Clovelly and Clovelly (No. 3)

[2010] FamCA 684

FAMILY COURT OF AUSTRALIA

CLOVELLY & CLOVELLY (NO. 3) [2010] FamCA 684

FAMILY LAW – CHILDREN – Best interests of the child – Interim orders pending final hearing

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 61C, 61DA(1), 61DA(2), 61DA(3), 61DA(4), 65DAA(1), 65DAA(2)

Collu & Rinaldo [2010] FamCAFC 53
MRR v GR [2010] HCA 4
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520

APPLICANT: Mr Clovelly

RESPONDENT: Ms Clovelly

FILE NUMBER: CAF 655 of 2005

DATE DELIVERED: 23 July 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 23 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented litigant

COUNSEL FOR THE RESPONDENT: Ms A. Tonkin

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission ACT

Orders

IT IS ORDERED THAT:

1. C, born … April 1999 (“the child”), will continue to live principally with her mother.

2. That her mother will have sole parental responsibility for the child until further order.

3. That the child will spend time with her father on each alternate weekend from after dance classes on Friday until her father returns her to school on the following Monday, or if the Monday is a public holiday, on the Tuesday.  Alternatively, if the weekend is a long weekend commencing with a Friday holiday then the period will be extended by the appropriate day at the beginning of the period that the child otherwise would spend with her father.  The weekends will commence this day, 23 July 2010, and will continue thereafter even during school holiday periods.  When there are school holiday periods, the return of the child by her father will be the B car park in the Australia Capital Territory at 8.30 am on the day on which the period that she has spent with her father concludes.

4. All other arrangements about the time that the child spends with her father are suspended until further order.

5. The finalisation of the Less Adversarial Trial between the parties is set down to occur on 1 and 2 November 2010, if both days are necessary.

6. Each party will file any affidavit upon which he or she seeks to rely on or before 4.00 pm on 13 October 2010 and will serve a copy upon the other party.

7. The parties may explore the possibility of the obtaining of further expert advice from an appropriately qualified person, however, if the parties have not reached agreement about the name of the expert, the expert’s availability, how the expert will be paid and the terms of reference for the expert on or before the time when the matter is next before me in relation to property matters on 6 August 2010, then no arrangements for an additional expert report will be made and no evidence from an additional expert will be received in the final proceedings.

8. The matters relating to the enforcement of the existing property orders are adjourned for further consideration on the issue of enforcement to 10.00am on 6 August 2010.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 655 of 2005

MR CLOVELLY

Applicant

And

MS CLOVELLY

Respondent

REASONS FOR JUDGMENT

1. These proceedings before me relate to the father’s application for more time with his daughter C (“the child”), born in April 1999, than is presently permitted by orders made by me by consent on 15 June 2007. 

2. Those orders provided that the child would live principally with her mother and would spend time with her father on each alternate weekend from after dance classes on Friday until her father returns her to school on the following Monday.  There were other provisions relating to holidays.

3. It was subsequently confirmed in an order by me made on 19 June 2009 that the time that the child would spend with her father during the shorter school holidays would be the first weekend of the school holidays and the two days immediately following that weekend, unless the parties otherwise agreed. 

4. It is fair to say that the arrangements have had their measure of difficulty in that the parents have not been able to agree on variations to the times that may have been appropriate for the child to spend with her father.  It is reasonable to say that calculating what the weekend would be the subject of the court orders would be of some difficulty.  The order I made on 15 June 2007 directed that the weekends would commence on 29 June 2007.  There has not been a great deal of agreement about what the weekends are to be ever since.

5. The present proceedings I have before me arise out of the release of the family report in the primary proceedings to be determined in due course.  The family report made certain recommendations after the interviews that occurred between the parents and with the child, and those recommendations appear in the paragraphs headed “Summary” on pages 10 and 11 of the report, and conclude with the following statement:

   Regardless of [the father’s] good intentions and the remarkable effort he has made in travelling from New Zealand to Canberra to spend time with [the child], it would sadly appear that [the child] has not managed to form a close emotional attachment to her father.  In general, it seems that there is not a good fit between [the father’s] parenting attitudes and the needs of [the child].  It is apparent that [the child] is feeling increasingly uneasy and resentful about being obliged to spend scheduled periods of time with her father.  She is of an age when her psychological energy should be directed to relationships and activities external to her family in order for her to attain the tasks necessary for her stage of development.  It would appear that she is better able to have this focus when in her mother’s care.  Given her stage of development, [the child] no longer wants to be centre stage in her parents’ ongoing conflict or be burdened with the task of appeasing her parents, in this case, her father.

6. The family reporter concluded as follows:

   It might best meet [the child’s] needs if she were to spend time with her father on a more flexible basis, such as spending, say, several hours on a Sunday with him for a meal or an outing.  In this way [the child] can maintain a relationship with her father, such that she is able to focus on her own interests and commitments, and such that her time with him might be more meaningful and enjoyable. 

7. The family reporter goes on to make comments about the travel that the child might have with her mother to Malaysia, and, at the time that that report was concluded in May 2010, it was thought that the child might be spending time exploring New Zealand with her father.  That does not seem to have occurred. 

8. This morning, when the matter was before the Court, the mother produced through her counsel some minutes of orders which she indicated were the orders that she wants to regulate the time that the child spends with each of them into the future.  Those minutes are comprehensive and clearly designed as the framework within which the finalisation of the hearing will occur.  At the same time orders were sought on behalf of the mother as interim orders to apply until such time as the finalisation of the proceedings later this year, or later than this year if certain events should take place.

9. I had indicated to the parties that I was prepared to make time available for the hearing of this matter on 16 and 17 August 2010, but the father declined that arrangement on the basis that he wanted a longer period in which he could obtain, he thought, either Legal Aid or some alternative means of being represented in the proceedings.  I then indicated that the next time that I would be likely to have available to deal with the matter would be on 1 and 2 November 2010. 

10. The question, therefore, if the matter is to proceed in November 2010, is what is to happen in the meantime.  Is the child to continue to see her father on each alternate weekend, as the orders presently prescribe, or is there to be a change to reflect, in essence, the recommendations made by the family consultant?  The situation is somewhat complicated by the fact that the father lives in New Zealand and travels to Australia for the purposes of spending time with the child.

11. That situation, in itself, is further complicated by the fact that the child  announced today that he was about to have his employment terminated in New Zealand and that it is probable that his last day of employment in New Zealand will be on 20 September 2010.  Thereafter, he would be returning to Australia.  At this point, the father has no arrangements about where he would live, what job, if any, he would have, or the terms and conditions of any employment he might seek.  That would tend to make the arrangements that he is seeking in his application before the Court – that primarily the child live with him and spend time with her mother, or that the time that the child spent with each of her parents should be shared equally, or that, ultimately, the child might live with her mother but spend substantial and significant time with her father –  difficult to assess.

12. The proceedings before me, even on an interim basis, are proceedings which fall within the definition of a parenting order under s 60CA of the Family Law Act1975 (Cth). In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration. In determining what is, or what are, the child’s best interests, and therefore what should be paramount, I am obliged to consider the matters set out in s 60CC(2) & s 60CC(3) of the Family Law Act 1975 (Cth).

13. There is a presumption, even in relation to interim matters,[1] contained in s 61DA of the Family Law Act1975 (Cth) which requires that, when I am making a parenting order in relation to a child, I must apply the presumption that it is in the best interest of the child for parents to have equal shared parental responsibility.[2] 

    [1] Family Law Act 1975 (Cth) s 61DA(3).

    [2] Family Law Act 1975 (Cth) s 61DA(1).

14. So far as I am aware, there is no order to that effect presently in existence for the child.  That would mean that the provisions of the Family Law Act 1975 (Cth), in relation to each of the parents having parental responsibility for her, must, at present, apply.[3] 

    [3] Family Law Act 1975 (Cth) s 61C; Marvel & Marvel (No. 2) [2010] FamCAFC 101, [94].

15. The presumption does not apply if there are reasonable grounds to believe that a parent of a child, or a person who lives with a parent of a child, has engaged in abuse of the child or family violence.[4]  In addition, (s 61DA(3)) when the Court is making an interim order, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied.  Finally, the presumption is rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility of the child.[5]

    [4] Family Law Act 1975 (Cth) s 61DA(2).

    [5] Family Law Act 1975 (Cth) s 61DA(4).

16. In this matter, for a variety of reasons, it is not in my opinion, appropriate that there should be an order for equal shared parental responsibility for the child, at least on an interim basis.  In my opinion, as this is an interim matter, I consider that it would not be appropriate in the circumstances for the presumption to be applied. 

17. My reasons, briefly, for coming to this conclusion are as follows.  First, the issue is not what rights each of the parents have, but rather what responsibilities and obligations they have.[6]  It is not the case that this is, in some way, a determination or an instance of people dividing the rights that they might have about a child, but rather what rights the child may have for the parents to share equally the responsibility that each of them has for her. 

    [6] Marvel & Marvel (No. 2) [2010] FamCAFC 101, [100].

18. In this instance, the parents have demonstrated over a long period their total inability to agree on almost any matter, apart from the fact that they both love the child and both want what is best for her.  However, neither is able, apparently, to put aside his or her views about any matter to enable a joint decision or a cooperative decision to be made.  In this regard, that would, in itself, in my opinion, militate against, and at least on an interim basis determine, the issue that the presumption should not apply and no such orders should be made.   

19. It does not seem to me that the statutory rebuttals of the presumption are relevant in this matter, namely, abuse or family violence. I am satisfied, as a result of my consideration of the other matters I am to take into account under s 60CC of the Family Law Act 1975 (Cth) (as to the child’s best interests), that the presumption should not apply.

20. As a consequence of my reaching that conclusion, it is unnecessary for me to consider (obligatorily) the issue, at this point, of whether the child should spend equal time with each of her parents, or should spend substantial and significant time with each of her parents, as is required by s 65DAA(1) and s 65DAA(2) of the Family Law Act 1975 (Cth).[7]  Nevertheless, that would not preclude me from making such an order if I considered it to be in the child’s best interests.  There is a certain circularity in the provisions of Part VII of the Family Law Act1975 (Cth), and it centres, primarily, on the matters that are set out in s 60CC which I am to take into account in determining what is in the child’s best interests.

    [7] See MRR v GR [2010] HCA 4, [13].

21. These considerations are divided into two separate sections:  one are so-called primary considerations, and the other are additional considerations

22. I propose to consider the matters that are referred to as additional considerations first.[8]  These matters are as follows (and I deal with only those that are relevant for the purposes of these interim proceedings, but which, nevertheless, bear upon my determination). 

    [8] Marvel & Marvel (No. 2) [2010] FamCAFC 101, [140]; see also Collu & Rinaldo [2010] FamCAFC 53, [334] – [335].

23. The first is any views expressed by the child and any factors, such as her maturity or level of understanding, that I believe are relevant to the weight that I should give to her views.[9]  In this instance, I have the evidence of the family consultant which expresses, in clear and unequivocal terms, the fact that she is satisfied that the child is expressing views about the time she spends with her father which are different from the arrangements that presently exist, and which the family consultant is satisfied are not the result of any particular coaching from her mother. In this regard, I note in paragraph 18 of the family consultant’s report the following statement:

    [The child] informs that she is aware her father believes her views are influenced by her mother.  Spontaneously and with some anger, [the child] remarks, ‘Mum hasn’t told me to say anything – she’s just said, ‘say what you want and what you feel’ – Mum wants me to be happy”.  She comments that her father might well believe that she is content in his care.  [The child] explains, “when I’m with him I pretend everything is okay –  that’s why he probably thinks everything is okay”.  She mentions that she wants her father and the judge to be aware of her feelings, however, expresses the concern that her father will be angry with her and that there will be repercussions.

    [9] Family Law Act 1975 (Cth) s 60CC(3)(a).

24. The family consultant, a person whose expertise I accept and am confident about in these proceedings, suggests that, with respect to the child’s level of maturity in relation to her expressed wishes:

    …she impresses as an eleven year old with strong views and determination.  In general, she presents as a confident, well-adjusted, and sociable young individual who is well-regarded by adults and her peers and who is well attaining the tasks of her developmental stage. 

25. The family consultant goes on to describe why she has come to that conclusion, and she expresses the view in paragraph 20 of her report that:

    Contrary to [the father’s] assertion, there is no indication that [the child’s] relationship with her mother is enmeshed. 

    By which she means that the two have become, in effect, “one voice” for these purposes.  In this regard, therefore, I accept that the child has expressed the view that she does not wish to continue with the arrangements presently in place about the time she spends with her father, and accept that the recommendation made by the family consultant is most closely aligned with the views expressed by the child.

26. The second matter I am to take into account is the nature of the relationship the child had with each of her parents and with other persons.[10]  In this regard, on this interim determination, there are at least four people who might fall into that category.  There is the mother and the father.  Then there is the father’s – and I am not quite sure how I should describe the relationship – it was described by Ms W as a “dating relationship”, but it has persisted for four years which suggests that, as far as Ms W is concerned, it is a relatively permanent relationship.  There is also, to some extent, the relationship between the child and Ms W’s daughter, who is about the same age as the child. 

    [10] Family Law Act 1975 (Cth) s 60CC(3)(b).

27. The child certainly has, both on the evidence of the mother, her own evidence, and from the observations of the family consultant, a close relationship with her mother based (so the family consultant suggests) on mutual affection and respect.  This bond between the mother and daughter is not one which causes the child or the mother to be emotionally dependent upon each other. 

28. The relationship that the child enjoys with her father is, on his evidence and that of his partner, a good and happy relationship which is firm and supportive.  That is a relationship which, on the mother’s evidence, is one the mother would want the child to have with her father.  It is less clear, from the observations that the family consultant made of the child with her father that the external observations of that relationship fit as comfortably within the father’s description of them as he might hope.   It is difficult, and I note the implied criticism from the father about this, for the family consultant to have formed a final view about these matters, particularly in relation to the relationship between the father and the child, in the relatively short time she had available.  In this regard, I am certainly influenced by the evidence of Ms W about the relationship.  I am satisfied that, on the balance of evidence, the relationship between the child and  her father is not as close as that between the child and her mother, nevertheless, it is an important relationship in her life.

29. The relationship the child enjoys with Ms W and her daughter is what one would hope and expect for in the circumstances.  I note that in the family report the child expressed enthusiasm for that relationship because she suggested to the family consultant that this, in someway, ameliorated the situation of the time she spent with her father.  In paragraph 17 I note the family consultant stated:

    …the times [the child] spends with her father are somewhat improved by the presence of his friend, Ms [W], and her daughter [T].  She informs, “everything we do together, [Ms W] and [T] are with us –  it’s kind of good when Dad’s around [Ms W], he doesn’t get angry with me.” 

30. The third matter I am to take into account is the willingness and ability of each of the child’s parents to facilitate a close and continuing relationship between the child and the other parent.[11]  That does not exist for either parent. While I accept that in theory, the mother would like that to occur, I do not think in practice that is the case.  It is certainly not the case that the father wants a close relationship between the child and her mother, even though he might also express that that is what he really wants.  Neither parent is prepared to put aside the animosity he or she feels towards the other parent to bring about a close and continuing relationship.  I cannot see that situation changing. 

    [11] Family Law Act 1975 (Cth) s 60CC(c).

1. If there were to be a change in the arrangements at the present point, the fourth matter I am to take into account is the likely effect that change would have upon the child, and the effect of separation from either of the parents would have upon the child.[12]  The father would have me continue the existing orders on the basis that not to do so would interfere, and I think I am fair in saying this, with his relationship with the child.  What is equally clear is that if, I were to implement as interim orders those orders being sought on a permanent basis, in the relatively short time, between now and the final hearing, there would be unlikely to be any significant effect upon the long-term relationship that the child would have with her father.  All in all, this factor is unlikely to bear strongly upon any determination I make at this point.

   [12] Family Law Act 1975 (Cth) s 60CC(d).

2. The practical difficulty and expense of the child spending time with and communicating with her father is another matter I am to take into account.[13]  The father travels from New Zealand at present.  If I were to implement the arrangements that the family consultant has recommended, he would be travelling from New Zealand to Australia on a regular basis to spend a few hours with his daughter.  That would be a difficulty and expense, so far as the father is concerned.  It is a factor I can properly take into account. 

   [13] Family Law Act 1975 (Cth) s 60CC(e).

3. I am to take account of the capacity for each of the child’s parents and other people to provide for her needs, including her emotional and intellectual needs.[14]  There is no doubt that the evidence of the family consultant is that, at present, the father is incapable, (and I use the word deliberately), of having sufficient empathy and understanding of the child’s emotional needs to adequately provide for them.

   [14] Family Law Act 1975 (Cth) s 60CC(3)(f).

4. The family consultant has also observed that, in contradistinction, the relationship between the child and her mother does provide that emotional and, to some extent, psychological and intellectual support. 

5. There is a question, which is more a long-term question, about the lifestyle, culture, and traditions of the child and the ability on either parent to support those considerations.[15]  I do not believe it is appropriate on an interim basis to consider this.  It is an issue which should be determined in the final hearing whether the child should be able to enjoy time with her relatives in Malaysia.  That situation is complicated by the fact that the father does not believe that the mother will return from Malaysia with the child.  As a consequence, given that Malaysia is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the father has argued that it is inappropriate for the child be permitted to travel there with her mother.  That is notwithstanding that he also wishes to have the opportunity to take the child overseas at different times.  This is a matter for a final hearing, not a matter for an interim hearing, and I will deal with it in due course.

   [15] Family Law Act 1975 (Cth) s 60CC(3)(g).

6. I am to take into account the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.[16]  This is a matter of hot dispute between them.  Each party says the other has gone out of his or her way to do something about disrupting or destroying the relationship that the child has with the other parent.  Each of them has exhibited an ability to put his or her own needs ahead, (or perhaps what each considers to be the child’s needs in some cases – but frequently what is a reflection of their own needs), of what the child really needs. 

   [16] Family Law Act 1975 (Cth) s 60CC(3)(i).

7. In this regard, it is interesting to observe the e‑mail that the father sent to the mother about attending a party for the child.  In this e-mail, he indicated that, as he was paying child support, it was appropriate that if the child were with him and if they were attending the party, the mother should buy the present for the party.  I find that pettiness in that context quite extraordinary and an adverse reflection upon the father’s idea about his responsibilities as a parent. 

8. I am not satisfied at this stage that any matters about family violence[17] bear in any reasonable way upon any determination I should make.  As these are interim orders, it is clear there will be further proceedings in due course.

   [17] Family Law Act 1975 (Cth) s 60CC(3)(j) & s 60CC(3)(k).

9. Taking all those matters into account, I return then to what are regarded as the primary considerations for determining what is in the child’s best interests. Those are that I am to take into account the benefit to the child in having a meaningful relationship with both of her parents,[18] and the need to protect her from physical or psychological harm, or from being subjected to or exposed to abuse, neglect, or family violence.[19]  These matters, which were referred to by Brown J (as she then was) as the “twin pillars”[20] upon which Part VII of the Family Law Act 1975 (Cth) is built, have only limited relevance to the matter before me this day.

   [18] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [19] Family Law Act 1975 (Cth) s 60CC(2)(b).

   [20] Mazorski & Albright [2007] FamCA 520, [3]

10. There is a need, to some extent, to protect the child from the psychological harm of forcing her to spend time with her father against her will.  In this regard, the family consultant has indicated that this may have an effect, if indeed she does not want to spend time with her father, of causing her to resent her mother’s actions in making her do it and resent even more, perhaps, her father for making her do it as well.  This is a prospect the father regards with a degree of sanguinity – something which I find interesting in his evidence.  

11. So far as the mother is concerned, I form the view, at least on a preliminary basis, that some of her concerns are somewhat exaggerated.  Nevertheless, that needs to be balanced against the other primary consideration which, is sometimes in contradiction of the arrangements that might be suggested by the other primary consideration and that is the benefit to the child in having a meaningful relationship with both of her parents. 

12. The child clearly has such a relationship with her mother.  The question is how arrangements can be put in place which will enable her to have a similar relationship, so far as her father is concerned.  In this regard there is no doubt that, at least until the father returns from New Zealand, it will be difficult, if not impossible, for the practical arrangements for him to travel from New Zealand for a short time, possibly on the basis that that time may evaporate if the child should change her opinion, should occur. 

13. That would be a reason for continuing the existing orders, at least with some variation to provide certainty as to which weekend is which between now and November 2010. 

14. Equally, if in fact, as the father suggests he will, shortly after the beginning of September 2010 return to reside in Canberra as he plans to do, then it will be easier for the arrangements which would give flexibility to the child’s activities and views to be implemented. 

15. I take account of the fact that the child is 11 years old.  She is not a 21 year old.  Ultimately, it is a matter for her to comply to a large extent with what her parents say is best for her.  It is not up to her to make determinations about important things in her life without regard to what her parents might impose.  The difficulty in this case is that, unlike some lucky 11 year olds, the child has parents who cannot agree about what is best for her.  Each parent seeks to impose upon her his or her will about what that best thing might be.

16. Nevertheless, this means perhaps that the child would benefit from having an order of this Court which would make clear what her obligations are, at least in the short term, so that she is not obliged to blame either parent for what is being done to her.  If I were going to adopt that particular view, neither parent should take any comfort or confidence from that.  It should not be assumed that simply because a parent says something is in the child’s best interests that I will continue to espouse that view, or have any view consistent with that, in the future. 

17. These matters, therefore, would lead me to conclude that, at least in the short term, and by that I mean between now and perhaps November 2010, the existing arrangements about the weekend time that the child spends with her father, should continue.  I say this not because I am expressing any particular support for the propositions advanced by the father, whose approach to the matter I regard as being significantly driven by his own needs and wants rather than by what the child wants.  It was interesting to note in his evidence that very little attention was paid to what the child was doing or wanted but rather what his practical needs and requirements were.

18. Nevertheless, in terms of maintaining the meaningful relationship between her and her father, to the extent that it can be done, and in circumstances where I am satisfied that the practical considerations bearing upon this matter are as they are, I think that I should give effect to those orders. 

19. In doing so I am very conscious of the fact that the child has been very brave in expressing her views to the family consultant about the way she feels.  It seems to me, without any doubt at all, that she will be severely disappointed by the fact that, having expressed those views honestly, that they have not been the subject of the way this Court has proceeded today. 

20. In taking that position, I take the view that the child has to understand that it is not simply what she wants that must be implemented.  Equally, neither parent should take any comfort from the proposition that, on this instance, I was prepared to override those views.  I am far from satisfied that the child is anything other than as the family consultant reports her to be, which is concerned for the moment about the fact that her father does not have a proper understanding of the way in which she is growing up and what her needs and requirements might be.

21. I finally wish to indicate that I have taken account of s 60CC(4) and s 60CC(4A) in coming to the conclusions I have. Those provisions relevantly provide:

    (4)  Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

    (a)  has taken, or failed to take, the opportunity:

    (i)  to participate in making decisions about major long‑term issues in relation to the child; and

    (ii)  to spend time with the child; and

    (iii)  to communicate with the child; and

    (b)  has facilitated, or failed to facilitate, the other parent:

    (i)  participating in making decisions about major long‑term issues in relation to the child; and

    (ii)  spending time with the child; and

    (iii)  communicating with the child; and

    (c)  has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

    (4A)  If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

22. These are matters which I shall take into account in more detail when I come to the final hearing.  I do say in relation to this, that I do not expect, nor would I have believed it to be appropriate, that up to this point that there should have been, on the part of the mother, any particular further effort required to facilitate the involvement, or the participation, of the father in making decisions about major long-term decisions about the child.  I do not regard what the father has done as being, on his part, an opportunity to take advantage of the times he could properly have spent with the child or to communicate with her effectively.  I am far from satisfied that at this point the father has continued to fulfil his obligation to contribute effectively towards the maintenance, by which I mean the financial maintenance, of the child.

23. The consideration in s 60CC(4A) is, in many respects, a meaningless phrase. If I am obliged to have regard, in particular, to events that have happened one can only assume that the legislature, in its wisdom, might have meant relevant to parties, rather than generally.  This tends to mean that the “circumstances that have existed” and the phrase that follows has very little meaning, or alternatively, the first phrase have very little meaning.  Either way, it is not helpful either to the parties, to the Court, or to the children who are bound by these provisions to have such poor drafting.

24. The time that the child spends with her father will be broadly, as is set out in order 2 of my orders of 15 June 2007.  That is, that she will spend this weekend and every second weekend thereafter with her father from after school on the Friday, or after dance classes on a Friday, until school on the following Monday, with an extension if the Monday is a public holiday.  I propose to suspend any holiday time that the child has with her father between now and then, and to have the weekend arrangements continue during any period of school holidays.  This will remove any ambiguity which may be associated with when the weekend periods return.  I am conscious of the fact that that applies only until 2 November. 

25. The father has sought in these proceedings that I should order a further expert’s report from a person he has identified at this point as possibly appropriate – Dr R, a Brisbane psychologist.  I am unwilling to postpone the finalisation of these proceedings beyond 1 and 2 November 2010.  I note that the matter will be back before me for other reasons on 6 August 2010 to deal with matters relating to enforcement of orders for property division.  If the parties have been unable to agree upon an expert, and to agree upon the terms of reference for the expert, by that date with an assurance that a report can be made available in time for the hearing on 1 November 2010, I will not make the order in relation to the expert. 

26. If I am satisfied on that day that either party has deliberately set out to frustrate the arrangements, then I will take that into account in making my determination.  It seems to me to be improbable that any expert is likely to be able to make the arrangements necessary to carry out the report that’s referred to.  In agreeing to this, I am not doing so on the basis that I lack any confidence in the report I already have from the family consultant.  I am doing so because I am requested to do so by one of the parties in the proceedings.  

27. That does not mean that I am satisfied that Dr R, or any other person who may be chosen by the parties as an expert, is the appropriate person to give a report, or that the report will in any way further inform me from the information I presently have.  I should not be taken to have either rejected or accepted Dr R as the appropriate expert, and I would have thought in many respects that he may not be the appropriate expert, not because of any lack of qualifications, but simply because of his geographical location in Brisbane and the cost to the parties associated of attending upon him for the purposes of the preparation of the report. 

I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks. 

Senior Legal Associate: 

Date:  5 August 2010