend in order to earn money. I share that concern.
The other disquieting thing about performance activities is how the father represented the interim order that I made. In oral evidence the father said words to the effect that he had told the child:-
“Your mother took us to court over it [performance] and we are only able to do it once a fortnight”.
The father said that the child’s reaction was to be pretty angry because he did want more opportunities to perform. I have referred elsewhere to Dr W’s evidence that it seemed the child had seen the injunctive order which I made.
It is my view that, given the evidence I now have, it was probably inappropriate of me to have made the interim order that I did, which put no restriction as to location on performances and that allowed the child and his father to perform at Kings Cross.
The child clearly however enjoys performing and I accept his father’s view that it has the benefit of giving the child an opportunity to hone his skills before a live audience. That is something that I see as providing a considerable benefit to the child.
Dr W acknowledged that there is a tradition in some families of performance and he observed that one only had to go to certain locations in the city on a Sunday to know that. No one challenged that observation by him.
Dr W also said it was not uncommon for children who go to schools that emphasise the performing arts for there to be peer activities with children as group performance.
Counsel for the father submitted that the father wanted the child to be able to perform at Kings Cross but also said that he wanted the child to be able to perform at premises where children could attend and perform and also at festivals. The father wanted no restriction on frequency.
Counsel for the mother, in final submissions, indicated that he had instructions from the mother to agree to a limited form of perforamnce during daylight hours at venues R and Y and at festivals. I think that is an appropriate concession made by the mother acknowledging the benefit that the child would receive from those types of activities.
I also accept that, if the opportunity arose, the child could perform with a group of other children from his school, as a peer activity. He should not perform at premises where alcohol is sold.

The change of the child’s surname

The father would like the child to have his surname changed from Carrington to Carrington-Chapman.
There is a Rice & Asplund (1979) FLC 90-725 issue that needs to be considered in relation to the issues surrounding the child’s surname.
In January 2001 Chisholm J had dealt with a controversy between the parties in relation to the child’s surname. In his judgment Chisholm J commented on a copy of the birth certificate (which is in evidence before me).
Chisholm J says the following at paragraphs 5 and 6 of his judgment:
5.The background to this particular matter does not appear to be essentially in controversy. I have no doubt that the birth certificate was filed at an earlier stage of the proceedings but both parties have accepted that I should rely on a copy of the birth certificate that was handed to me during the proceedings and which I will place with the file. That birth certificate, consistently with the evidence of the parties shows the child’s name at the present time as [H Chapman], being his Christian or given names, and [Carrington] being his family name. The certificate indicates that the birth was registered on 10 February 1998, this being a considerable time after his birth on […]July 1995. The certificate also indicates that the full name of [the child] was previously recorded as [H E Carrington-Chapman], but it seems that this change was made on 28 September 1999.
6.It seems clear that this change was brought about by the mother. Her evidence, in brief, is that the father did not co-operate in the period following [the child’s] birth to do what was necessary to include him in the birth certificate and that in fact the birth certificate was not issued until 1998. At that time, as I understand it, the mother says that the litigation between the parties was pending and she, on legal advice, had the birth certificate taken out in the names that I have indicated. Since then, it is clear, she has used the surname [Carrington] for the child on a day to day basis, and she had the name changed in the way I have indicated in or about September 1999. The name […] was added (it was a name of another relative of the mother’s).
I am satisfied that there have been significant changes since Justice Chisholm considered the matter in January 2001. Those changes primarily centre around what has been happening in relation to the child’s surname, particularly when he is with his father. I am of the view that there is at least an arguably case to be made that leaving the decision up to each parent as to what surname the child will use when he is with that parent no longer serves the child well and it is not in his best interests. Accordingly the matter can be looked at afresh by me.
In his affidavit sworn 6 June 2008 the father says that his primarily concern was that the child’s name “[H Carrington]” sounded all too much like a violent ritual act known in the English language as A…. The father’s evidence was that the child had told him that he had been teased with the name “A…” at school during 2008. The father says that he is concerned that the child may now and potentially could at some future time be the brunt of school yard jokes revolving around those similarities of name.
He also says that the child has been asking his father if he can change his name to Chapman and that he plays in a band under the name of Chapman. The father says that when the child is performing he uses the name Chapman.
On two occasions during the June 2008 interview Dr W asked the child about his views on his surname. The child first told Dr W that his name was Carrington-Chapman now. He said that he used to like it but then he found out that it meant a violent ritual in another language. A teacher had told him this at his last school. He told Dr W that he was teased about it at school, then he said that he is not really teased. He said that, at his current school, he is not particularly targeted about this but he said that it is unpleasant to know that some of the children might be thinking that.
Dr W asked the child about this matter when he saw him in June this year. The child’s expressed view was that he would like to be known as H Carrington-Chapman. When Dr W asked him how that was going to get around the foreign ritual reference, the child seemed to think people would use the longer surname.
What the child told Dr W is not entirely consistent with the father’s evidence about the child being directly teased about the name at N School during 2008.
In Fooks v McCarthy (1994) FLC 92-450 at page 429, Warnick J said:-
“There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.”
That statement is consistent with subsequent statements in Flanagan v Handcock (2001) FLC 93-074.
In determining what is in the child’s best interests I must consider the matters set out in s.60CC FLA and the objects and underlying principles of the Act.
The controversy over the surname is, in my view, another example of an issue which is far more important to the father than it is to the child. That is not to say that the child has not taken up his father’s cause. It is done so however far less enthusiastically than his father has.
I find that it is in the child’s best interests not to make any change to his birth certificate and to injunct the father from doing anything that would encourage the child to use a surname other than the surname that has been registered on his birth certificate since 10 February 1998.

Counselling for the child

Dr W said the child would benefit from counselling with an appropriately trained professional, either a child psychiatrist or child clinical psychologist. Particularly if this counselling was to be completely privileged (Report 1, page 19 and oral evidence).

The eight week moratorium

The wife in the application that she sought at the commencement of the final stage of the hearing suggested that any order changing the current week about arrangement so that the child came to live with her most of the time should be coupled with an order that there not be any face to face between the child and his father during a moratorium period. Dr W was confronted with that idea in the witness box and he thought over it, clearly finding it a difficult matter to comment upon. The source of his reticence was that he had no confidence in the father as to how the father would use such an order to undermine the child’s relationship with his mother. He had little doubt that the child would initially be angry and blame his mother for such an order and would react badly against it and that there would initially be a difficult time. Dr W was of the opinion that he did not think the child would run away from his mother, particularly if he knew that the moratorium was for a set time and that his time with his father would recommence. This, he said, was because he has a close relationship with his mother and notwithstanding his expressed views it is probably where his heart is.
In concluding his reflection, Dr W said that he was not in a position to endorse such a recommendation but he could see that it might provide some benefits in re-establishing the child with his mother and might get him into some good habits at school.
Counsel for the father submitted that it would be quite a shocking result for the child to have an order made that he could not see his father for a period of eight weeks. She inferred that it would be seen by the child as an order that punished him for aligning himself with his father.
The Independent Children's Lawyer supports the concept of an eight week moratorium. I conclude the potential benefit for the child outweighs the potential negatives and I am prepared to make an order in the terms sought by the Independent Children's Lawyer.

The proposed trip to the United States

The father indicated that he and the child had been discussing a trip of about four weeks to the southern states of the United States in the middle of 2009. This proposed tour was to be with two old and venerable blues musicians. No itinerary is set. There is no indication as to how the tour would be financed. The whole concept seemed to me to have an element of fantasy about it. I have no doubt, however, that the prospect of such a proposal would be highly attractive to the child and something that the child would be very enthusiastic about doing. It is also a possible source of cruel manipulation. The father would be aware that the mother would be quite resistant to the concept of such a tour, particularly given that it is likely to be fairly unstructured and relatively unfunded. It is also likely the father would use any resistance to the notion in a similar way to how he played back to the child the mother’s resistance to performance activities and the court’s restriction of those performance activities. Unless the parents can improve there decision making skills, any further application for the child to tour overseas next year is likely to be the subject of further litigation and should, if practicable, be relisted before me.

Independent Children's Lawyer to explain Orders and Reasons to the child

The Independent Children's Lawyer has agreed to speak to the child for the purposes of explaining the orders that I have made to the child and the reasons why I have made those orders.

I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date: 11 July 2008

[2008] FamCA 550

11 July 2008

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