Conte and Brioli

[2013] FCCA 1800

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONTE & BRIOLI [2013] FCCA 1800

Catchwords:
FAMILY LAW – Parenting – high conflict – low communication and trust.

Legislation:
Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4

Applicant: MR CONTE

Respondent: MS BRIOLI

File Number: SYC 2837 of 2012

Judgment of: Judge Altobelli

Hearing dates: 8 & 9 August 2013

Date of Last Submission: 9 August 2013

Delivered at: Sydney

Delivered on: 8 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Blackah

Solicitors for the Applicant: Zraika Partners Lawyers

Counsel for the Respondent: Ms Boyle

Solicitors for the Respondent: Reid Family Lawyers

ORDERS

BY CONSENT THE COURT ORDERS THAT:

1. That the Child, [X], born [in] 2010, shall live with the Mother.

2. The parties shall have equal shared parental responsibility for decisions concerning [X]’s long term care, welfare and development.

3. Notwithstanding Order 2, in the event that a dispute arises in relation to where [X] shall attend school, the parties shall do the following:

   (a)Provide each other with notice of the school at which they would like [X] to attend including the provision of a prospectus of the proposed school, not less than 9 months prior to the intended enrolment date;

   (b)Attend any open days/interviews/orientation days offered by each school in the period after notice is provided and enrolment is due to take place;

   (c)Attend on a registered child dispute resolution practitioner (with the costs of such attendance to be shared equally) for the purposes of attempting to resolve the dispute.

   (d)In the event, within 21 days of any mediation conducted by a Registered Child Dispute Resolution Practitioner, an agreement is not reached about the school [X] will attend, [X] will attend the State school closest to the Mother’s residence.

4. The written consent of the other party is required before [X] is permitted to be removed from the Commonwealth of Australia. The travelling parent shall provide the other parent with at least sixty (60) days’ prior written notice (or other such notice period as agreed) of the intended trip, specifying the proposed dates and destination. The non-travelling parent will advise whether they consent to the trip within fourteen days of receiving the notice, and shall not unreasonably withhold their consent. In the event consent is provided, the travelling parent shall provide at least thirty (30) days’ written notice (or other such notice period as agreed) of the confirmed dates and times of travel, itinerary, return ticketing details and contact details for [X] for the duration of the trip.

5. That the Mother be permitted to remove [X] from the Commonwealth of Australia for a period of 15 days from 29 November 2013 to travel to Hawaii and that the Mother shall make [X] available to spend time with the Father on the day before her departure from 9.00am until 4.00pm and on the second day after her return from 9.00am until 7.00pm.

6. From 2016 interstate and overseas holidays shall be taken with [X] such that holidays will not result in [X] missing school, unless otherwise agreed in writing between the mother and father.

7. The mother and father shall do all things and sign all documents to obtain or renew an Australian Passport for [X] within fourteen (14) days of a written request being received. The cost of obtaining or renewing the Passport shall be shared equally by the parties and paid within fourteen (14) days of written request being received.

8. The mother shall retain [X]'s Passport and Birth Certificate.

9. The mother shall provide [X]’s passport to the father at least seven days prior to any overseas travel and for the purposes of booking tickets and the passport(s) shall be returned to the mother within seven days of [X]’s return from overseas travel or within 24 hours of tickets being booked.

10. Neither parent shall make a commitment for [X] during a period when [X] will be living with the other parent, without first discussing the commitment with the other parent and obtaining their written consent to such commitment.

11. The mother and father shall advise each other of any extra-curricular sporting/recreational activities, birthday parties and school functions in which [X] is to be involved. The mother and father shall ensure, where possible that [X] shall attend such commitments when [X] is in their care. In the event a parent is unable to ensure [X]’s participation, they will contact the other parent, at least 48 hours in advance, to see if they are able to facilitate [X]’s attendance.

12. Neither parent is precluded from attending any preschool or school function or activity or extracurricular activity involving [X] in the event that such function or activity occurs at a time when [X] is with the other parent.

13. The mother and father shall keep each other informed at all times of their residential address, personal email address and personal contact telephone number and advise the other of any change within twenty-four (24) hours.

14. Each parent provide such consents and authorities as may be required:

    (a)by any pre-school/school attended by [X] to enable both the mother and father to receive reports, notices and correspondence relating to [X] and to permit both parents to attend special events or other school activities involving [X] and to speak to [X]’s teachers concerning the performance of [X]; and

    (b)by any hospital, medical practitioner or other health care professional including counsellors, psychologists and/or psychiatrists to receive information and reports in relation to [X]’s health, welfare and treatment.

15. The mother and father will inform the other of any medical treatment [X] receives and the treating doctor as soon as practicable after [X] has received the treatment and advise of any medication prescribed for [X] from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover.

16. Each parent shall as soon as practicable contact the other parent to advise in the event that [X]:

    (a)Becomes seriously ill;

    (b)Is hospitalised; or

    (c)Is involved in an accident, in circumstances requiring the attention of a medical practitioner.

17. Each party is at liberty to obtain all relevant medical records and consult [X]’s medical practitioners to obtain any information they require and these Orders are sufficient authority for that purpose.

18. That both parents be permitted to liaise directly with [X]'s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about [X]’s progress.

19. Without admitting the necessity for such an Order, each parent is restrained from denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of [X], or permitting [X] to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with while [X] is in their presence.

THE COURT FURTHER ORDERS THAT:

1. That [X] spend time with the father as follows:

   (a)That until [date omitted] 2013:

   (i)Pursuant to Order 5.1 of the Orders made on 23 July 2012.

   (b)That until [X] commences school:

   (i)On Friday 25 October 2013 and each alternate Friday thereafter, from 4.00pm to 7.00pm;

   (ii)Commencing from 29 October 2013, from 3.00pm Tuesday until 4.00pm Wednesday each alternate week; and

   (iii)Commencing from 2 November 2013, from 9.00am Saturday to 5.00pm Sunday and each alternate week thereafter.

   (c)That upon [X] commencing primary school, and commencing the first week of the school term:

   (i)Each Wednesday from after school (or 3.00pm if [X] does not attend school) to 7.00pm;

   (ii)From after school Friday (or 3.00pm if [X] does not attend school) to 9.00am the next school day and each alternate week thereafter; and

   (iii)During the school holidays as follows:

   Term 1 of Kindergarten

   A.For the first 3 nights of the gazetted school holiday period in term 1 of the year [X] commences school commencing at 9.00am on the first day of the gazetted school holiday period and concluding at 10.00am the fourth day thereafter;

   Term 2 of Kindergarten

   B.For the first 4 nights of the gazetted school holiday period in term 2 of the year [X] commences school commencing at 9.00am on the first day of the gazetted school holiday period and concluding at 10.00am on the fifth day thereafter;

   Term 3 of Kindergarten

   C.For the first 5 nights of the gazetted school holiday period in term 3 (and term 4 if the Kindergarten adopts a 4 term year) of the year [X] commences school commencing at 9.00am on the first day of the gazetted school holiday period and concluding at 10.00am on the sixth day thereafter;

   First Grade Onwards

   Except for as set out in Order 20(d):

   D.From the time [X] commences Grade 1, for the first half of all the gazetted school holiday periods in all odd numbered years commencing from after school on the last day of school (immediately before the start of the holiday period) or any pupil free day if earlier and ended at 3.00pm on the day constituting half the school holiday periods; and

   E.From the time [X] commences Grade 1, for the second half of all gazetted school holiday periods in all even numbered years commencing from 9.00am on the day constituting half the school holiday term to the beginning of school on the next school day.

   (d)In respect of the December/January school holiday periods as follows, and until [X] is 8 years old:

   (i)From 9.00am on the first day of the gazetted school holiday period until 6.00pm on the seventh day thereafter and repeating in alternate weeks thereafter until the conclusion of the school holiday term; and

   (ii)Upon [X] reaching the age of 8 years; as per Orders 20(c)(iii) D and E.

   (e)That unless [X] is already spending time with the father in accordance with preceding Orders, [X] shall spend time with the father on the following additional days and times (and the mother’s time with [X] is corresponding suspended during these periods):

   (i)On [X]’s birthday each year by agreement of the parties but failing agreement:

   A.If [X] is at school and her birthday falls on a school day then from after school to 6.00pm;

   B.If falling on a non-school day, from 2.00pm to 7.00pm.

   (ii)On Father’s day each year from 9.00am to 7.00pm;

   (iii)On the father’s birthday each year by agreement of the parties but failing agreement:

   A.If [X] is at school and the father’s birthday falls on a school day then from after school to 6.00pm;

   B.If falling on a non-school day, from 2.00pm to 7.00pm.

   (iv)On Christmas Day from 9.00am to 7.00pm commencing in 2013 and each alternate year thereafter;

   (v)On Christmas Eve from 12.00pm to 9.00am Christmas Day commencing in 2014 and each alternate year thereafter;

   (vi)On Boxing Day from 9.00am to 7.00pm commencing in 2014 and each alternate year thereafter;

   (vii)From 9.00am Easter Friday to 7.00pm Saturday commencing in 2014 and each alternate year thereafter;

   (viii)From 9.00am Easter Sunday to 7.00pm Easter Monday commencing in 2015 and each alternate year thereafter;

   (ix)From 10.00am New Years Eve to 10.00am New Years Day commencing in 2014 and each alternate year thereafter;

   (x)From 10.00am to 7.00pm New Years Day; and

   (xi)On such other days and times as the parties may agree.

2. For the purposes of [X] spending time with each party and unless otherwise agreed between the parties:

   (a)When changeover occurs at pre-school/school the parties or their nominee shall collect [X] from school at the commencement of the periods [X] is living/spending time with them and deliver [X] to pre-school/school at the conclusion of periods she is living/spending time with them.

   (b)For changeovers that do not occur at school, the father shall collect [X] from the mother’s residence at the commencement of periods of time [X] is to live with him and the mother shall collect [X] from the father’s residence at the commencement of periods of time [X] is to live with her, except that while the Father continues to reside at the home of the paternal grandparents, changeover at the conclusion of the Father’s time shall take place at [P] Car Park or such other place agreed between the parties.

   (c)During 2013 and 2014, the changeover be facilitated on the mother’s behalf by the maternal grandfather when possible.

3. Unless otherwise agreed between the parents in writing, the mother and father are permitted to travel interstate with [X] during periods in which [X] is living with them provided that the travelling parent provides the other party with fourteen (14) days’ notice (or such other notice period as agreed) of their travel plans including dates and times of travel and contact details for the duration of the trip.

4. That the parties sign all documents and do all things necessary to change [X]’s surname to Brioli-Conte.

5. For the purposes of communicating information between the parties about matters relating to [X], the mother and father shall:

   (a)Communicate by telephone including text messages to personal telephone numbers matters of an urgent nature only and the mother is hereby restrained from otherwise text messaging or emailing the father at anytime except in the case of emergency;

   (b)The mother and father shall keep each other informed about [X]’s day-to-day matters such as sleep times, routine, food eaten and any incidences whilst in their care via a communication book to be exchanged at changeover.

6. The mother is to consider engaging a counsellor for supportive counselling and attending Cognitive Behavioural Therapy.

7. The parents use a communication book to exchange brief, essential information about [X], with such information recorded to be brief factual information only when appropriate.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 2837 of 2012

MR CONTE

Applicant

And

MS BRIOLI

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about [X], born [in] 2010.  By the time these reasons for judgment are published [X] will be three.  The applicant is her father.  He is 30 years old, describes himself as a [occupation omitted], and lives with his parents at [W].  The respondent is [X]’s mother.  She is 28 years old, describes herself as a [occupation omitted], and lives with her family in [T].  [X]’s parents cannot agree about the parenting arrangement that is in her best interests.  Like so many parents who come before the Court, [X]’s parents are singularly incapable of cooperating or communicating with each other when it comes to [X].  All communication between them is dysfunctional, and seems to led to misinterpretation and escalation of the already high level of conflict that exists between them.  [X]’s parents have no trust for each other.  As will be seen below, [X] enjoys a good relationship with her extended family on both her mother and father’s side, but some of these relationships are also fractured.

2. The Court has to decide how much time [X] spends with her father, and in what circumstances.  There are a number of other peripheral issues also to be decided.  By the time of closing submission the father conceded that [X] would remain living with her mother who has been her primary caregiver all of her life.  Despite that concession, the father’s case was very much predicated on his concerns about the mother’s inability, or unwillingness to facilitate and encourage [X]’s relationship with him. 

Background

1. [X]’s parents commenced their relationship in either 2007, or 2008.  Nothing turns on the precise date of this.  It is clear the cohabitation commenced by about May 2009 when they started living together in a property they purchased in [omitted].  The relationship ended on 1 August, 2011, when the mother took [X], and moved out of the home in which they were then living at the time.  There were a number of other separations before then, however, including in 2010 (twice).  The relationship between [X]’s parents was, therefore, quite a short one.  It was also, in many respects, a tumultuous one.  [X]’s mother had a significant falling out with members of the father’s family, and it will, regrettably, be necessary to go into the details of this.

2. The father’s main complaint in the post-separation period is that the mother closely controlled and limited any time that he could spend with [X].  The immediate post-separation period was a stressful one, particularly for the mother.  The mistrust that each had for the other was magnified as a result of miscommunication, and relatively harmless and, indeed, innocuous events.  There was an ad hoc arrangement in place for [X] to spend time with her father, but he clearly did not consider it satisfactory, and on 17 May, 2012, he initiated the present application. 

3. On 23 July, 2012, the parties entered into consent orders in the following terms (only relevant orders are extracted):

   1)That the father and the mother have equal shared parental responsibility for the child, [X], born [in] 2010 (‘[X]’) and shall consult each other and keep each other informed in relation to matters concerning [X]’s welfare.

   2)That the mother be responsible for [X]’s day to day care, welfare and development when [X] is living with or spending time with the mother.

   3)That the father be responsible for [X]’s day to day care, welfare and development when [X] is living with or spending time with the father.

   4)That [X] live with the mother except as otherwise provided by these Orders.

   5)That [X] spend time with the father as follows:

   (a)That until [X] attains 3 years of age:

   i.Each Wednesday (except 26 December 2012) from 8.00am to 11.00am until (but including) 30 January 2013;

   ii.Each Tuesday from 9.00am to 3.30pm commencing from 6 February 2013;

   iii.Each Thursday from 4.00pm to 6.00pm (provided that for the first 2 weeks following the making of these Orders, the mother be present during these visits); and

   iv.On a continuous cycle of:

   (a)Three (3) Saturdays on – from 8.30am to 11.00am commencing 25 August 2012; and

   (b)One (1) Saturday off

   (b)That from [date omitted] 2013 but until [X] commences school:

   i.Each Tuesday from 9.00am to 3.30pm;

   ii.Each Thursday from 4.00pm to 6.00pm; and

   iii.Each alternate weekend from 9.00am Saturday to 6.00pm Sunday.

   6)That [X] spend time with the father on the following additional days and times:

   (a)On Father’s Day in 2012 from 9.00am to 2.00pm;

   (b)On [X]’s Birthday in 2012 from 8.00am to 11.00am;

   (c)On 22 December 2012 from 10.00am to 5.00pm;

   (d)During Easter from 10.00am to 5.00pm Good Friday in 2013.

   7)That the father shall collect [X] from the mother’s premises at the commencement of visitation and the mother shall collect [X] from the father’s premises at the conclusion of visitation, except as otherwise agreed between the parties.

   8)That for the purposes of Order 5(a)(iv) the father agrees, to the extent that it is practicable, to take [X] to any pre-booked swimming lessons scheduled for [X] on that morning.

4. It is significant to note that the parents themselves agreed that as from [date omitted], 2013, [X]’s third birthday, overnight time would commence.

5. The parental conflict continued after the interim orders despite the parents undertaking a parenting after separation education program, attending on a child dispute conference, and participating in the preparation of a family report by Dr G.  Indeed, a disturbing theme in this litigation is that the conflict has continued unabated up to and including the final hearing, and notwithstanding the interventions that each of the parents have participated in, and the very valuable advice that they received by Dr G.  Despite all of these difficulties, somehow the parents were able to compromise their claim for property settlement.

Proposals at Final Hearing

1. The applicant father’s proposals evolved during the course of the evidence.  Thus, for example, counsel for the father sought Dr G’s response to a proposal that [X] actually live with him, based on the concerns that exist about the mother’s inability, or unwillingness, to support [X]’s relationship with him.  Dr G made it very clear that that was not a proposal she was prepared to support, and that, in fact, such a change would not be in [X]’s best interests because, amongst other things, it would be taking her away from her primary attachment figure, and would probably cause the mother to decompensate.  That is not to say that Dr G did not have some concerns about the mother’s ability or willingness to encourage [X]’s relationship with her father.  Clearly she did, as will be seen below.  However, Dr G made it clear that at this stage in [X]’s development and life, a change in her primary care arrangements was certainly not in her best interests.  This proposal was, therefore, not pressed by the time of closing submissions.  To put the matter beyond any doubt, whilst the Court shares the father and Dr G’s concerns about the mother’s willingness or ability to facilitate and encourage [X]’s relationship with her father, there is no evidence before the Court that would justify removing [X] from her mother’s primary care, and putting her in her father’s primary care.  Nothing further will be directly said in these reasons about the father’s proposal for [X] to live with him. 

2. The father’s alternate proposals then further evolved, somewhat confusingly, until it crystallized in the form of the orders that he seeks, which are reproduced in the second schedule to these reasons.

3. The mother’s proposals also underwent some transformation, though not to the same extent as the father’s.  Thus, for example, she sought an order postponing when overnight time was to commence until the commencement of [X]’s first term of primary school.  In addition, she sought a further variation of the interim orders to change Tuesdays to Wednesdays.  Both of these changes were raised in a relatively short period before the final hearing.  In any event, the final orders proposed by the mother are contained in a document entitled respondent mother’s proposed orders, that are reproduced in the first schedule to these reasons. 

4. It is important to note that the father agreed to the following orders proposed by the mother without modification:

   1)That the Child, [X], born [in] 2010, shall live with the Mother.

   2)The parties shall have equal shared parental responsibility for decisions concerning [X]’s long term care, welfare and development.

   3)Notwithstanding Order 2, in the event that a dispute arises in relation to where [X] shall attend school, the parties shall do the following:

   (a)Provide each other with notice of the school at which they would like [X] to attend including the provision of a prospectus of the proposed school, not less than 9 months prior to the intended enrolment date;

   (b)Attend any open days/interviews/orientation days offered by each school in the period after notice is provided and enrolment is due to take place;

   (c)Attend on a registered child dispute resolution practitioner (with the costs of such attendance to be shared equally) for the purposes of attempting to resolve the dispute.

   (d)In the event, within 21 days of any mediation conducted by a Registered Child Dispute Resolution Practitioner, an agreement is not reached about the school [X] will attend, [X] will attend the State school closest to the Mother’s residence.

   11)The written consent of the other party is required before [X] is permitted to be removed from the Commonwealth of Australia. The travelling parent shall provide the other parent with at least sixty (60) days’ prior written notice (or other such notice period as agreed) of the intended trip, specifying the proposed dates and destination. The non-travelling parent will advise whether they consent to the trip within fourteen days of receiving the notice, and shall not unreasonably withhold their consent. In the event consent is provided, the travelling parent shall provide at least thirty (30) days’ written notice (or other such notice period as agreed) of the confirmed dates and times of travel, itinerary, return ticketing details and contact details for [X] for the duration of the trip.

   12)That the Mother be permitted to remove [X] from the Commonwealth of Australia for a period of 15 days from 29 November 2013 to travel to Hawaii and that the Mother shall make [X] available to spend time with the Father on the day before her departure from 9.00am until 4.00pm and on the second day after her return from 9.00am until 7.00pm.

   13)From 2016 interstate and overseas holidays shall be taken with [X] such that holidays will not result in [X] missing school, unless otherwise agreed in writing between the mother and father.

   15)The mother and father shall do all things and sign all documents to obtain or renew an Australian Passport for [X] within fourteen (14) days of a written request being received. The cost of obtaining or renewing the Passport shall be shared equally by the parties and paid within fourteen (14) days of written request being received.

   16)The mother shall retain [X]'s Passport and Birth Certificate.

   17)The mother shall provide [X]’s passport to the father at least seven days prior to any overseas travel and for the purposes of booking tickets and the passport(s) shall be returned to the mother within seven days of [X]’s return from overseas travel or within 24 hours of tickets being booked.

   19)Neither parent shall make a commitment for [X] during a period when [X] will be living with the other parent, without first discussing the commitment with the other parent and obtaining their written consent to such commitment.

   20)The mother and father shall advise each other of any extra-curricular sporting/recreational activities, birthday parties and school functions in which [X] is to be involved. The mother and father shall ensure, where possible that [X] shall attend such commitments when [X] is in their care. In the event a parent is unable to ensure [X]’s participation, they will contact the other parent, at least 48 hours in advance, to see if they are able to facilitate [X]’s attendance.

   21)Neither parent is precluded from attending any preschool or school function or activity or extracurricular activity involving [X] in the event that such function or activity occurs at a time when [X] is with the other parent.

   22)The mother and father shall keep each other informed at all times of their residential address, personal email address and personal contact telephone number and advise the other of any change within twenty-four (24) hours.

   23)Each parent provide such consents and authorities as may be required:

   (a)by any pre-school/school attended by [X] to enable both the mother and father to receive reports, notices and correspondence relating to [X] and to permit both parents to attend special events or other school activities involving [X] and to speak to [X]’s teachers concerning the performance of [X]; and

   (b)by any hospital, medical practitioner or other health care professional including counsellors, psychologists and/or psychiatrists to receive information and reports in relation to [X]’s health, welfare and treatment.

   24)The mother and father will inform the other of any medical treatment [X] receives and the treating doctor as soon as practicable after [X] has received the treatment and advise of any medication prescribed for [X] from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover.

   25)Each parent shall as soon as practicable contact the other parent to advise in the event that [X]:

   (a)Becomes seriously ill;

   (b)Is hospitalised; or

   (c)Is involved in an accident, in circumstances requiring the attention of a medical practitioner.

   26)Each party is at liberty to obtain all relevant medical records and consult [X]’s medical practitioners to obtain any information they require and these Orders are sufficient authority for that purpose.

   27)That both parents be permitted to liaise directly with [X]'s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about [X]’s progress.

   28)Without admitting the necessity for such an Order, each parent is restrained from denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of [X], or permitting [X] to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with while [X] is in their presence.

5. In order to depict this, the orders referred to immediately above are in bold in the first schedule.

6. The father also agreed to a number of orders sought by the mother but with modification. Thus he accepted order 9(b) proposed by the mother, except that the words “[P] Car Park” are deleted and replaced with “[C] Park, [W]”. He also agreed to 18(a) provided the following words were added: “The mother is hereby restrained from otherwise text messaging or emailing the father at any time except in the case of an emergency.”

7. The consequence of these concessions is that the father was only pressing certain orders in the document he advanced. These orders are:

   4)That [X] live and spend time with the father as follows:

   4.1)That until [date omitted] 2013:

   (a)Pursuant to Order 5.1 of the Orders made on 23 July 2012.

   4.2)That until [X] commences school:

   a)   On Friday 25 October 2013 and each alternate Friday thereafter, from 4.00pm to 7.00pm;

   b)  Commencing from 29 October 2013, from 3.00pm Tuesday until 4.00pm Wednesday each week; and

   c)   Commencing from 2 November 2013, from 9.00am Saturday to 5.00pm Sunday and each alternate week thereafter.

   4.3)That upon [X] commencing primary school, and commencing the first week of the school term:

   a)   Each Wednesday from after school (or 3.00pm if [X] does not attend school) to 7.00pm;

   b)  From after school Friday (or 3.00pm if [X] does not attend school) to 9.00am the next school day and each alternate week thereafter; and

   c)   During the school holidays as follows:

   Term 1 of Kindergarten

   i.For the first 3 nights of the gazetted school holiday period in term 1 of the year [X] commences school commencing at 9.00am on the first day of the gazetted school holiday period and concluding at 10.00am the fourth day thereafter;

   Term 2 of Kindergarten

   ii.For the first 4 nights of the gazetted school holiday period in term 2 of the year [X] commences school commencing at 9.00am on the first day of the gazetted school holiday period and concluding at 10.00am on the fifth day thereafter;

   Term 3 of Kindergarten

   iii.For the first 5 nights of the gazetted school holiday period in term 3 of the year [X] commences school commencing at 9.00am on the first day of the gazetted school holiday period and concluding at 10.00am on the sixth day thereafter;

   First Grade Onwards

   Except for as set out in Order 4.4:

   iv.From the time [X] commences Grade 1, for the first half of all the gazetted school holiday periods in all odd numbered years commencing from after school on the last day of school (immediately before the start of the holiday period) or any pupil free day if earlier and ended at 3.00pm on the day constituting half the school holiday periods; and

   v.From the time [X] commences Grade 1, for the second half of all gazetted school holiday periods in all even numbered years commencing from 9.00am on the day constituting half the school holiday term to the beginning of school on the next school day.

   4.4)In respect of the December/January school holiday periods as follows, and until [X] is 8 years old:

   (a)From 9.00am on the first day of the gazetted school holiday period until 6.00pm on the seventh day thereafter and repeating in alternate weeks thereafter until the conclusion of the school holiday term; and

   (b)Upon [X] reaching the age of 8 years; as per Orders 4.3(c)(iv) and (v).

   4.5)That unless [X] is already living or spending time with the father in accordance with preceding Orders, [X] shall spend time with the father on the following additional days and times (and the mother’s time with [X] is corresponding suspended during these periods):

   4.5.1)On [X]’s birthday each year by agreement of the parties but failing agreement:

   (a)  If [X] is at school and her birthday falls on a school day then from after school to 6.00pm;

   (b)  If falling on a non-school day, from 2.00pm to 7.00pm.

   4.5.2)On Father’s day each year from 9.00am to 7.00pm;

   4.5.3)On the father’s birthday each year by agreement of the parties but failing agreement:

   (a)If [X] is at school and the father’s birthday falls on a school day then from after school to 6.00pm;

   (b)If falling on a non-school day, from 2.00pm to 7.00pm.

   4.5.4)On Christmas Day from 9.00am to 7.00pm commencing in 2013 and each alternate year thereafter;

   4.5.5)On Christmas Eve from 12.00pm to 9.00am Christmas Day commencing in 2014 and each alternate year thereafter;

   4.5.6)On Boxing Day from 9.00am to 7.00pm commencing in 2014 and each alternate year thereafter;

   4.5.7)From 9.00am Easter Friday to 7.00pm Saturday commencing in 2014 and each alternate year thereafter;

   4.5.8)From 9.00am Easter Sunday to 7.00pm Easter Monday commencing in 2015 and each alternate year thereafter;

   4.5.9)From 10.00am New Years Eve to 10.00am New Years Day commencing in 2014 and each alternate year thereafter;

   4.5.10)From 10.00am to 7.00pm New Years Day; and

   4.5.11)On such other days and times as the parties may agree.

   4.6)By telephone each second day, for periods not exceeding 10 minutes, when [X] is not in his care, and for the purposes of this Order, the mother shall ensure [X] is available to receive phone calls from the father and shall do all things necessary to assist [X] with telephone communication.

   5)That if, subject to this Order, [X] is living or spending time with the mother and the mother is not in a position to spend time with or otherwise care for [X] then the mother must promptly notify the father and give the father the first option to care for [X] during any such time she is unable to. This Order does not apply in the following circumstances:

   (a)In respect to times of short duration when the mother is absent and away from the child for no more than 4 hours, provided the [X] is in the care of one or more the maternal grandparents;

   (b)In respect to time when the father has agreed in writing [X] can be placed in child care or preschool; or

   (c)In respect to time when [X] is at school.

   6)That the father:

   (a)Collect [X] from school at the commencement of visitation on days when his time with [X] commences after school on a school day; and

   (b)Deliver [X] to school at the conclusion of visitation on days when his time with [X] concludes on the morning of a school day.

   8)That the mother be and is hereby restrained from:

   (a)Relocating with [X] to a place more than a 20 kilometre radius from [address omitted], [T]; and

   (b)Changing or attempting to change the name of [X] or from using or allowing [X] to be known by any name other than the name [X] Conte.

   27)The mother is restrained from taking [X] to or discussing with [X] her therapy.

8. In order to depict these, the orders referred to are in bold in the second schedule.

9. The complexity reflected above is regrettable but, in reality, the main issues are identified at paragraph 23 below, and detailed reasons will be provided as regards those. It will be apparent that there are a number of discrete and minor issues that will be dealt with in a more cursory manner. 

10. The father filed a Contravention Application on 17 June, 2013, returnable on the first day of the hearing.  Quite sensibly, he withdrew the application and allowed the Court to dismiss it.  The Court has no doubt that the hearing of the contravention application, in the context of this case, would have added nothing, and would have only unnecessarily protracted the hearing.

11. The mother sought child support departure orders.  It was quite inappropriate for her to do so, in the manner that she did, and with the notice that she gave.  The Court declined to entertain her application.  It is clear that she has not availed herself of the various review and appeal procedures available to her through the child support legislation.  In any event, the addition of this issue would have greatly complicated and prolonged the hearing of this matter. 

12. The mother filed an Application in a Case on 13 June, 2013, seeking to vary the interim orders (as described above).  She sought to have that dealt with during the course of the final hearing.  The Court is satisfied that all of the issues that the mother wished to raise about the appropriateness of the current interim orders, and the need for a change, was contained within the evidence before the Court.  There is no need, therefore, for the application in a case to be dealt with separately, and it will be dismissed.

13. The applicant father relied on his affidavits sworn 31 July, 2013, 13 June, 2013, and 16 May, 2012.  Affidavits were also filed in his case by Mrs C and Ms M, the paternal aunt.  The latter two were not required for cross-examination.

14. The mother’s case relied on her affidavits of 13 June, 2013, 26 July, 2013, and paragraph 39 only of her affidavit of 5 July, 2012.  The maternal aunt, Ms B, swore an affidavit of 26 July, 2013.  She was not required for cross-examination.  In the mother’s case, reliance was also placed on an affidavit of a clinical psychologist, Ms Y sworn 23 July, 2013.  This was admitted, subject to weight, and the deponent was not required for cross-examination.  Ms Y purported to be Ms Brioli’s treating psychologist, but her recommendations went well beyond the parameters of a treating psychologist.  In circumstances where Ms Y had no involvement with the father, or members of his family, the Court places minimal weight on her recommendations. 

15. A Family Report was prepared by Dr G.  Her report dated 27 March, 2013, was based on interviews and observations that took place on 2 and 9 March, 2013.  Dr G gave evidence.

The Issues

1. When one has regard to the final proposals advanced by the parents, having regard to the evidence, the issues for determination include:

   1)When, how long, and under what circumstances should [X] spend time with her father;

   2)Should there be any restriction on where, in a geographical sense, the mother can live with [X];

   3)Should [X]’s surname be changed to Brioli-Conte; and

   4)Whether the parents, the family, or any one of them should be engaged in further and ongoing therapy or treatment.

2. At a deeper level, the issues that arise for determination in this case are better understood by reference to the primary and additional considerations referred to in s.60CC of the Family Law Act 1975.  Some of these considerations may, thankfully, be eliminated.  Hence, there are no issues about protecting [X] from harm.  [X]’s views will play no role in the determination of the issues before the Court.  There is no family violence, even though there is high and arguably intractable conflict between the parents.  However, considerations that will feature prominently in these reasons for judgment include

   1)the nature of [X]’s relationships with her parents, and the other significant adults in her life;

   2)the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and her father, and other significant people in her life;

   3)the likely effect of any changes in [X]’s circumstances;

   4)issues of practical difficulty and expense of [X] spending time and communicating with her father;

   5)issues of parental capacity, and particular whether there are characterological issues pertaining to either of both parents that may have an impact on their ability to provide [X]’s emotional needs;

   6)whether there are any relevant issues about maturity, lifestyle and background that might be relevant;

   7)the parents’ attitudes towards [X], and to their responsibilities of parenthood.

Applicable law

1. In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s. 60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be 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 for the child.

4. If the presumption applies, I am required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the Court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a Court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the Court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the Court considers relevant.

5. Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.

   60CC  How a Court determines what is in a child’s best interests

   Determining child’s best interests

   (1)    Subject to subsection (5), in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)    The primary considerations are:

   (a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)    Additional considerations are:

   (a)    any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;

   (b)    the nature of the relationship of the child with:

   (i) each of the child’s parents; and

   (ii)    other persons (including any grandparent or other relative of the child);

   (c)     the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f) the capacity of:

   (i) each of the child’s parents; and

   (ii)    any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant;

   (h)    if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)    the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j) any family violence involving the child or a member of the child’s family;

   (k)     any family violence order that applies to the child or a member of the child’s family, if:

   (i) the order is a final order; or

   (ii)    the making of the order was contested by a person;

   (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)    any other fact or circumstance that the Court thinks is relevant.

6. In MRR v GR [2010] HCA 4 the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the Court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the Court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

7. A little later in the judgment the High Court said:

   13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The evidence of Dr G

1. Dr G’s report follows a familiar format.  Her report elegantly and succinctly encapsulates each parent’s proposals and perspective to the issues before the Court, and she provides an insight to the Court about each parent which was, more often than not, vividly demonstrated by each of them in the evidence that they gave. 

2. The father reported to her that felt that the mother was controlling of his relationship with [X] and excluding him from her life.  The mother reported to Dr G her belief that [X] had only just started forming an attachment with her father, and that she had concerns about his capacity to parent her adequately.  It was abundantly clear to Dr G that there was a high degree of parental conflict, to which [X] had been exposed.

3. In relation to the mother, Dr G observed at paragraph 31 of her report,

   From her interview and the emails, it is clear that Ms Brioli is extremely distressed, feels largely emotionally unsupported, and struggles to do what she genuinely perceives is best for her small child.

4. At paragraph 32, having observed that [X] is being exposed to a great deal of parental conflict, Dr G opines,

   In most cases, the trigger for the conflict appeared to be Ms Brioli taking issue with something that Mr Conte or his extended family have done while [X] has been in his care.  Examples are of Mr Conte using the wrong brand of disposable nappies, there being a family member at the house or in the yard during handover, the father giving [X] sugary snacks, and a dispute over spending time when the child was sick.

5. As it turns out, and having regard to all of the evidence, the Court agrees with Dr G that, “in most cases”, the trigger for the conflict was the mother taking issue with something, but as will be seen from the evidence, the father did more than his fair share of contributing to the creation and perpetuation of the conflict between them.

6. One of the interesting things that will emerge from Dr G’s report, indeed replicated in the evidence before the Court, is that the intense problems that the mother experiences with the father and members of his family are problems not experienced by members of her family, including her father and sister.  Thus, in relation to the maternal grandfather, Dr G observed at paragraph 36:

   Mr B perceives [X] as having a good relationship with her father.  He observed that [X] is ‘quite excited’ when she is told that her father is coming and ‘happy’ to go to him when he arrives. His personal view is that [X] would not be overly distressed staying overnight with her father and the paternal family.  Personally he does not have any issues with [X]’s father or the paternal family. He perceives that the Court orders have ‘improved things’ as has the fact that [X] is getting older and is therefore more able to cope with separations from her mother.

7. In relation to the maternal aunt, Ms B, Dr G observed at paragraph 42:

   Ms B described Mr Conte in glowing terms.  She said that she and he get along ‘just fine’. When asked her thoughts on the reason for the post-separation conflict, Ms B explained that both young parents are ‘very stubborn people’ who ‘will not compromise’.  She is also of the view that her sister, [X]’s mother, is ‘very caring’ to the point of being ‘over caring’.  She believes that her sister gets this trait from their mother.

8. Dr G, of course, observed [X] in the presence of both her parents (at separate times), and in the presence of wider family, as listed at page 2 of her report.  She concluded, based on these observations, that whilst [X] initially had a very strong bond with her mother, she had now formed multiple attachments, including with the father and members of the broader family.  This was unsurprising, given the use by the mother of members of her family to provide alternate care when she herself was working, and the use of a day care facility.  Given the mother’s concerns about [X]’s relationship with the father and members of her family, the observations that Dr G makes of [X] interacting with the father and members of her family, from paragraphs 57-63 inclusive, can only be described as glowing and positive.

9. In Dr G’s evaluation, commencing from paragraph 64 of her report, she describes [X] as “a sensitive but exuberant, bright child”.  She found [X] to be attached to a variety of family members, including her father.  At paragraph 65 she expressed concern about the conflict between the parents at handover, describing it as “an unacceptable amount of conflict”.  She recommended that, until the conflict abates, the parents should not come into contact with one another and that, if possible, for the next year, the maternal grandfather undertake the handovers instead of the mother.  Indeed, the mother should only be present if the maternal grandfather is unavailable. 

10. A curious feature about this proposal is the mother’s opposition to it.  There is no doubt that the maternal grandfather was willing to undertake this role, a role which was strongly supported by the father.  The mother seemed, in her evidence, to be making excuses for why her father should not be involved, which is curious in circumstances where there is no doubt that the maternal grandfather is a willing and appropriate volunteer who seems to enjoy an excellent relationship with [X], and the father.

11. Paragraph 66 of the report is an important one:

    Ms Brioli struggles with sharing [X] with the father, who has deeply hurt her by taking his family’s side and being disloyal to her.  In particular she struggles with allowing the paternal grandmother to play an active role in [X]’s life. For a variety of reasons, not least because of her upset with the paternal aunt, Ms Brioli disapproves of [X]’s cousin [Y] being present during [X]’s time spent with her father. She also worries about the adequacy of supervision if there are two two-year-olds visiting the paternal home concurrently. This assessment finds that Ms Brioli’s fears are unfounded. From all accounts Mr Conte is present during the times that [X] spends at his home.  There are no concerns about [X]’s safety in the event a situation arose in which the maternal grandmother had to supervise [X]. Mrs C is a [occupation omitted] and is well qualified to supervise [X]. In addition she has raised three children of her own.   Ms Brioli’s concerns about Mrs C stem from her own personal issues with her rather than any realistic issue about her parenting capacity. Similarly there seems no rational reason why [X] should not come into contact with her paternal aunt and cousin, who only have the potential to enrich her life and relationships.  It is recommended that there be no restriction on extended family members having contact with [X], that this be noted in the orders, and for Ms Brioli to desist from making demands or ultimatums in relation to these issues.

12. It is important to recognise that a substantial part of the mother’s affidavit evidence deposes to concerns she has about the paternal grandmother, and the paternal aunt, and the genesis of her concerns.  Dr G resoundingly, and convincingly, renounces the proposition that there is any proper basis for the mother’s concerns.  It is unnecessary, and indeed wasteful, to spend too much time in these reasons for judgment reciting the mother’s perception of the circumstances that seems to have led to the breakdown of her relationship with members of the father’s family and created these fears that Dr G finds are clearly unfounded. 

1. It was a dispute about baby names.  At paragraph 18 of the mother’s affidavit of 26 July 2013, even she describes what occurred as a “massive fight over a name”.  Even the mother, in a rare moment of insight, acknowledges that the issue “may seem trivial”, but she then sought to characterise it as a lack of support within the relationship she had with the father.  The mother’s perception of these events has greatly distorted her thinking.  Quite apart from her capacity to mischaracterise events (of which more will be said below), she regrettably allowed her own emotion to get in the way of making child-focused decisions about [X].  

2. In any event, and based on all the evidence, the Court has no concerns whatsoever about the nature of [X]’s relationship with her father, paternal grandmother and paternal aunt, as well as [X]’s cousin, [Y], and there is no reason to place any restriction around their time with [X].

3. Paragraph 67 is another important paragraph in Dr G’s report:

   Ms Brioli gives the impression or being in a ‘mind loop’, constantly and perhaps obsessively worrying about [X] and apparently having little control over her negative emotional responses to [X]’s spending time with her father and the paternal family.  When [X] comes home from time spent with her father, Ms Brioli finds her hungry, exhausted and overwrought. She can’t help blaming the father for [X]’s distress. At times she takes a video recording of the child in this state as evidence of the child’s distress after the visits. Ms Brioli sincerely believes that she is constantly being lied to by the father about whether he is personally caring for [X] or in fact working during the time that [X] spends at his home, and also about the care he gives to [X], for instance whether [X] has slept or not.  Thus in the recent past she has made unreasonable demands on the father during the time he spends with [X], asking him to take a photo of [X] and send it to her to prove she is asleep. Mr Conte usually ignores these communications, experiencing Ms Brioli’s demands as harassing and intrusive. It is recommended that there be restraints on Ms Brioli engaging in this form of harassment. It is recommended that Ms Brioli does not contact Mr Conte at all when [X] is in his care. Ideally communication in the next year should be between the father and the maternal grandfather. The only communication anticipated would be in relation to handovers or emergencies.

4. Dr G’s observations about the mother are quite disturbing.  Dr G refers to a video recording of [X].  The father gives unchallenged evidence about this.  There is no need to set out the details in these reasons.  The mother’s actions in video recording a clearly emotionally distressed child, is a clear example of the constant and obsessive worrying about [X] that Dr G refers to at paragraph 67, and evidence of the mother having no ability to control her negative emotional responses to [X] spending time with her father. 

5. The evidence about the mother insisting that the father take photos of [X] whilst she was asleep to prove to her that he was in pact putting her down for her sleep is equally disturbing.  This is unchallenged evidence.  When the father declined to do so, the mother called the police.  The father’s evidence in this regard is set out at paragraph 110 of his affidavit sworn 31 July 2013, again unchallenged.  She unequivocally rejected the father’s protestations about privacy and being harassed, and instead insinuated that the father was sexually molesting his daughter.  This is not only an example of the “unreasonable demands of the father” that Dr G refers to, but yet another example of the “mind loop”. 

6. At paragraph 69, Dr G refers to the need for counselling and Cognitive Behavioural Therapy:

   A combination of sensitive Court orders and counselling for Ms Brioli should ameliorate the situation.  It is respectfully suggested that Ms Brioli could benefit from Cognitive Behaviour Therapy (CBT), which is widely available.  The reason this form of therapy is suggested is because during interview Ms Brioli gave many example of conclusions she had drawn that were not supported by the facts. Cognitive behaviour therapy gives an individual the skills with which she can interrogate her own assumptions. An example of possible erroneous thinking is Ms Brioli’s statement that the paternal grandfather was in the front yard ‘clearly to intimidate me’.  However there are other possible reasons why he may have been in the front yard, and the intention to intimidate her is only one possibility.  Another example is Ms Brioli’s assumption that when Mr Conte does not send her photos of [X] sleeping, it is because he is lying to her.  It is possible that he is lying to her, but it is also possible that he is ‘stonewalling’ what he perceives as unreasonable demands and intrusion during the short time he spends with [X].

7. As it turns out, the mother’s evidence indicates that she did not, in fact, obtain cognitive behaviour therapy as recommended by Dr G, that the mother believes she does not need CBT, and the mother strongly opposes an order that she undertake CBT.  What will be become clear from the brief discussion in these reasons about the evidence of Ms Y, the mother’s treating psychologist, is that Ms Y did not provide CBT.  The mother’s refusal to undertake CBT is quite problematic on the facts of this case.  It shows significant lack of insight on her part.  It demonstrates a resistance to professional advice.  It suggests an inability to prioritise [X]’s needs, over her own. 

8. The very behaviour which caused Dr G concern about the mother, and which she described in paragraph 69 as “conclusions she had drawn that were not supported by the facts” continued well after the release of the report.  Thus, for example, at paragraph 18 of her affidavit sworn 26 July 2013, and referring back to the baby name issue that fractured the mother’s relationship with members of the father’s family, she says of Ms M, the father’s sister, that she couldn’t tell her directly certain things and this “confirmed it to me that she had done this on purpose.”  This is a clear example of a conclusion drawn unsupported by the facts.  But, more so, four months after the report had been made available to the mother, she could not identify her own behaviour that caused Dr G such concern.  Another example came out in the mother’s cross-examination by counsel for the father.  On 9 May 2013, on the same day in which the mother had attended Ms Y for therapy, and well after the report of Dr G had raised the present concerns, the mother sent what can only be described as a toxic text message to the father in which she says, at one point “are you going to let Ms M destroy our child?”  Yet another example of conclusions drawn by the mother unsupported by the facts.  The curious thing about the evidence of this text message is that it is the mother’s own evidence, rather than the father’s. 

9. At paragraph 70 of Dr G’s report, she recommends that the mother receive supportive therapeutic counselling, in addition to the CBT.  She thought that the mother was somewhat isolated from her father and own sister because they do not subscribe “to her negative polarised views about the paternal family.”  Dr G explained that the recommendation was for supportive counselling, as she thought the mother was vulnerable in this isolation.  Curiously, and despite what one would have thought was a very sensible recommendation from a very concerned and independent professional, not only does the mother not propose such an order in her minute, but can only be deemed to oppose it on the same basis as she strongly opposed any order for CBT.  The Court’s concerns about the mother’s attitude in this regard should be self-evident from the comments made above. 

10. At paragraph 71 of the report, Dr G states: -

    During her interview Ms Brioli did not present as thought disordered or clinically out of touch with reality. Rather she seemed invested in a particular interpretation of events which put the father and the paternal family in a poor light. The interview and subsequent emails with Ms Brioli did not give rise to any concerns that [X] is at risk in her mother’s care.  However, it is of concern that Ms Brioli appears to be filming [X] when she is distressed after spending time with her father, instead of comforting her. This does show a concerning lack of sensitivity to [X]’s needs. 

11. Dr G refers to the evidence about the mother filming [X].  To properly understand Dr G’s concern, it is necessary to set out the father’s evidence about this incident.  This is found at paragraph 114(b) of his affidavit, sworn 31 July 2013.  It should be noted that this evidence of the father was not challenged.

    On 26 March 2013 I received 16 separate text messages from [Ms Brioli] and 2 video recordings of [X]. The videos are disturbing to me because they showed [Ms Brioli] asking [X] questions about her time with me and [X] was in an obviously distressed state (for reasons unknown), crying and [Ms Brioli] was standing there recording her rather than giving her the comfort [X] desperately needed. I felt incredible sadness and ill feeling that [X] was being neglected in this way. When sending one of the videos to me by text, she stated:

“look how upset she is, I’m fucking sick to death of your lies!!! Is this a child that has slept today!!!!!????? No it isn’t!!!!”

I informed [Ms Brioli] that [X] had slept for one hour and forty five minutes that day.

I then received a further message stating:

“And Again why is [Y] there!!??”

I received a further text message stating:

“I’m telling you right now that I am refusing to let you have [X] next Tuesday unless you guarantee that she will be put down for her sleep and that [Y] will not be there…”

1. In relation to this disturbing incident it is, perhaps, and with due respect to Dr G – who was trying to be as supportive as possible for the mother – minimising the concern to describe it merely as “a concerning lack of sensitivity to [X]’s needs”.  It goes much further than that.  Based on all the evidence, the mother’s communication with the father is by no means atypical.  The evidence again demonstrates the need for the mother to undertake CBT. 

2. It raises serious concerns about the mother’s ability to facilitate and encourage [X]’s relationship with her father.  It raises concerns about the mother’s capacity to meet [X]’s emotional needs.

3. Dr G goes on to describe the paternal grandmother as a valuable resource with whom [X] enjoys a good relationship. She had no concerns about [X]’s sleeping arrangements in the paternal household and no concerns with overnights commencing in October.  This issue, of course, was a significant one for the mother but, even in cross-examination by the mother’s counsel, Dr G would not resile from the proposition that overnights commencing in October was appropriate.

4. Indeed, at paragraph 74 Dr G states:-

   This assessment takes issue with the proposed frequency of overnight visits when [X] turns three, that [X] will be staying overnight with her father only one night every two weeks.  The concern is that this is not often enough for her to get used to it. With a fortnightly regime she will stay overnight and then after two weeks has elapsed she will have to get used to the transition all over again. To stay overnight weekly would enable [X] to comfortably feel that overnights with her father are more a part of her routine.  Consideration should be given to [X] staying overnight with her father not only every second Saturday night (for the Saturday-Sunday visitation), but also every second Monday night after which she would naturally transition into Tuesdays spent with her father.

5. Again in cross-examination Dr G did not resile from the above.  At paragraph 75 Dr G stated:-

   In seeking an order that [X] be cared for solely by her father, the mother is denying the importance of [X] having a relationship with her paternal grandparents and other paternal family members.  On this issue Ms Brioli displays an enmeshment of her needs for distance from particular paternal family members with those of her daughter, who should be given the opportunity to develop and enjoy those relationships independently of her mother, in her own right.

6. The reference to “enmeshment” in this paragraph attracted attention in cross-examination by the father’s counsel.  Dr G was able to explain that she was not suggesting that the relationship between the mother and [X] was an enmeshed one.  Indeed, given [X]’s developmental stage, that would be most unlikely.  She explained it, however, as a one-way phenomena, from the mother to the child, rather than from the child to the mother.

7. The point that Dr G was emphasising in paragraph 75, however, is the benefits to [X] of having relationships not just with the mother and father, but with the extended maternal and paternal families. 

8. At paragraph 76 Dr G firmly rejected any concerns the mother has about [X]’s cousin, [Y].  She said categorically, however, that the mother “is unlikely to have the capacity to foster the relationship between the two cousins”.  No restrictions were called for. 

9. On the topic of parental responsibility, Dr G recommended joint parental responsibility.  As it turns, both parents propose equal shared parental responsibility.  In terms of day-to-day responsibility Dr G makes some important comments at paragraphs 78 and 79, the significance of which extend beyond the presenting issue:-

   78. Paradoxically, the mother, in her high anxiety, can act as a catalyst to expose [X] to high levels of conflict between the parents. Although it will be difficult for her to accept, this assessment finds that the mother is exacerbating the conflict that [X] is exposed to, by her sometimes unreasonable and anxious demands. Ms Brioli needs to be made aware of the damaging impact of children being exposed to parental conflict.

   79. If an order (as in the interim orders) is made ‘That the father be responsible for [X]’s day to day care, welfare and development when [X] is living with him or spending time with the father,’ the meaning of this order, in practical terms, needs to be explained to Ms Brioli.

10. There is no doubt that each parent has the capacity to make appropriate day-to-day decisions about [X]’s welfare.  What is of interest is Dr G’s observations about the mother’s contribution to the conflict.  She describes the mother’s role as one of “exacerbating the conflict that [X] is exposed to, by her sometimes unreasonable and anxious demands”.  As it turns out, and having regard to all the evidence before the Court, the Court reaches the same conclusion.

11. As will be seen below, however, that does not mean, as the father asserted more than once in his solicitor’s correspondence with the mother’s solicitors, that the mother was the sole source of the conflict.  To the extent that his case may have been run on that basis, it was both immature and ill-conceived.  Even in cross-examination, the father was able to quite appropriately concede that he played a role in the conflict.  Indeed, his role was a significant one.  His attempts to involve the police in relatively minor issues were just as immature and irresponsible as the mother’s attempts to do likewise.

12. Putting aside matters of degrees of culpability, the fact remains this is a high conflict relationship, exacerbated by the mother’s anxiety, and which seems to fuel the difficulties she has in fostering and encouraging [X]’s relationship with her father. 

13. Dr G made the following recommendations, commencing from paragraph 80 of the report:-

    80. It is recommended that interim orders stand.

    81. It is recommended there be joint Parental Responsibility.

    82. It is recommended that [X] live primarily with her mother and continue to spend every Tuesday, Thursday evening and Saturday morning (three out of four) with her father.

    83. It is recommended that [X] begin spending overnights with her father when she turns three.

    84. It is recommended that [X] stay one overnight each week with her father from when she turns three until she starts school. It is suggested that this be every second Saturday overnight and every second Monday overnight, with roughly a week between the two sleepovers.

    85. It is recommended that when [X] starts school the Monday overnights cease, and she spend every second weekend with her father from Friday after school until the following Monday morning before school, as well as some midweek afternoon and evening time spent with her father.

    86. It is recommended that, when [X] starts school, there be some block holiday time spent with her father, starting with three overnights in a block and extending by one overnight each holiday period until she goes for a week’s block when she starts first class.

    87. It is recommended that, in the next year, wherever possible the parents do not come into contact with one another at handover.

    88. It is recommended that, in the next year, whenever possible, the maternal grandfather be responsible for [X]’s handovers to her father.

    89. It is recommended that the mother be restrained from sending text messages to the father or paternal family while [X] is in the father’s care, unless there is a genuine emergency.

    90. It is recommended that the mother engage a counsellor for supportive counselling and also cognitive behaviour therapy, to assist her in coping strategies while [X] is in her father’s care.

    91. It is recommended that the parents start a communication book to exchange brief, essential information about [X].  The parents need to be briefed about how to use the communication book productively (only recording very brief factual information when necessary (eg. When medication needs to be administered) and not to be used as a vehicle for continuing conflict).

    92. It is recommended that there be no restriction placed on [X] coming into contact with her paternal grandmother, aunt, uncle or cousin [Y].

    93. It is recommended that there be no restriction on [X] being in the sole care of her paternal grandmother for short periods of time.

14. As it turns out the Court accepts the submissions from both counsel that it lacks the power to make what is, in effect, a stand-alone order for supportive counselling and cognitive behaviour therapy.  That does not, however, prevent the Court from drawing an adverse inference against the mother, particularly as regards parental attitudes, in the circumstances of this case where the facts clearly demonstrate her need of both interventions, that she is strident in her belief that she does not need the same.

15. Dr G was cross-examined by counsel for the father, and the mother, both experienced Sydney counsel.  As mentioned before, she was very clear and persuasive in rejecting the proposal that [X] should live with her father and, in so doing, emphasised the vulnerability of the mother.  She made it very clear that, in her opinion, if [X] was removed from the mother’s primary care she would decompensate, she could not cope, she could not parent, and [X] would be deprived of a functioning mother.

16. She was fearful of the mother’s mental health if she were pushed into a situation that she could not cope with.  In short, reversal of primary care was strongly contra-indicated.  This line of questioning, perhaps unsurprisingly, led to the issue of the mother’s ability to facilitate and encourage [X]’s relationship with her father.  Dr G emphasised that orders for [X] to spend time with and communicate with her father need to be safe, appropriate, and developmentally suitable.

17. She emphasised that the mother’s attitudes about this issue should not dictate [X]’s time with her father, but rather the focus should be on [X], and her needs.  Increases in time should be incremental.  Thus, for example, at age 3 children of [X]’s age would typically consider pre-school, a milestone in their development, and that is an appropriate time to introduce overnight time.  Dr G, however, strongly rejected the proposition that an appropriate judicial response to the mother’s inability to facilitate and encourage [X]’s relationship with her father was to increase [X]’s time with the father.

1. The order that the mother sought that she be at liberty to nominate six one-week periods each calendar year so that she may take [X] away on holidays, on top of all the other occasions that she would otherwise be able to do so, again demonstrates a significant lack of insight on her part.  She could give no cogent reason for wanting this order, when pressed in cross-examination.  Her proposal is, in effect, a six-week moratorium on the father’s time with [X], for no good reason other than attributable to the mother’s own needs.

2. Again, all that can be done in an attempt to deal with these parental deficits is to craft orders that are as clear as possible, as well as being developmentally appropriate as possible. 

Orders least likely to lead to institution of further proceedings

1. There can be no guarantee that, on the facts of this case, and notwithstanding the hope of all parties that that the end of litigation will improve things, that there will be no further litigation.  If the mother’s attitudes about [X]’s time with her father do not change, further applications are inevitable.  As hypothesised earlier in these reasons, if she does not change what the future holds in store for her is potential contravention applications by the father, as well as an application to vary the orders so that [X] lives with him.  The keys to the future are in the mother’s hands.  Again, all the Court can do is make the best and most child-focused orders it can, in the circumstances, and based on the evidence.

Parental responsibility

1. The parents agree that there should be an order for equal shared parental responsibility.  The father has consented to the making of order 3 in the mother’s proposed orders which contains a mechanism for dealing with disputes about where [X] will go to school.  It was an appropriate concession to make on his part.  There remains some uncertainty about the ability of these parents to exercise equal shared parental responsibility but the alternative – sole parental responsibility to the mother – would be quite out of the question given the Court’s concerns about her attitudes and inability to foster [X]’s relationship with the father.

2. The making of an order for equal shared parental responsibility, even by consent, compels the Court to consider equal time, or substantial and significant time.  Both would need to be in [X]’s best interests, and reasonably practicable.  To the extent that the father’s case at one stage contemplated equal time, it was wisely not pressed. It is hard to see how, on the evidence before the Court, such an outcome could be reasonably practicable. Thus, the Court must consider substantial and significant time, and it is satisfied that it has done so for the reasons set out above. It is both reasonably practicable and in [X]’s best interests.

Orders to be made

1. The father agreed to those of the orders proposed by the mother that are identified at paragraph 11 of these reasons, and which are in bold in the first schedule to these reasons. The Court will make those orders.

2. For reasons explained above, sometimes quiet explicitly, and sometimes in general terms, the Court does not accept that orders 4-8 inclusive proposed by the mother are in [X]’s best interests. With the modifications noted below, the father’s specific proposals for him to spend time with [X] are more child-focused and developmentally appropriate.

3. In relation to the mother’s proposed order 9, the father’s opposition seems to be limited to the venue for changeover in 9(b). The Court does not accept the validity of the reasons the father advances for preferring [C] Park to the [P] car park. The orders will thus be as proposed by the mother with the addition, however, as recommended by Dr G, that whenever possible during 2013 and 2014 the changeover be facilitated on the mother’s behalf by the maternal grandfather.

4. There is a dispute about the mother’s proposed order 10 relating to interstate travel. Given that the order limits interstate travel to when [X] is with either parent and it does not infringe on the other parent’s time, the Court sees no basis for objection to this.

5. The father opposes [X]’s surname being changed to the hyphenated surname Brioli-Conte, as proposed by the mother in order 14. There is no basis for objecting to this. [X] will maintain her identity with her mother, father and their respective families by adopting this hyphenated surname.

6. In relation to the mother’s proposed order 18 the father proposes an addition to 18(a) “the mother is hereby restrained from otherwise text messaging or emailing the father at anytime except in the case of emergency.” Whilst this might seem an extreme limitation in other cases, the evidence in this case demonstrates quite vividly why it is necessary. It is a limitation Dr G suggested in any event. Order 18 will be made with the addition proposed by the father.

7. There is also opposition to orders 29 and 30 proposed by the mother. There is no reason to have these orders. They merely represent yet another manifestation of the mother’s unnecessary concerns about the father’s capacity to parent [X] and act in accordance with her needs. There is ample evidence of the father’s capacity in this regard. Whilst the father may well consider it appropriate to act consistently with proposed orders 29 and 30 there is no evidence that justifies making them.

8. Turning now to the father’s proposed orders, order 4.2(b) is clearly inconsistent with the expert evidence and recommendations given by Dr G insofar as it suggests weekly overnights on Tuesdays. Her preference was for an overnight on the alternate week, to the effect of 2 overnights each fortnight, about a week apart. For the reasons expressed elsewhere in these reasons, order 4.2(b) should provide for overnights on alternate Tuesday nights. Whether it is Tuesday night, as proposed by the father, or Monday night, as suggested by Dr G, makes little difference in the overall scheme of things. To the extent that the mother’s case suggested there were particular difficulties associated with one day or night of the week over another day or night the Court does not accept there is any reasonable basis for this. The fact is that life involves an endless ebb and flow of change on peoples’ lives so that what might be convenient or desirable at one time rapidly becomes redundant and irrelevant a short time later. One can only hope that, in time, perhaps these parents will develop the skills to be able to deal with these changes civilly, and in a child-focused manner.

9. Order 4.3 proposed by the father is consistent with Dr G’s recommendations and, based on all the evidence, is in [X]’s best interests. Indeed the only person who might struggle with this spends time with arrangement is the mother, a factor the Court has considered. Based on all the evidence, including the expert evidence, [X] will cope with this progression in time with her father. The progression cannot be allowed to be hampered by the mother’s subjective concerns, that have no objective basis.

10. The rest of proposed order 4 is consistent with the evidence. To the extent that the parents’ proposals in relation to special days differ the Court prefers the father’s proposal on the basis that it is adequately child-focused.

11. The Court has carefully considered the father’s proposed order 5. In other cases such a provision would be unproblematic. In this case the parents poor relationship, as demonstrated by the evidence discussed in these reasons, may well set this order up for failure. The Court declines to make the order. It would be potentially disruptive to [X], as well as difficult to implement and enforce. It would impose another psychological burden on an already vulnerable mother who, on the present evidence, would misconstrue this order as an intrusive attempt to control her life. In any event [X] has available to her an extensive support network on her mother’s side so there is no objective need for the order.

12. The father’s order 6 is unnecessary in view of his consent to the mother’s order 9, amended by the Court as proposed by him. As indicated in the reasons, there is no evidence to justify imposing the restraint proposed in order 9, or in order 27. As regards order 27 one would hope that it is self-evident to the parents why they should not discuss these proceedings, the parental separation, or any other aspect including therapy and counselling, with or in the presence of [X].

13. It is not possible to order the mother to obtain supportive counselling and CBT as suggested by Dr G. The reasons why she should do so are painfully obvious from the evidence. Nonetheless the Court is able to order the mother to consider these therapeutic interventions, even if the order is merely symbolic.

14. Dr G recommends the parents use a communication book. That is appropriate, and an order will be made in this regard.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  8 November 2013

Schedule One

Respondent Mother’s proposed orders

1. That the Child, [X], born [in] 2010, shall live with the Mother.

2. The parties shall have equal shared parental responsibility for decisions concerning [X]’s long term care, welfare and development. 

3. Notwithstanding Order 2, in the event that a dispute arises in relation to where [X] shall attend school, the parties shall do the following:

   (a)Provide each other with notice of the school at which they would like [X] to attend including the provision of a prospectus of the proposed school, not less than 9 months prior to the intended enrolment date;

   (b)Attend any open days/interviews/orientation days offered by each school in the period after notice is provided and enrolment is due to take place;

   (c)Attend on a registered child dispute resolution practitioner (with the costs of such attendance to be shared equally) for the purposes of attempting to resolve the dispute.

   (d)In the event, within 21 days of any mediation conducted by a Registered Child Dispute Resolution Practitioner, an agreement is not reached about the school [X] will attend, [X] will attend the State school closest to the Mother’s residence.

4. [X] shall spend time with the Father as follows:

   (a)Until 1 January 2014:

   i.On Wednesdays from 9.00 am until 4.00 pm;

   ii.On Thursdays from 4.00 pm until 6.00 pm; and

   iii.On alternate Saturdays from 9.00 am until 3.00 pm;

   iv.On Christmas from noon until 5.00 pm on Boxing Day;

   v.At such other times as agreed between the parties.

   (b)Thereafter, and until [X] commences primary school as follows

   i.Each Tuesday from 3.00 pm or after pre-school until 4.00 pm on Wednesday;

   ii.On alternate Saturdays from 9.00 am until 4.00 pm

   iii.At such other times as agreed between the parties.

   (c)Thereafter, from the commencement of [X]’s first term of primary school until she commences Year 1:

   i.During school term:

   (a)  Each Wednesday from after school until 6.00 pm;

(b)  Each alternate weekend from after school on Friday until 3.00 pm on Sunday.

(c)  Such other times as agreed.

ii.During school holidays:

(a)For a block period of 3 nights in the April school holidays as agreed between the parties, but failing agreement, from 9:00 am on the second Monday of the holidays until 9:00 am on the following Thursday;

(b)For a block period of 4 nights in the June/July school holidays as agreed between the parties, but failing agreement, from 9:00 am on the second Monday of the holidays until 9:00 am on the following Friday;

(c)For a block period of 5 nights during the September/October school holidays as agreed between the parties, but failing agreement, from 9:00 am on the second Monday of the holidays until 9:00 am on the following Saturday.

(d)For one block period of 6 days during the Christmas School holidays as agreed between the parties, but failing agreement, from 9.00 am on 14 January until 9.00 am on 20 January.

(d)Thereafter:

i.During school term:

(a)Each alternate weekend from after school on Friday until 3.00 pm on Sunday;

(b)Each Wednesday from after school until 6:00 pm.

(c)For one week of each of the short school holiday periods as agreed between the parties, but failing agreement, from 9:00 am on the second Saturday of the school holiday period until 9:00 am on the following Saturday;

(d)During the Christmas School holidays for two, one week blocks as agreed between the parties but failing agreement, being the first and fourth weeks in January commencing on a Monday at 9.00 am and ending at 9.00 am on the following Monday.

(e)At such other times as agreed.

1. Notwithstanding the above, [X] will spend time and communicate with the Father as follows:

   (a)On Christmas Day 2013, from 11.00 am until 4.00 pm on Boxing Day.

   (b)From 2014 and following, from 11.00 am on Christmas Day until noon on Boxing Day in years ending in an odd number (except for 2013) and on the Saturday immediately preceding 23 December, from 9.00 am until 4.00 pm the following day in years ending in an even number;

   (c)On Father’s Day, if she is not already spending time with him, from 9.00 am until 5.00 pm;

   (d)On [X]’s birthday, if she is not already spending time with him, as agreed between the parties, but failing agreement, from after school until 6.00 pm if her birthday falls on a pre-school/ school day and from 2.00 pm until 7.00 pm if it falls on a non school day.

   (e)By telephone each second day, for periods not exceeding 10 minutes, when [X] is not in his care, and for the purposes of this Order, the Mother shall ensure [X] is available to receive phone calls from the Father and shall do all things necessary to assist [X] with telephone communication.

2. That the Father and Mother be personally available to care for [X] during the time they are to spend with her pursuant to orders 4, 5, 7 and 8.  In the event the Father or Mother are unable to care for [X] for periods longer than 4 hours, other than when she is at daycare/pre-school or school, each parent shall offer the other the first option to care for [X] during those periods.

3. Notwithstanding the above, [X] will live/spend time with the Mother as follows:

   (a)On Mother’s Day from 9.00 am until 5.00 pm;

   (b)On [X]’s birthday, if she is not already spending time/living with her, as agreed between the parties, but failing agreement, from after school until 6.00 pm if her birthday falls on a pre-school/ school day and from 2.00 pm until 7.00 pm if it falls on a non school day.

   (c)By telephone each second day for periods not exceeding 10 minutes, when [X] is not in her care and for the purposes of this Order, the Father shall ensure [X] is available to receive phone calls from the Mother and shall do all things necessary to assist [X] with telephone communication.

   (d)In even numbered years from 8.00 am on 23 December until 5.00 pm on 30 December to enable the Mother and [X] to travel to Brisbane to spend Christmas with her extended family.

   (e)In odd numbered years from 9:00 am on Christmas Eve until 11.00 am on Christmas Day.

   (f)That until [X] commences school, the Mother be at liberty to nominate six (6) one (1) week periods per calendar year to spend time with [X] so that she may be able to take [X] on holidays.  The Mother shall provide the Father with 21 days notice of her intention to spend time with [X] pursuant to this order and during the nominated periods, the Father’s time with [X] pursuant to these Orders shall be suspended.

4. In the event the Easter long weekend falls outside the school holidays, [X] will spend time with the Father as follows:

   (a)from 9.00 am on Easter Friday until 7.00 pm on Easter Sunday commencing in 2014 and each alternate year thereafter; and

   (b)from 9.00 am on Easter Sunday until 7.00 pm on Easter Monday commencing in 2015 and each alternate year thereafter

and shall spend the balance of the Easter weekend with the Mother.

1. For the purposes of [X] spending time with each party and unless otherwise agreed between the parties:

   (a)When changeover occurs at pre-school/school the parties or their nominee shall collect [X] from school at the commencement of the periods [X] is living/spending time with them and deliver [X] to pre-school/school at the conclusion of periods she is living/spending time with them.

   (b)For changeovers that do not occur at school, the father shall collect [X] from the mother’s residence at the commencement of periods of time [X] is to live with him and the mother shall collect [X] from the father’s residence at the commencement of periods of time [X] is to live with her, except that while the Father continues to reside at the home of the paternal grandparents, changeover at the conclusion of the Father’s time shall take place at [P] Car Park or such other place agreed between the parties.

2. Unless otherwise agreed between the parents in writing, the mother and father are permitted to travel interstate with [X] during periods in which [X] is living with them provided that the travelling parent provides the other party with fourteen (14) days’ notice (or such other notice period as agreed) of their travel plans including dates and times of travel and contact details for the duration of the trip.

3. The written consent of the other party is required before [X] is permitted to be removed from the Commonwealth of Australia. The travelling parent shall provide the other parent with at least sixty (60) days’ prior written notice (or other such notice period as agreed) of the intended trip, specifying the proposed dates and destination. The non-travelling parent will advise whether they consent to the trip within fourteen days of receiving the notice, and shall not unreasonably withhold their consent. In the event consent is provided, the travelling parent shall provide at least thirty (30) days’ written notice (or other such notice period as agreed) of the confirmed dates and times of travel, itinerary, return ticketing details and contact details for [X] for the duration of the trip.

4. That the Mother be permitted to remove [X] from the Commonwealth of Australia for a period of 15 days from 29 November 2013 to travel to Hawaii and that the Mother shall make [X] available to spend time with the Father on the day before her departure from 9.00 am until 4.00 pm and on the second day after her return from 9.00 am until 7.00 pm.

5. From 2016 interstate and overseas holidays shall be taken with [X] such that holidays will not result in [X] missing school, unless otherwise agreed in writing between the mother and father.

6. That the parties sign all documents and do all things necessary to change [X]’s surname to Brioli-Conte.

7. The mother and father shall do all things and sign all documents to obtain or renew an Australian Passport for [X] within fourteen (14) days of a written request being received. The cost of obtaining or renewing the Passport shall be shared equally by the parties and paid within fourteen (14) days of written request being received.

8. The mother shall retain [X]'s Passport and Birth Certificate.

9. The mother shall provide [X]'s Passport to the father at least seven days prior to any overseas travel and for the purposes of booking tickets and the Passport(s) shall be returned to the mother within seven days of [X]’s return from overseas travel or within 24 hours of tickets being booked.

10. For the purposes of communicating information between the parties about matters relating to [X], the mother and father shall:

    (a)Communicate by telephone including text messages to personal telephone numbers matters of an urgent nature only;

    (b)The mother and father shall keep each other informed about [X]’s day-to-day matters such as sleep times, routine, food eaten and any incidences whilst in their care via a communication book to be exchanged at changeover.

1. Neither parent shall make a commitment for [X] during a period when [X] will be living with the other parent, without first discussing the commitment with the other parent and obtaining their written consent to such commitment.

2. The mother and father shall advise each other of any extra-curricular sporting/recreational activities, birthday parties and school functions in which [X] is to be involved. The mother and father shall ensure, where possible that [X] shall attend such commitments when [X] is in their care. In the event a parent is unable to ensure [X]’s participation, they will contact the other parent, at least 48 hours in advance, to see if they are able to facilitate [X]’s attendance.

3. Neither parent is precluded from attending any preschool or school function or activity or extracurricular activity involving [X] in the event that such function or activity occurs at a time when [X] is with the other parent.

4. The mother and father shall keep each other informed at all times of their residential address, personal email address and personal contact telephone number and advise the other of any change within twenty-four (24) hours.

5. Each parent provide such consents and authorities as may be required:

   (a)by any pre-school/school attended by [X] to enable both the mother and father to receive reports, notices and correspondence relating to [X] and to permit both parents to attend special events or other school activities involving [X] and to speak to [X]’s teachers concerning the performance of [X]; and

   (b)by any hospital, medical practitioner or other health care professional including counsellors, psychologists and/or psychiatrists to receive information and reports in relation to [X]’s health, welfare and treatment.

6. The mother and father will inform the other of any medical treatment [X] receives and the treating doctor as soon as practicable after [X] has received the treatment and advise of any medication prescribed for [X] from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover.

7. Each parent shall as soon as practicable contact the other parent to advise in the event that [X]:

   (a)Becomes seriously ill;

   (b)Is hospitalised; or

   (c)Is involved in an accident, in circumstances requiring the attention of a medical practitioner.

8. Each party is at liberty to obtain all relevant medical records and consult [X]’s medical practitioners to obtain any information they require and these Orders are sufficient authority for that purpose.

9. That both parents be permitted to liaise directly with [X]'s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about [X]’s progress.

10. Without admitting the necessity for such an Order, each parent is restrained from denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of [X], or permitting [X] to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with while [X] is in their presence.

11. That within 7 days of the date of these Orders, the Father shall provide the certificate of completion by him of the St John’s Ambulance First Aid Course and should that not occur the father shall enrol in and complete the said course. 

12. That the parties use their best endeavours to ensure that no third party post photographs of [X] on any social media websites and that only the mother and father may make such postings.

Schedule Two

Applicant Father’s proposed orders

1. That the Child, [X], born [in] 2010, shall live with the Mother.

1. That the parties shall have equal shared parental responsibility for decisions concerning [X]’s long term care, welfare and development

1. Notwithstanding Order 2, in the event that a dispute arises in relation to where [X] shall attend school, the parties shall do the following:

(a)Provide each other with notice of the school at which they would like [X] to attend including the provision of a prospectus of the proposed school, not less than 9 months prior to the intended enrolment date;

(b)Attend any open days/interviews/orientation days offered by each school in the period after notice is provided and enrolment is due to take place;

(c)Attend on a registered child dispute resolution practitioner (with the costs of such attendance to be shared equally) for the purposes of attempting to resolve the dispute;

(d)In the event, within 21 days of any mediation conducted by a Registered Child Dispute Resolution Practitioner, an agreement is not reached about the school [X] will attend, [X] will attend the State school closest to the Mother’s residence.

1. That [X] live and spend time with the father as follows:

   4.1)That until [date omitted] 2013:

   (a)Pursuant to Order 5.1 of the Orders made on 23 July 2012.

   4.2)That until [X] commences school:

   (a)On Friday 25 October 2013 and each alternate Friday thereafter, from 4.00pm to 7.00pm;

   (b)Commencing from 29 October 2013, from 3.00pm Tuesday until 4.00pm Wednesday each week; and

   (c)Commencing from 2 November 2013, from 9.00am Saturday to 5.00pm Sunday and each alternate week thereafter.

   4.3)That upon [X] commencing primary school, and commencing the first week of the school term:

   (a)Each Wednesday from after school (or 3.00pm if [X] does not attend school) to 7.00pm;

   (b)From after school Friday (or 3.00pm if [X] does not attend school) to 9.00am the next school day and each alternate week thereafter; and

   (c)During the school holidays as follows:

   Term 1 of Kindergarten

   i.For the first 3 nights of the gazetted school holiday period in term 1 of the year [X] commences school commencing at 9.00am on the first day of the gazetted school holiday period and concluding at 10.00am the fourth day thereafter;

   Term 2 of Kindergarten

   ii.For the first 4 nights of the gazetted school holiday period in term 2 of the year [X] commences school commencing at 9.00am on the first day of the gazetted school holiday period and concluding at 10.00am on the fifth day thereafter;

   Term 3 of Kindergarten

   iii.For the first 5 nights of the gazetted school holiday period in term 3 of the year [X] commences school commencing at 9.00am on the first day of the gazetted school holiday period and concluding at 10.00am on the sixth day thereafter;

   First Grade Onwards

   Except for as set out in Order 4.4:

   iv.From the time [X] commences Grade 1, for the first half of all the gazetted school holiday periods in all odd numbered years commencing from after school on the last day of school (immediately before the start of the holiday period) or any pupil free day if earlier and ended at 3.00pm on the day constituting half the school holiday periods; and

   v.From the time [X] commences Grade 1, for the second half of all gazetted school holiday periods in all even numbered years commencing from 9.00am on the day constituting half the school holiday term to the beginning of school on the next school day.

   4.4)In respect of the December/January school holiday periods as follows, and until [X] is 8 years old:

   (a)    From 9.00am on the first day of the gazetted school holiday period until 6.00pm on the seventh day thereafter and repeating in alternate weeks thereafter until the conclusion of the school holiday term; and

   (b)    Upon [X] reaching the age of 8 years; as per Orders 4.3(c)(iv) and (v).

   4.5)That unless [X] is already living or spending time with the father in accordance with preceding Orders, [X] shall spend time with the father on the following additional days and times (and the mother’s time with [X] is corresponding suspended during these periods):

   4.5.1)On [X]’s birthday each year by agreement of the parties but failing agreement:

   (a)    If [X] is at school and her birthday falls on a school day then from after school to 6.00pm;

   (b)    If falling on a non-school day, from 2.00pm to 7.00pm.

   4.5.2)On Father’s day each year from 9.00am to 7.00pm;

   4.5.3)On the father’s birthday each year by agreement of the parties but failing agreement:

   (a)If [X] is at school and the father’s birthday falls on a school day then from after school to 6.00pm;

   (b)If falling on a non-school day, from 2.00pm to 7.00pm.

   4.5.4)On Christmas Day from 9.00am to 7.00pm commencing in 2013 and each alternate year thereafter;

   4.5.5)On Christmas Eve from 12.00pm to 9.00am Christmas Day commencing in 2014 and each alternate year thereafter;

   4.5.6)On Boxing Day from 9.00am to 7.00pm commencing in 2014 and each alternate year thereafter;

   4.5.7)From 9.00am Easter Friday to 7.00pm Saturday commencing in 2014 and each alternate year thereafter;

   4.5.8)From 9.00am Easter Sunday to 7.00pm Easter Monday commencing in 2015 and each alternate year thereafter;

   4.5.9)From 10.00am New Years Eve to 10.00am New Years Day commencing in 2014 and each alternate year thereafter;

   4.5.10)From 10.00am to 7.00pm New Years Day; and

   4.5.11)On such other days and times as the parties may agree.

   4.6)By telephone each second day, for periods not exceeding 10 minutes, when [X] is not in his care, and for the purposes of this Order, the mother shall ensure [X] is available to receive phone calls from the father and shall do all things necessary to assist [X] with telephone communication.

2. That if, subject to this Order, [X] is living or spending time with the mother and the mother is not in a position to spend time with or otherwise care for [X] then the mother must promptly notify the father and give the father the first option to care for [X] during any such time she is unable to. This Order does not apply in the following circumstances:

   (a)In respect to times of short duration when the mother is absent and away from the child for no more than 4 hours, provided the [X] is in the care of one or more the maternal grandparents;

   (b)In respect to time when the father has agreed in writing [X] can be placed in child care or preschool; or

   (c)In respect to time when [X] is at school.

3. That the father:

   (a)Collect [X] from school at the commencement of visitation on days when his time with [X] commences after school on a school day; and

   (b)Deliver [X] to school at the conclusion of visitation on days when his time with [X] concludes on the morning of a school day.

4. For changeovers that did not occur at school, the father shall collect [X] from the mother’s residence at the commencement of periods of time [X] is to live with him and the mother shall collect [X] from the father’s residence at the commencement of periods of time [X] is to live with her, expect that while the father continues to reside at the home of the paternal grandparents, changeover at the conclusion of the father’s time shall take place at [C] Park, [W] or such other place agreed between the parties.

5. That the mother be and is hereby restrained from:

   (a)Relocating with [X] to a place more than a 20 kilometre radius from [address omitted], [T]; and

   (b)Changing or attempting to change the name of [X] or from using or allowing [X] to be known by any name other than the name [X] Conte.

6. The written consent of the other party is required before [X] is permitted to be removed from the Commonwealth of Australia. The travelling parent shall provide the other parent with at least sixty (60) days’ prior written notice (or other such notice period as agreed) of the intended trip, specifying the proposed dates and destination. The non-travelling parent will advise whether they consent to the trip within fourteen days of receiving the notice, and shall not unreasonably withhold their consent. In the event consent is provided, the travelling parent shall provide at least thirty (30) days’ written notice (or other such notice period as agreed) of the confirmed dates and times of travel, itinerary, return ticketing details and contact details for [X] for the duration of the trip.

7. That the Mother be permitted to remove [X] from the Commonwealth of Australia for a period of 15 days from 29 November 2013 to travel to Hawaii and that the Mother shall make [X] available to spend time with the Father on the day before her departure from 9.00am until 4.00pm and on the second day after her return from 9.00am until 7.00pm.

8. From 2016 interstate and overseas holidays shall be taken with [X] such that holidays will not result in [X] missing school days, unless otherwise agreed in writing between the mother and father.

9. The mother and father shall do all things and sign all documents to obtain or renew an Australian Passport for [X] within fourteen (14) days of a written request being received. The cost of obtaining or renewing the Passport shall be shared equally by the parties and paid within fourteen (14) days of written request being received.

10. The mother shall retain [X]'s Passport and Birth Certificate.

11. The mother shall provide [X]'s Passport to the father at least seven days prior to any overseas travel and for the purposes of booking tickets and the Passport(s) shall be returned to the mother within seven days of [X]’s return from overseas travel or within 24 hours of tickets being booked.

12. For the purposes of communicating information between the parties about matters relating to [X], the mother and father shall communicate by telephone including text messages to personal telephone numbers matters of an urgent nature only. The mother is hereby restrained from otherwise text messaging or emailing the father at anytime except in the case of an emergency.

13. Neither parent shall make a commitment for [X] during a period when [X] will be living with the other parent, without first discussing the commitment with the other parent and obtaining their written consent to such commitment.

14. The mother and father shall advise each other of any extra-curricular sporting/recreational activities, birthday parties and school functions in which [X] is to be involved. The mother and father shall ensure, where possible that [X] shall attend such commitments when [X] is in their care. In the event a parent is unable to ensure [X]’s participation, they will contact the other parent, at least 48 hours in advance, to see if they are able to facilitate [X]’s attendance.

15. Neither parent is precluded from attending any preschool or school function or activity or extracurricular activity involving [X] in the event that such function or activity occurs at a time when [X] is with the other parent.

16. The mother and father shall keep each other informed at all times of their residential address, personal email address and personal contact telephone number and advise the other of any change within twenty-four (24) hours.

17. Each parent provide such consents and authorities as may be required:

    (a)By any pre-school/school attended by [X] to enable both the mother and father to receive reports, notices and correspondence related to [X] and to permit both parents to attend special events or other school activities involving [X] and to speak to [X]’s teachers concerning the performance of [X]; and

    (b)By any hospital, medical practitioner or other health care professional including counsellors, psychologists and/or psychiatrists to receive information and reports in relation to [X]’s health, welfare and treatment.

18. The mother and father will inform the other of any medical treatment [X] receives and the treating doctor as soon as practicable after [X] has received the treatment and advise of any medication prescribed for [X] from time to time and provide the medication and appropriate instructions for its administration at the time of any changeover.

19. Each parent shall as soon as practicable contact the other parent to advise in the event that [X]:

    (a)Becomes seriously ill;

    (b)Is hospitalised; or

    (c)Is involved in an accident, in circumstances requiring the attention of a medical practitioner.

20. Each party is at liberty to obtain all relevant medical records and consult [X]’s medical practitioners to obtain any information they require and these Orders are sufficient authority for that purpose.

21. That both parents be permitted to liaise directly with [X]’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about [X]’s progress.

22. Without admitting the necessity for such an Order, each parent is restrained from denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of [X], or permitting [X] to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with while [X] is in their presence.

23. The mother shall continue to undertake cognitive behavioural therapy with an approved specialist on the following terms:

    (a)The mother shall within 14 days attend upon her general practitioner with a copy of Dr G’s report and request a referral to an appropriate practitioner;

    (b)The mother shall then undertake the cognitive behavioural therapy with that practitioner at such times as he or she recommends for a period of not less than 12 months;

    (c)The mother shall advise the father of the name of that practitioner; and

    (d)The mother shall meet the cost (if any) of the cognitive behavioural therapy undertaken.

24. The mother is restrained from taking [X] to or discussing with [X] her therapy.