D and R - [2000] FMCAfam 86

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & R

[2000] FMCA fam 86

Applicant:

F S D

Respondent:

H M R

File No:

ZM4223 of 2000

Delivered on:

15 December 2000

Delivered at:

Melbourne

Hearing Dates:

29 & 30 November, 4 & 5 December 2000

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Ms R. Stoikovska

Solicitors for the Applicant:

Slater & Gordon Solicitors

Counsel for the Respondent:

Ms C. Molyneux QC

Solicitors for the Respondent:

Abbott, Stillman & Wilson Solicitors

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

ZM 4223 of 2000

F S D

Applicant

And

H M R

Respondent

REASONS FOR JUDGMENT

Introduction

The applications concern the contact that the father should have to the child of the relationship O K D born 10 June 1998 (“O”). The proceedings were commenced by application by the father filed on 9 August 1999 in the Family Court of Australia. On 28 August 2000 the proceedings were transferred to the Federal Magistrates’ Court of Australia for final hearing and the matter was heard on 29 & 30 November and 4 & 5 December 2000. Prior to the proceedings, being transferred to the Federal Magistrates Court a number of interim orders providing for the father to have contact were made.

Orders sought

By The Mother :
(1)That the Father have contact with the child of the relationship O K D born 10 June 1998 as follows:
(a)Until the commencement of the first term in the academic year 2003 each alternate weekend from 9am Saturday until 4pm Sunday;
(b)Until the commencement of the first term in the academic year 2003 for two one-week periods upon the Father giving the Mother no less than one calendar month’s written notice of the week he seeks to have contact.
(2)From the commencement of the first term in the academic year 2003 the Father have contact as follows:
(a)Each alternate weekend (“alternate weekend”) from the conclusion of school on Friday until 5pm on Sunday to commence on second weekend of the term in each alternate year commencing 2003 and the first weekend of the term in each alternate year commencing 2004;
(b)For the second half of all term holidays in each alternate year commencing 2003;
(c)For the first half of each term school holidays in each alternate year commencing first term 2004.
(3)That from the commencement of first term in the year 2003 the Father have contact with the said child during the summer school holidays as follows:
(a)For a period of no less than one half of the summer school holidays but such period to be divided into separate periods each being no longer than one week with the child being returned to the Mother for a period of two / three days before the next contact period takes place during the summer school holidays.
(4)That the Father’s contact referable to the summer school holidays shall be during the second half in the year 2003/2004 and the first half in 2004/2005.
(5)That upon the commencement of first term in the year 2005 the Father’s summer school holiday shall be taken in one continuous period commencing the second half in the year 2005/2006 and each alternate year thereafter and in the first half in 2006/2007 and in each alternate year thereafter.
(6)That alternate weekend contact shall be supervised during all term and summer school holidays.
(7)That the Father shall have further contact with the child as follows:
(a)On Father’s Day from 9am to 4pm;
(b)On the Father’s Birthday from 3.30pm to 6.30pm;
(c)On the child’s Birthday from 3.30pm to 6.30pm;
(d)Each Christmas Day from 8am to 6pm.
(8)That until the child commences school in 2003 the Father shall collect the child at the commencement of each contact period from the home of the Ms J T and, shall return the child to Ms J T upon the conclusion of his contact period.
(9)That in the event Ms T is not available at either the commencement or conclusion of contact then the child shall be collected by the Father from the Mother at the commencement of the contact period and shall be returned by the Father to the Mother at the conclusion of the contact period at a place nominated by the Mother.
By The Father:
(1)That all previous interim children’s orders be discharged.
(2)That the Father and the Mother continue to retain joint parental responsibility for the long term care, welfare and development of the child of the relationship O K D born on 10 June 1998.
(3)That the child reside with the Mother.
(4)That the parties shall be responsible for all decisions about the child’s day to day care, welfare and development when she is in their respective care.
(5)That the Father have contact to the child as follows:
(a)In each two week cycle as follows:
(i)     Week one:
a.From 3.30pm Wednesday until 9.00pm Thursday;
b.From 5.00pm Friday until 9.00am Monday to be extended to 9.00am Tuesday in the event that Monday is a Public Holiday.
(ii)    Week two:
a.From 5.00pm until 8.00pm on Tuesday and Thursday.
(b)For a period of two weeks holiday contact in each year until the child commences kindergarten contact to be extended to provide for half of the kindergarten / school term and long summer vacation holidays at times to be agreed between the parties and failing agreement the second half;
(c)From 10.00am until 6.00pm on Father’s Day should it not fall on a contact weekend (similarly contact shall cease at 10.00am on Mother’s Day should it fall on a contact period);
(d)For a period of fours hours on the child’s birthday and the Father’s birthday at times to be agreed between the parties;
(e)In relation to Christmas:
(i)     From 6.00pm on 24 December 2000 until 2.00pm on 25 December 2000 and each alternate year thereafter;
(ii)    From 2.00pm on 25 December 2001 until 6.00pm on 26 December 2001 and each alternate year thereafter.
(f)Reasonable telephone contact;
(g)Such further or other contact as can be agreed between the parties;
(h)That the Father’s contact to the child as referred to in Paragraphs 4.1 (a) and 4.1 (b) hereof shall cease during holiday periods and week one shall recommence the first week after the holiday period concludes;
(i)That for the purpose of contact changeover as provided for in Paragraph 4.1 the Father shall collect the child at the commencement of contact and return the child at the conclusion of contact to the child’s creche / kindergarten / school;
(j)For the purposes of contact otherwise provided for the Mother shall deliver the child to the Father at the commencement of contact and the Father shall deliver the child to the Mother at the conclusion of contact at a venue mutually agreed between the parties.
(6)That the Mother provide or authorise the kindergarten / school to provide copies of the child’s kindergarten / school reports, notices, newsletters or other information of or incidental to the child or the child’s activities and the Father shall be at liberty to attend kindergarten / school functions and parent teacher interviews.
(7)That the Mother shall provide or authorise the kindergarten / school to provide to the Father a duplicate copy of the child’s kindergarten / school photographs and reports and the Father shall be responsible for the costs of same.
(8)That the Father and Mother shall forthwith notify the other should the child become ill or require medical treatment or hospitalisation during their care.
(9)That the Father be provided for the first opportunity to care for the child when the Mother is unable to do so by way of reason of illness, work commitments, study commitments or social engagements and activities.
(10)That the Mother undertake not to denigrate the Father to the child or in the child’s hearing or vicinity.
(11)That O not attend upon Dr R or any other psychiatrist or psychologist for treatment or therapy without prior consultation with the Father or Order of the Court.
In relation to the Orders sought by the mother, it should be noted that in her outline of case document filed on 23 November 2000, she sought Order in terms of her Form 8 response filed 24 August 2000. In that Application she sought that the father have contact with O on each alternate Saturday from 9.00 am until 5.00pm. During the course of the hearing it became apparent that as a result of advice received the wife was prepared to continue overnight contact and hence the Orders sought by the mother at the conclusion of the hearing reflect a proposition that the father have overnight contact.

Background

The father was born on 12 January 1964 and is 36 years of age. The mother was born on 17 May 1957 and is 43 years. The parties commenced cohabitation in 1996 and O was born on the 10 June 1998. When O was born the mother left her employment to look after her. The father was in full-time employment and completing his Masters Degree by part-time study.
On the 24 June 1999 the Wife left the relationship taking O with her. The father was not aware that she was going to leave and she left behind for him a note dated 24 June in which she indicated the relationship was at an end, asked him not to contact her and told him that contact would be made through her solicitor. She made no mention of O in that letter.
On the 25 June the father received a letter from the mother’s solicitor Denise J King which was dated 23 June and indicated that she had received instructions from the mother to act on her behalf in connection with “the finalisation of property matters arising out of your cohabitation with Ms R any connection with matters of parental responsibility for the child of your relationship with Ms R namely O K D born 10 June 1998”.
The letter went on to make a proposal in relation to property and finally to deal with the question of parenting orders. It said “as for parental and residential responsibility, my client seeks sole parental and residential responsibility for the child O K D born 10 June 1998” and “considers that the question of your contact with the child should be reserved”. The letter went on to say that the parenting matter should be dealt with by way of Family Court Orders. The husband was invited to refer the matter to his legal practitioner. The mother’s ultimate proposals were for 2 hours per fortnight, supervised. After the husband consulted solicitors and they wrote to the mother’s solicitors regarding contact to O no agreement could be reached and on the 9 August 1999 the father commenced proceedings seeking contact.
On the 18 August 1999 Orders were made by consent providing inter alia for interim residence in favour of the mother and the father to have contact with O every Sunday between 11.30 am and 2.30 pm and on Monday and Wednesday for three hours at a time to be agreed. Such contact was to be supervised. The father denied the necessity for supervision, but was prepared to agree that it should occur. The orders also provided for the father, mother and child to attend upon a psychologist D D for the purposes of preparation of a report regarding contact.
On 15 September 1999, the mother filed a Notice of Risk of Child Abuse (Form 66). The events in relation to the notice were somewhat curious. The wife said that she had filed it on the advice of her solicitors although under cross-examination she remained firm that the incident in 1999 to which it referred, had occurred and she said that it was withdrawn because “the document wasn’t followed through”. She said that it was one of the reasons, that she wanted supervised contact to take place but that she had now “put the allegations behind me”. On the 25 October 1999, there were further Interim Contact Orders made and an Order by Consent providing for the Notice of Child Abuse to be withdrawn. The Orders provided for the father to have a minimum of eight hours contact per week at times and days to be agreed upon by the parties save for one occasion each week-end when the father was to have block contact for a period of four hours and of no less than three hours.
The hearing was adjourned and on the 4 April, further Interim Orders were made in the following terms:
(1)That the father have contact to O as follows:
(a)Each alternate weekend from 9.00am until 3.30pm Saturday and from 9.00am until 3.30pm Sunday commencing the 8 April 2000;
(b)Each alternate weekend from 9.00am Saturday until 11.00am. Sunday commencing 20 May 2000;
(c)Each Wednesday from 3.30 pm until 5.30 pm commencing 12 April 2000.
In Ms D’s first report which was issued on 25 October 1999 she believed there was goodwill between the parties despite the separation, that a phased-in program of increasing contact between O and her father seemed appropriate, that there seemed little need for supervision and that Mr D was competent to care for his daughter.
Ms D thought there was little reason in continuing with the litigious process and that both parties who she found to be intelligent, insightful people, would have O’s interests at heart and should be able to achieve agreement about the contact the husband should have.
On the 11 April the father’s solicitor’s wrote to the mother’s solicitors indicating that they thought the Registrar had overlooked an issue of contact to O on birthdays and Father’s Day and sought that the mother agree to the father’s proposals for him to have contact to O on those occasions. A month later on the 10 May the father’s solicitors wrote again noting they had received no response in relation to the issue of birthdays, Father’s Day and Christmas. They also indicated that the father’s employers were placing considerable pressure upon him in relation to work commitments in that they had been inflexible in relation to time off to attend the Court hearing. Further, his new timetable for that semester had been released and he had lectures on Tuesdays and Wednesdays, which lasted until 9.30pm and could not change lecture times. Accordingly the father asked that the mother alter his weekday contact from Wednesday to Thursday from 4.30 pm to 6.30 pm.
On the 18 May the mother’s solicitors replied indicating that she was not agreeable to the alteration to the Court ordered time of Wednesday afternoon contact and would continue to adhere to the terms of the Order. She expressed the view that if the husband was unavailable due to work or study commitments at the weekends then he should return O to her.
On the 2 June the Father’s solicitors wrote again to the mother’s solicitors indicating that they had omitted to refer to the occasion of O’s birthday on 10 June indicating that the father would like to spend three hours with her on her birthday and would fit in with any plans that the mother might already have to celebrate the birthday.
On 20 July interestingly the mother’s solicitors responded on the setting out the mother’s reasons for not agreeing to change the day but also indicating in that letter “we are also instructed the present arrangement that has been put in place does in fact work for O and in those circumstances our client is loathe to alter something which is now in his daughter’s best interest”.
On the 15 August 2000 the father filed an Application seeking a variation of contact, seeking some specific changes and in particular seeking contact on Father’s Day, the child’s birthdays and Christmas Day. On the 28 August 2000 the matter was transferred by consent to the Federal Magistrates Court and Interim Orders were made providing for a variation of contact on Wednesday from 3.30 pm until 5.30 pm, on Father’s Day from 9.00 am until 4.00 pm and on each alternate weekend from 3.00 pm Saturday until 4.00pm on Sunday. The changeovers were to occur at the BP Service Station, C Street, B.

Evidence relied upon

Each party set out in their Outline of Case Document, the documents they were relying upon. Ms D prepared a final report for the hearing which was attached to an Affidavit filed on the 29 November 2000 and that report which is dated 10 November 2000 together with an earlier report dated the 25 October 1999 was admitted in evidence. In addition to the Affidavits relied upon by him and set out as his outline of case document filed on 24 November 2000, the Father relied upon an Affidavit of M O.

The father’s case

The father relied upon the report of Ms D in November 2000 which endorsed his proposals for contact and recommended contact each week alternate weekend from Friday to Monday plus the current Wednesday evening. The Father’s case was based on the proposition that he had a good relationship with O which was reciprocated and that the Mother had consistently placed hurdles in his path in relation to contact. The Mother denied that was so.

The mother’s case

The mother’s proposal was to reduce the contact presently occurring. There were a number of differences between the parties in relation to their respective proposals, particularly with regard to holidays, however the main difference was that the mother’s proposals saw a continuation of the alternate weekend contact from 9.00 am Saturday until 4.00 pm Sunday, but the removal of Wednesday evening contact. It was also clear that the mother had changed her position from seeking only contact during the day and at weekends to overnight contact as a result of advice from Counsel. Her case in essence was that despite the observations of Ms D and at least one other witness as to the positive relationship between O and her father, she found O unsettled after contact periods with him and was of the view that the only way of dealing with O’s distress and anxiety was to reduce the time that O spent with her father (and consequently increase the time spent with her).

Evidence

The evidence of the parties is contained in their respective affidavits, some oral evidence and what emerged from cross-examination.

The mother

The crux of the Mother’s case was what she asserted to be the ongoing problems encountered by O that de-stabilised her for long periods of time after contact with her Father. This emerges best from her affidavit filed on 23 November 2000 and in particular Paragraph (4) and (5) thereof. In that affidavit the Mother asserts that she does not believe it is in O’s best interest for the Father to have overnight contact to her and sets out that there have been ongoing problems in relation to contact arrangements which have destabilised O’s life for extended periods of time after each contact visit. She then details the particulars of instances since August 2000. Suffice it to say in relation to the instances described, that they refer to instances proximate to the changeover between the parents of O and in the main, do not deal with ongoing destabilising problems referred to by the Mother. Her affidavit filed on 23 November 2000 however, refers to unsettled behaviour as described in her affidavit sworn on 24 August 2000. In that affidavit an in particular, in Paragraph (23), she details some incidents occurring in late 1999 and early 2000 and then in Paragraph (c), (d) and (e) thereof, describes in summary what she believes the effect of the introduction of overnight contact has had on O and why it is not in her best interests. In subparagraph (e) of Paragraph (23) of the affidavit referred to she says:
“for the above reasons, I believe it is appropriate for the existing Orders for overnight contact be suspended until properly investigated and that, in lieu of such contact, visits occur on a fortnightly basis on Saturday day time only.”
In Paragraph (24) of that affidavit she goes on to say that she believes it is appropriate for O to have ongoing sessions with Dr. P R, a psychiatrist and:
“I am also concerned that issues concerning her mental and physical wellbeing are investigated for the purposes of preparation of a report to assist this Honourable Court in making the appropriate ongoing orders. Such sessions would also enable a psychiatrist to discuss issues with the father and I.”

Changeovers

The arrangement the parties had for the collection and return on O bears some particular consideration. At the Mother’s instigation, explained on the basis that she had an intervention order against the Father, she had someone with her at the time of changeovers and in more recent times, particularly this year, that person has been Ms J T. In addition the changeovers occurred at a neutral place at the BP service station in B. Finally, at the request of the Mother, there was to be no physical contact between the parents or any physical proximity between them. Translated into a practical arrangement, this resulted in the Mother requiring the Father to place O on the ground and to walk across, what was described in the evidence as “no man’s land” to her Mother. It was conceded that this caused difficulties on occasions. The child was young and sometimes, particularly when the ground was wet, did not want to be put on the ground and would cry or cling to her Father’s leg. She would not always walk across the space to her Mother and this led to accusations that the Father was hanging on the O and would not always hand her over. In Ms Ts’ affidavit, she refers to the changeovers as “artificial and emotionally charged situations.”
Ms T assumed, incorrectly, that the requirement to place the child on the ground was in the court order for contact.
The Father conceded that the Mother had complied with all of the Orders for contact and conceded further that when the Orders for contact had involved the parties negotiating times between themselves, they had been able to do so although he indicated that it had not been easy. He further conceded that he had no reason to doubt her observations regarding O or to doubt what she said as far as her concerns about O’s anxiety and distress when with her.
The Wife’s Counsel submitted that the Mother had made contact work and that there was no evidence that she had created hurdles to contact and that her approach simply reflected a concerned parent who was looking for reasons for the child’s apparent distress and anxiety during periods that she saw as following contact. She submitted that was evidence of a very close relationship between the Mother and daughter and that the Mother was simply seeking answers to behavioural problems and posed the solution that the child needed to spend more time with the Mother which could be achieved best by her time with her Father being reduced. It was put that the explanation for the child’s behaviour could be that the child was suffering a sense of loss because she was having consistently less time with her Mother and more time with her Father (and it must be said at creche).
There was certainly evidence to support the submissions that the Mother had complied with orders once they had been made, however, the evidence falls short in my view of establishing that the Mother has ever wholeheartedly embraced the relationship between the Father and child and there were a number of instances which indicated her attitude.

The initial separation

At separation the Mother left without any firm proposals for contact and when her solicitors were instructed they initially proposed that the question of contact be reserved. The Father had to bring an application before he obtained regular contact.

The sexual abuse allegation

This is a curious allegation. The Mother filed a Notice of Abuse which she then said had been the idea of her solicitor but nevertheless, her evidence was that it was withdrawn not because she thought the allegations were baseless but because as she said, the were “not followed up”.
At no time did she recant from the allegations that she made and in fact indicated in her evidence that she thought there was some basis for them. This was the case, even though the incident arose well before the parties separated when they were living together and in circumstances in which the Mother did not take any steps in relation to the allegations until the proceedings were on foot. In her evidence she said that she had “put the allegations behind me.”
It is hard to reconcile the withdrawal of the Notice of Abuse with her asserted continued concern that the Father was responsible for sexual perversion with his daughter.

The changes sought by the father

The Father had sought changes to the Orders for contact. On 4 April 2000 orders were made that the Father have contact with O:
(1)Each alternate weekend from 9.00am until 3.30pm Saturday.
(2)9.00am until 3.30pm Sunday.
(3)Each alternate weekend from 9.00am Sunday until 11.00am Sunday.
(4)Each Wednesday from 3.30pm until 5.30pm.
Following the making of these orders, the Father’s evidence was that his employers told him that it was not possible for him to leave work to meet a 5.30pm deadline and then when his timetable for the semester was published, the times were not compatible. The Mother conceded that she would not agree to vary the orders and intended to stick to the orders that were made as in her view this provided stability for O. She took the view that the Father could have organised himself prior to the Orders being made and should have known what his semester times were and her attitude was one of inflexibility despite the fact that she relied upon O’s schedule as the basis for her rejection.
That inflexibility also has to be seem in the context that in addition the Father sought to have O for some time on his birthday. That request was again refused by the Mother who then argued that the matter had been before the Court and no Order had been made. The explanation for her attitude in relation to his birthday was partly that it was not granted to him on 4 April 2000, and partly that he could celebrate it on another day. She said that birthdays and Mother’s Day were not important to her and that she would not mind if O was with the Father for her birthday. Whilst this might be the Mother’s attitude, it clearly takes no account of the importance of such occasions to the Father and unilaterally imposes her views on him.
Whilst there could be no argument that she had complied precisely with the Orders, the overall impression given in the witness box by her in relation to these matters was that she had little empathy for the relationship between the Father and daughter or any real desire to foster it.

The child care enrolment documents

Exhibit “H4” is a confidential enrolment document from the H B child care centre. The document was filled in by the Mother for the purposes of providing details to the child care centre. The Father’s details were left blank and under the subheading of “Guardian” the Wife had written “Legal Guardian – emergency events – A H” The surname for the child was D-R and under the heading “Other person to be notified” the two persons named were M W and A H. Four people were nominated for collecting the child, none included the Father.
The Wife’s explanation for having made no mention of the Father at all on this form was that the original child care enrolment form had been subpeonaed and was at the Family Court and this was a replacement form and filled in haste. Not only did the Mother not produce any other forms or documents which had been subpoenaed but it is clear from the document that four pages of quite detailed questions were filled in by the Mother on 27 March 2000 including details of the child’s immunisation record and provisions of the names of four persons who could collect the child from the child care centre. It is quite obvious that the Father’s name could easily have been inserted and should have been. I do not accept the evidence of the Mother as to the explanation for omitting details of the Father as it is clear that she had plenty of opportunities to write in the names of other people and the form does not appear to have been prepared in the haste she suggested. It is however, consistent with an attitude which diminishes and marginalises the role of the Father.

The proposal for reduction of overnight contact

Up until the commencement of the case, the Mother’s proposal had been to cut out the Wednesday evenings which the Father presently enjoyed with O and to also cut out overnight contact on alternative weekends. In her evidence however, she said that this was from her point of view, a trial to see if O’s behaviour and general stability improved as a result of the reduction of time with the Father. During the course of her evidence the Wife said that her proposal to reduce contact between the Father and O by cutting out overnight periods was because she though that O wasn’t coping well with frequent contact. However, she indicated that it had been her proposal that this should only be for a period of six months. The fact however, that her evidence was that it was for a six month period was apparently not conveyed to Ms D, the expert, and did not find its way into either her affidavit or the orders that she sought.

D D’s evidence

Whilst in her first report Ms D felt there was little reason to continue with the litigious process and believed that there was goodwill between the parties sufficient to enable them to resolve the matter, by the time the second report was prepared that view had changed and it was clear to her that the parties needed a judicial determination.
Ms D concluded that the Mother wanted to significantly reduce O’s time with her Father to one day per fortnight with no overnight contact. The Mother’s reasoning being that the reduction in contact would settle O’s behaviour. She described to Ms D that it was taking four days to settle O down after the alternate weekend contact with the Father, and that she had consulted Dr R, a psychologist about the child. Ms D concluded that whilst the Mother displays the same level of commitment, care and attention towards O as does Mr D,
“at the same time she also displays an underlying fragility and degree of anxiety that may preclude her from understanding or acknowledging the child’s own need to spend significant time with her Father” … Ms R’s own anxiety and stress from being separated from O is revealed in Ms R’s statement to the psychologist, that O is, … “too young to be taken away from her Mother.” … “Rather than the child alone experiencing separation and anxiety it is suggested that its reverse may be the case, namely that the source of the anxiety lies within Ms R and that it is against this that O reacts.”
Ms D observed that O’s interaction with her Father was a good interaction and that there was no anxiety, distress or hesitation in O’s observed behaviour with her Father. She commented that the observed interaction:
“was indicative of a warm, affectionate and loving relationship between Father and daughter. Mr D clearly provides O with a strong, secure and stable reference point in her life and, most importantly, emotional support.”
O was also observed to relate well to her Mother although not exhibiting however the same independent plays as was observed with her Father. She noted that whilst O was able to separate from her Mother quite well and displayed no anxiety at not being with her all the time, when her Mother was present she wanted her full attention. She concluded that this interaction seemed:
“indicative of discrete peculiarities and interdependencies in the mother – daughter relationship.”
She noted that both the Mother and Father were emotionally fragile people. Given her observations and the description by the Father that he has no troubling experiences with O, which conflicted with the Mother’s versions of O’s behaviour with her, Ms D concluded that there must be some other reason why O displays the troubling behaviour the Mother reports and suggested that O may be picking up indications that Ms R is having some personal difficulty in separating from the child. She concluded that there is no evidence that the child’s distressed behaviour with the Mother can be directly linked to the Father / daughter relationship. Having observed O with the Father she concluded that it was difficult if not impossible to accept that O’s time with the Father should be reduced and she concluded that reducing the time would severely erode the Father / Daughter relationship and potentially cause O serious emotional stress and anxieties.
She formed the view that Mr D’s proposals for contact seemed reasonable and went some way to meeting O’s emotional needs, to spend frequent, quality time with her Father.
She endorsed the recommendations of the previous report that there be a phased in program of increasing contact between O and her Father and recommended each alternate weekend from Friday until Sunday plus the current Wednesday. The relationship between Mr D and O is also noted in the affidavits of M C, I C and J K. These witnesses were not challenged.
More importantly, B M whom is employed by Dial an Angel and had been employed by the Husband as a supervisor when he was required to have supervision, deposed to a good positive relationship between the Father and Daughter. The Mother conceded that she had been encouraged by reading the comments in Ms M’s affidavit.
In relation to her proposals, Ms D indicated in evidence that given the young age of O, the frequency of contact is important and that once a fortnight was too infrequent and that O may feel a sense of loss, rejection and have difficulty in understanding why the Wednesday nights had been eliminated.
Ms D conceded in cross examination that she had no reason to doubt the description of O’s anxiety given by the Mother. She conceded that it was possible that O’s behaviour could be a result of the reducing time spent with her Mother and conceded that she had not investigated the actual source of the child’s anxiety, other than her observations. She conceded that her behaviour might be consistent with a child who wants more of her Mother. Nevertheless, she remained firm that she did not agree that the level of contact between O and her Father should be reduced because she had no reason to believe that the anxiety and stress was related to the Father. She however conceded that she had made her proposals without really considering that O might need more time with her Mother. Despite this concession Ms D remained firm in the importance she placed upon the positive relationship between O and her Father and was firm on the point that she was one of the few people who had seen the child in both homes and with both parents. I find this to be so.
The Wife’s case was essentially based upon a speculative suggestion that it could be that the distress being experienced by O was due to a diminution in time with her Mother. The distress described however, in my view requires somewhat careful analysis. In her affidavit sworn on 24 August 2000, the Mother proposed to suspend the overnight contact until properly investigated and set out her view that it was appropriate that O have ongoing sessions with Dr P R, psychiatrist and that a report be prepared.
Dr R had been previously subpoenaed to attend court and refused because of the therapeutic nature of his relationship with O to give any evidence. The issue was not pressed by the Father but the Orders made on 28 August 2000 noted that Dr R had attended at Court to give evidence as a result of a subpoena issued by the Father and a result of private communications between Dr R and the Father’s Counsel and instructing solicitors, they elected not to cross examine him. Dr R was prepared to involve the Father in the treatment process with the child, and did not wish to express an opinion in relation to any reduction of contact this day. Dr R had agreed to keep the Father and the Mother informed at all times as to the child’s progress and treatment.
The Father did arrange to see Dr R, however, shortly after this order, Dr R had ceased treating the child and the Mother’s evidence was that there had been no further need for her to see him other than for a review in six months time. The original involvement of Dr R was because O had eczema which it was suggested was stress related and he was apparently treating her for the stress. She said that O’s last visit to Dr R was around July / early August 2000 and that Dr R said she didn’t have to go regularly and that he was happy to see her on a six monthly review basis. She said that she had not needed to take her back since July 2000. In August the Mother wanted the contact Orders suspended until the behaviour of O as asserted by her was investigated. She thought that it was appropriate that O have ongoing sessions with Dr R and that a child psychiatrist was to prepare a report. However, she stopped seeing Dr R on a regular basis in late July or early August and no report was ever forthcoming from Dr R. She did not investigate further O’s apparent anxiety and stress and concluded that at the time of hearing the cause was unknown to her. Neither did she seek leave to obtain any other evidence from a child psychiatrist or psychologist to present it at the hearing. No expert evidence was available to suggest that O was in need of particular treatment or that any of the Mother’s assertions about her anxiety and distress could be related to her contact with the Father. The fact that O was no longer seeing Dr R regularly , can lead only to the inference, in the absence of any other evidence, that Dr R did not think that O’s situation warranted any regular ongoing treatment by him, or by any other person to whom he might refer her.
Furthermore, whilst Ms D was criticised for not having made specific enquiries about whether a reduction in time at the creche might assist O, it is clear that since separation, O’s time at the creche had increased and even if the speculation by the Wife’s Counsel as to whether O’s distress might be caused by insufficient time with her Mother was correct, there are ways of increasing that contact other than reducing the times with the Father. An obvious way is for her to spend less time at creche and more time with her Mother.
In the end the evidence was simply that the Mother was still searching for an explanation for O’s behaviour and hypothesising herself that reduced time with the Father might improve it. However, Ms D was adamant that the nature of the relationship between O and her Father was a positive one, and that she saw nothing to suggest that the stress was related to the contact with the Father. In August 2000 the Mother was complaining that the introduction of overnight contact in May had not been successful. However, in her affidavit sworn on 1 March 2000 the Mother was opposing overnight contact before it had even been trialed. She was even then asserting that O’s behaviour and the Father’s parenting abilities were such that she did not consider it appropriate to extend hours of contact and certainly even at that stage opposed overnight contact.
In March she indicated that she was employed 18 hours per week and her average working day was maybe for three days per week from 10.30am until 4.30pm. There was no evidence that the increased time O was spending at creche was anything other than a strategy on the part of the Mother designed to provide more continuity for O at creche and to help her settle better. There is accordingly nothing to suggest that the Mother could not reduce the time O spends at creche if it is her view that more time with O is necessary.

Attendance at creche

An affidavit from J G a child care worker at the H B secondary college child care centre was filed on behalf of the Wife. The document annexed a report about O dated 17 August 2000 and inter alia described O’s attendance early in 2000. Early in the year O’s behaviour was described as being difficult and apparently she cried, hit her head on the floor and mattress and sucked on her dummy and spent most of the time on her bed crying. The report suggests that the child continued to be unsettled throughout the earlier months of the year and even in July indicated that she was not separating well from her Mother and needed comfort. The evidence of the Mother was that a strategy to improve her stability in child care the times of her attendance were increased and this has produced a better result. Exhibit “H1” is the attendance records of O at child care from

4 August 1999 through to 28 November 2000. By August 2000 O was attending child care for 5 days a week for most of the day. The Mother’s evidence is that O is now in a routine at child care and has settled down.

Relevant law

Contact and residence Orders are parenting Orders. They arise from proceedings that result from Part VII of the Family Law Act (1975). Section 60B sets out the objects of Part VII and the principles which underlie those objects. They are subject to Section 65E, that in determining the outcome, the best interests of the child is the paramount consideration. That is the overriding principle.

Section 68F(2) — determining the best interests of the child

a) The child’s wishes.

In this case due to the age of the child there is no suggestion that her wishes have any relevance to the decision.

b) The nature of the child’s relationship with the parents.

In this case there is expert evidence from Ms D to the effect that the child has a close, positive and appropriate relationship with each of her parents considering their respective roles. Whilst she appeared to be somewhat more unsettled in the company of the Mother following periods of contact, the evidence did not do any more than speculate at the cause of that unsettled behaviour and did not establish that it was caused by contact between the Father and child or that a diminution in that contact would benefit O or conversely that an increase in the contact would not be in her interest. One of the possibilities suggested by Ms D was that it was in fact the nature of the relationship between Mother and Daughter reflected to an extent that the Mother’s insecurities which might be the cause of the difficulties.

c) The likely effect of any changes in the child’s circumstances

The Mother’s case was essentially put on the basis that there should be a change in the child’s circumstances by a diminution in the contact between the Father and child as a means of trying to determine whether this might make her more settled with the Mother after contact. However, as I have indicated the evidence did not do any more than speculate on the causes of her unsettled behaviour. Overall, the context of the changes that will occur as a result of the orders in this case will be relatively small ones in the life of the child and will not take effect on a regular basis until June 2001. The Father will have contact during the Christmas holiday period but at the same time as the child will not be attending child care during that period, the Mother will also have significantly greater time with her. The evidence did not suggest other than that time spent with each of the parents during holiday periods would be to her benefit. In 2003 the Wednesday evening contact cease so that the child is not disrupted at school during the week but at the same time providing for the Father to have to opportunity to collect her from school on the Friday and return her to school on the Monday allowing for an involvement in her schooling.

d) The practical difficulties associated with contact.

The practical difficulties in this case relate to the poor relationship between the parties in which there is virtually no communication between them. This will be overcome in the short term by the changeover taking place at Ms T’s home without the Mother being present. Ms T indicated in her evidence her availability for a period of six months and the orders reflect that evidence. If the parties are not able to have the changeover between them at that time then they will have to make other arrangements.

e) The capacity for the parents to meet the child’s needs.

In this case much of the affidavit material filed by the Wife concerned her concerns about the Father’s capacity to care for O. That matter however, was barely touched upon in cross examination and, in view of the time that has now passed since separation the contact that the Father has been having with O and the expert evidence as to their relationship as well as evidence from other witnesses whose evidence was not challenged, I find that the Father has the capacity during the periods when O will be with him, to meet the child’s needs
There is some concern however, on the evidence about the Mother’s capacity to meet her emotional needs. There is the question, not fully answered, as to whether O’s unsettled behaviour is a reflection of the inter-dependent relationship between her and the Mother. There is also, I find, on the Mother’s part a lack of understanding of the importance of the Father’s relationship with O. Whilst the Mother has complied with Orders for contact that have been made during the course of the proceedings, her overall attitude including the proposals she was making right up until the commencement of the hearing reflect a trivialisation of the Father’s relationship with O and an inability to see the positive aspects of it. At one point in her evidence she said about contact with the Father:
“I have been very lenient. I am quite happy for O to go with her father.”
The orders do not reflect a particular “leniency” on the part of the Mother and when one considers that most of the Orders were made not by consent but after a contested hearing, then that puts a difference complexion on her comments. In any event, the comment misses the point about O’s relationship with her Father. It is not a question of the contact being something within the power of the Mother to give or remove, but rather a question of what is in O’s interest.
Another example of the inability for her to meet O’s needs arises from the requirement of the Mother at changeover times for O to have to walk between the parties rather than being handed from one to the other. From the evidence of Ms T it must have been apparent to the Mother on many occasions, that this was not working well for O, but nevertheless, she continued to insist upon it.

f) Child’s maturity, sex, background and other characteristics

The Father in this case is of Indian background and there are cultural issues of importance to him in relation to O. These were however, acknowledged by the Mother and there was no issue about O’s cultural heritage.

g) The need to protect the child from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour.

The Mother’s case could be seem to have been mounted under this sub section in the sense that she was proposing that contact with the Father should be decreased and certainly not increased, because of the need to protect O from psychological harm exemplified by the unsettled behaviour after contact described by her. However, this was no more than a theory put forward by the Mother and importantly, although she deposed in her affidavit in August 2000 that she intended to call expert evidence and despite the fact that O had prior to that time been regularly seeing Dr R, there was a significant absence of any expert evidence suggesting that O’s behaviour was of significant psychological concern or that it was anything to do with the contact between the Father and the child.

h) The attitude to the child and responsibilities of parenthood

Other than the matters raised by the Mother about the Father’s parenting skills generally about which I have already commented, there was no current indicative evidence to suggest that either parent was not a responsible parent nor that both were capable of caring for O in an appropriate manner. The Husband may have been inexperienced in her care shortly after separation but with her increasing age, his attendance at parenting courses and the passage of time, there was no evidence to support the view that he was incapable of caring for O during the times that she will be with him.

i&j) Family violence involving a child and a member of the child’s family and family violence orders.

There are domestic violence orders in place in this case and strangely enough each of the parties produced a copy order which was slightly different. It is not clear to me on the evidence, not did it seem clear to the parties whether the restraining order made by the Melbourne Magistrates’ Court on 24 March 2000 included O as well as the Mother.
The restraining order in its terms prevented and prevents the Father from approaching, telephoning or contacting the aggrieved family members or knowingly being at or within 100 metres of premises in which they live. That is expressed to be subject to the exercise of contact pursuant to a court order. The order will expire unless a new one is obtained on 24 March 2001.
Despite the Orders that were initially made in February 2000, contact has been taking place and other than the fact that the Mother feels the need to either not be present at contact or to have someone else with her, it was not suggested that the Orders had any other relevance to the proceedings.

k) Whether it would be preferable to make an order where it would be least likely to lead to the institution of further proceedings in relation to the child

Considering the issues involved in this case neither party suggested that this section had any particular relevance to this case.

l) Any other factors or circumstances that the Court thinks relevant

In this matter in my view, the provisions of Section 60B(2) are extremely important. The Father’s role as an important person in O’s life should be entrenched. I accept the evidence of Ms D as to the nature of the relationship between Father and child and the positive aspect of it for O. It is important in this case in my view, to entrench that role due to the fact that I have found that the Mother does not fully understand it nor is fully committed to supporting it.
I do accept the evidence that O is unsettled with the Mother following contact, but it is not possible to reach a conclusion as to why that is so. There is no doubt that O is spending a good deal of her time during the week in creche and for that reason despite Ms D’s recommendations I do not consider that it would be in her interest to increase immediately the time that O spends with her Father. The orders I propose to make will increase that contact next June, but by that time she will be six months older and the Mother will have had the opportunity to reconsider the creche arrangements if necessary at that time.
I am also mindful of the findings I have made about the positive relationship between the Father and child and I do not consider that it is in O’s interest for the contact with her Father to be reduced at this point. Indeed, at the present time, the only difference with the orders I will make and the Wife’s proposal is that O will continue to see her Father for a few hours on Wednesday evening. It is difficult to see how this short period of time away from her Mother could make any real difference.

Specific orders

Apart from the Wednesday evening and alternate weekend contact there was not a great deal of difference between the parties in their proposals. I have taken into account O’s needs and her age in making specific orders regarding holiday contact. Pursuant to these Orders O will spend two weeks with her Father during the summer school holiday in 2000 / 2001 but they will not be consecutive weeks. In the following year she will have two weeks but they will be consecutive and in 2003 she will have half of the Christmas holidays and thereafter half of all school holidays with her Father. She will spend an extra night with him (Fridays) from June 2001 but the full weekend (from Friday to Monday) will not commence until 2003. At that time the Wednesday evening contact will cease

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate:

Date: