Dawkins and Boreham

[2012] FamCA 649

FAMILY COURT OF AUSTRALIA

DAWKINS & BOREHAM [2012] FamCA 649

FAMILY LAW – CHILDREN – Father’s application to spend further time with his daughter - Issues of alleged substantial alcohol abuse by father - Previous court orders suspending all of his time spent with his daughter - Family report and other professional evidence - Family violence issues and past intervention orders - Reintroduction of limited time spent on a continuing and progressive basis

Family Law Act 1975 (Cth)

APPLICANT: Ms Dawkins

RESPONDENT: Mr Boreham

INDEPENDENT CHILDREN’S LAWYER: MacGregor Solicitors

FILE NUMBER: MLC 8489 of 2009

DATE DELIVERED: 1 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 1 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: MK Steele & Giammario

COUNSEL FOR THE RESPONDENT: Mr Fatouros

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms MacGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MacGregor Solicitors

Orders

IT IS ORDERED:

1. THAT all previous parenting and child orders be discharged, but this Order does not in any way interfere with any prior injunctive or costs order.

2. THAT the mother and father have equal shared parental responsibility for the child X born … October 2005.

3. THAT the child live with the mother.

4. THAT the child spend time and communicate with the father as follows:

   (a)on Saturday 4, 11 and 18 August 2012 between the hours of 10.00 a.m. and 2.00 p.m.;

   (b)on Father’s Day 2012, 2 September, between the hours of 10.00 a.m. until 2.00 p.m.;

   (c)on a fortnightly basis commencing Saturday 1 September 2012 between the hours of 10.00 a.m. and 4.00 p.m.;

   (d)commencing Saturday 8 December 2012, and on a fortnightly basis from 10.00 a.m. Saturday and overnight until 3.00 p.m. the following Sunday afternoon;

   (e)for a period of four (4) consecutive days, commencing at 10.00 a.m. on 14 January and concluding at 3.00 p.m. on Thursday 17 January 2013;

   (f)by telephone on each Wednesday evening at 7.00 p.m. for a duration of up to twenty (20) minutes with the responsibility being upon the father to initiate that telephone call and on Christmas Day 2012 at 10.00 a.m.

5. THAT if the child is to enter hospital for any surgical procedure the mother is to advise the father as soon as practicable of the dates of surgery and the anticipated length of stay in hospital, and all relevant particulars thereto, and the father is at liberty to reasonably visit the child at any day time of his choosing subject to hospital requirements and thereafter, in any period of home convalescence, the father is entitled over a twenty-one (21) day period to have telephone contact with the child on at least three (3) occasions in each of those three (3) weeks.

6. THAT the father use his best endeavours to co-operate with and ensure that the child is able to attend pony club at Z on the first Sunday of each month but subject to any prior and substantial arrangement that the father has made for the child in the weekend and which he has explained to her.

7. THAT on all occasions where the father is to spend time with the child he must not consume any alcohol whatsoever for a period of twenty-four (24) hours prior to the commencement thereof and for the duration of all such time spent as ordered.

8. THAT on any other occasion where the father visits or spends time with the child he is to be totally free of alcohol.

9. THAT each of the parents are to ensure that the other has their current home address, telephone number and email address and any change in particulars are to be immediately notified to the other party and to the Independent Children’s Lawyer, whilst they remain active in the proceedings.

10. THAT on all occasions of collection and return of the child, pending further order the father or his partner Ms KT, or both of them, or in the necessary circumstances his sister, Ms PC, are to collect the child from the front property gate of the mother’s home at …, Doreen and to punctually return the child to that venue at the conclusion of all periods of time spent.

11. THAT on all occasions the child is to be seated in a child seat or restraint as is appropriate for her age and physical size.

12. THAT the father is to continue in attendance at the Parenting Orders Program run by Catholic Care and upon completion of that program is to obtain and then forward certificates of compliance to both the solicitors for the mother and to the Independent Children’s Lawyer.

13. THAT without the prior obtained consent of the mother, the father is restrained from entering upon her residential property at N and all times of collection and return are to occur at or outside of the front gate to that property (which is said to be approximately 150 metres from the front door of the home).

14. THAT both parties immediately advise the other of any injury or illness sustained by the child whilst in their care and provide particulars of any treatment required or received by the child together with the name and address of the treatment provider and other relevant circumstances.

15. THAT the mother is to authorise and request the school which the child attends, IH School to forward to the father, at his expense, if any, all school reports.

16. THAT the parties are each, save for pony club on the first Sunday of each month, otherwise restrained from enrolling the child in any other extra curricular activity which would occur during her time with the other parent without first obtaining the prior written consent of that parent or order of the Court.

17. THAT from the commencement of the father enjoying overnight time with the child she is to principally reside and spend each overnight occasion in her own bed at …, the home address of Ms KT, and to which the father has advised the Court that he will hereafter be relocating.

18. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

19. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

20. THAT the further hearing of all extant applications be otherwise adjourned for further directions and/or a hearing of no more than a half day duration in late February 2013 and for the purposes of this order each of the solicitors for the mother and father are to communicate with the Independent Children’s Lawyer who will have the responsibility of contacting the Family Court Registry in February of 2013 and seeking such a listing.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the mother and father.

IT IS NOTED

A.THAT if the child is hospitalised then for the purpose of any hospital visit the father’s visits shall be limited to no more than one (1) hour on each day, unless an urgent situation arises.

B.THAT the family violence orders of the Magistrates Court remain operative but those orders are not to interfere with the father’s ability to collect and return the child from outside of the mother’s home and should not apply for the purposes of any overlap which occurs on hospital visitations.

C.THAT the father is forthwith to advise in writing the mother’s solicitors and the Independent Children’s Lawyer in respect of any application to be made for the removal of the interlock car fitted device and again as to the outcome of any such application.

D.THAT the father has given an undertaking to this Court by document filed 22 June 2012 and the Court has determined not to proceed upon the basis of the undertaking but to pronounce the order, as was sought by the mother and the Independent Children’s Lawyer, and was not ultimately the subject of any objection from the father, but nevertheless that undertaking, whilst not formally given in the proceedings may remain upon the court file as Court Index Document No. 57.

E.THAT at the conclusion of the hearing and after Young J had left the Bench but in the presence of the mother’s Counsel and the Independent Children’s Lawyer it was alleged that the father had verbally abused the mother’s mother by calling her an “old mole”.  This was not proved to the Court which was recalled to hear Mr Weil’s submission and to record his complaint on transcript.  The father’s Counsel remained at Court and was present at this mention and was asked to communicate the alleged incident to his instructing solicitor.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawkins & Boreham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8489  of 2009

Ms Dawkins

Applicant

And

Mr Boreham

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Dawkins & Boreham has been before the Court before many years and the ongoing issue is whether the father should spend any time and, if so, what time with the child, X, born in October 2005 (“the child”), she therefore being almost seven years of age.  The child lives with her mother and presently has not enjoyed any face to face time with her father since February of last year. 

2. Mr Fatouros of Counsel appears for the father and has presented to the Court a minute of proposed order which envisages the immediate commencement of face to face contact between his client and the child and sets out a timetable of rapidly escalating time to be spent, initially on a Saturday and thereafter on weekends and with school holidays and other long term orders.

3. Other ancillary orders are also sought in that document which I will have marked and placed upon the court file as a document in the proceedings.  Accompanying those orders sought, the father has also lodged with the Court an undertaking, which was filed on 22 June 2012, in the following terms:

   That without conceding the necessity of this undertaking, I will refrain from consuming alcohol for a period of 12 hours immediately prior to and during any time I spend with [the child].

4. In support of his orders sought, the father recently filed an affidavit on 22 June 2012.  In further explanation of that document, his Counsel was instructed to advise the Court that the father has attended at Catholic Care, on the 2^nd, 23^rd and 30 July 2012 and his counselling is ongoing.  It will be a requirement of my orders that he continues to complete all required sessions of such counselling, so as to complete the course and then provide certificates of completion of that course to the Independent Children’s Lawyer and to the wife’s solicitors.

5. The father is a self employed plumber, though the circumstances of his work arrangements and certainly his income are largely unknown to the Court.  He is currently a bankrupt.  He has struck up a relationship and his partner, Ms KT, is in Court supporting him.  They do not live together on a full time basis and Ms KT owns the property where she resides with her two children of a prior relationship.  I record that one of those children has a medical condition and as a result, Ms KT is a carer for that child,P.

6. Otherwise, Ms KT works part time for an accounting firm as an administrative assistant and also receives an appropriate carer’s allowance for her parental obligations.  Whilst she has filed no recent affidavit, the father’s counsel has indicated to the Court the availability and willingness of Ms KT to assist in implementing any orders pronounced today and also that she will have some influence over the commonsense behaviour of the father and his strict obligation with his non-consumption of alcohol at relevant times, which will be a central platform in the orders that I have hereafter pronounced.

7. The mother is, again, represented by Mr Weil of Counsel.  She has not filed any updated document identifying the orders sought but initially Mr Weil strongly conveyed to the Court that she opposes any and all resumption of face to face time to be spent between the child and the father.  Subsequently, and on obtaining further instructions, but very much as an alternative position that is not the primary position of the mother, Mr Weil did indicate that she would be co-operative with any restricted commencement of time order on alternate Saturdays but not progressing to any overnight to be spent for a period of at least four months and with a further Court hearing to be scheduled in or about February of next year.

8. The mother has filed many prior affidavits in the proceedings but for the purposes of this hearing today and also to obtain a good background knowledge of the matters in dispute, Mr Weil indentified and relied upon her affidavits filed 5 August 2011 and 14 December 2010 and the affidavit of her solicitor, Mr Steele, also filed 5 August 2011.  I have read those affidavits and Mr Weil, in his submissions, has referred to various paragraphs thereof. 

9. Ms MacGregor is the Independent Children’s Lawyer.  Whilst there have been many earlier reports obtained from professionals, including psychiatrists and psychologists, the most recent report is that of Ms WF and that document is in evidence before the court and is dated 27 April 2012.

10. Ms WF was not sought to be cross-examined today, though I had made earlier case management orders identifying that issue.  I have read and I both have regard to and I have relied upon various observations in that report and also carefully evaluated her recommendations.  The curriculum vitae of Ms WF is attached to the report.  She is a qualified and very experienced family consultant who has had many years of experience with the Court.  I accept her qualifications and her experience and none of those matters have been the subject of any challenge in the hearing before me.

11. I record that her report was ordered pursuant to an order that I made on 23 February 2012 and in this case, I particularly identified the matters upon which she was to focus and report and they are recorded in paragraph 2 of her report.  I have already identified that paragraphs 5 and 6 of her report were persuasive.  She records there:

    (5)[The child’s] first statement after greeting the family consultant and being settled into the child care room was to ask if and when she would be seeing her father.  She expressed great excitement about seeing [the father] and when reunited with him sometime later, she was clearly thrilled to be with him.

    (6)Although they had not spent time together for over a year, having only had weekly telephone contact, the manner in which [the child] and her father interacted was as though no time had passed at all.  They were both relaxed and in fact jubilant, discussing shared memories and common interests.  [The child] asked after Ms KT and her children and was delighted to spend a brief period with Ms KT.

12. In her report, Ms WF has observed and commented upon both the mother and the father.  Clearly, she was troubled by the father’s attitude to alcohol and his consumption thereof and his refusal to properly identify or understand his past issues and how they have impacted upon the family and upon the orders of the Court, whereby his time with the child has been suspended.  In particular, Mr Weil highlighted paragraph 15 of that report which records as follows:

    (15)[The father] spent much of the time during discussions with the family consultant blaming others for the plight that he is in now, deprived of his daughter, financially bereft and fighting a biased legal system.  His anger and need to blame others is quite overwhelming and whilst this continues, he will also continue to ignore exploring what role his own actions have played in and therefore failing to take some of his responsibility for how his life is at present.

13. I record that I have carefully read paragraphs 10-15 (inclusive) of that report and certainly the family consultant has not stood aside from making strong observations of the father, his attitude and maturity.  The mother has been considered and evaluated in her role by Ms WF in paragraph 16-19 (inclusive) of that report.  There are issues of the mother’s negative attitude to the father and they have been explored but overwhelmingly the picture painted by the expert witness is of a highly protective mother who remains concerned, indeed adamant, in her view that there is a real risk to the child’s safety if the father is permitted to continue to drink alcohol and if he sees the child whilst having consumed alcohol and not necessarily being under the influence of any alcohol.

14. I have read the family consultant’s response to the questions that I raised and upon which she has focused.  In particular, paragraphs 25-28 have been carefully read by me in determining appropriate orders to be made in the best interests of the child.  I will hereafter consider Mr TI’s evidence but those matters have also been considered by the family consultant and what is there recorded is that the father could not be currently classified as an alcoholic or as alcoholic dependent.  They are matters that have exercised the great concern of the mother and her legal advisors but which must be seen in the context of orders being made to prohibit alcohol consumption at all appropriate times.  Ms WF has produced a very complimentary report of the child and observed that this six year old child dearly loves her two parents.  That in itself is an important aspect of the case.  Mr Weil highlighted paragraph 34 in the report which I have also read and considered.

15. The recommendations of Ms WF are as follows:

    §Should the father agree to undertaking specified by the court not to consume alcohol during and for a period of time before spent with [the child] with full understanding of the implications of breaking those undertakings then [the child] could spend time with her father without supervision commencing daylight periods and then relatively quickly progressing to overnight;

    §Should the father be unwilling to make such informed undertakings then there needs to be supervision of his time with [the child];

    §That the father attends a parenting orders program or counselling through Catholic Care or some similar program.

16. In conclusion therefore I have read and evaluated Ms WF’s report and it is the most relevant and up to date evidence and it is important in determining appropriate orders in the child’s best interest. 

17. I have made reference to Mr TI and I have read his three affidavits filed 4 August 2011, 21 November 2011 and most recently he filed with this court in or about 8 May 2012.  As I am delivering these reasons for judgment ex tempore and without leaving the bench I will generally highlight that I have considered the qualifications and experience of Mr TI which are part of his documents placed before the court and I have also considered his findings.  In his November affidavit and report produced for another hearing and before a different judge of this Melbourne Registry he concluded that his opinion was that the father did not pose “a real and identifiable risk” to his daughter.  That position has been reconfirmed in his most recent affidavit and in the present time frame of delivering these reasons I record that I have read and relied upon his report noting his emphasis upon ongoing counselling for the father to continue to learn and gain insight into managing emotional states.

18. The mother’s circumstances have been updated in the submissions before me.  She lives with her partner Mr S and they have recently had a child NJ who is now eight weeks of age.  Also living with them is Mr S’s eldest child, JS who is 18 and the profoundly disabled daughter, LN who is a child of the mother and an earlier partner.  LN requires constant care and supervision and that is a very substantial responsibility taken on by the mother and her time is substantially focussed of necessity upon LN and her constant and changing needs.  X now attends the IH School and is in her first year of full time school.

1. The mother’s grandparents pay the school fees.  The father, as I understand, makes no contribution whatsoever to the schooling costs and indeed pays no child support.  They are matters before another court that I do not comment upon but merely to record the total lack of financial contribution by the father to his daughter, X. 

2. The other background fact in this case is that there are family violence intervention orders operative from the Magistrates Court.  Those current orders run until December of this year or thereabouts.  The father is prohibited from going within 200 metres of the mother or her residence.  Though for the purposes that I will subsequently pronounce it must be understood that there is an exemption relevant to Family Court orders for collection and return of a child.

3. As I understand the mother lives in her property at N.  There is approximately a front drive of 150 metres from the front door of the house to the front gate of the property.  Thus there does seem to be common agreement in this case that any collection or return orders can operate from the front gate but with the father or his servants and agents never to enter inside the property.  The reality is that the child would walk from the front door to the front gate both at the commencement of and upon return from time spent with her father.

4. The alternative that had been raised by the Independent Children’s Lawyer was for changeover to occur at B Centre, W.  That would be highly inconvenient to the mother because of her household responsibilities with her daughter LN.  It would involve further driving and inconvenience and it would also mean the parties were subject to the availability of B Centre, W and the facilities offered by that institution which may change as there are constant financial and staff pressures upon Contact Centres in this State. 

5. For the purposes of the orders that I will make in relation to the father spending time with the child they involve the collection by the father or Ms KT of the child at the front gate of the property punctually at the time specified and then with the return of the child punctually at the time specified.

6. I take this opportunity and with the father in court to emphasise the punctuality required, any delay will only cause issues and likely lead to the matter being brought back to court.  I am told the parties have each other’s telephone numbers and on the very odd occasion that there was a genuine excuse for being late then proper courtesy requires that to be advised to the mother.  That would only be a very irregular event. 

7. As a background to the matter before me today these parties on 14 July 2009 did conclude final children and parenting orders.  They were by consent.  The orders provided for equal shared parental responsibility and with the child to live with the mother.  The father’s time was defined and included overnight, school holiday and other specified times.  There were many other specific orders made of and incidental to those child spend time orders and I will not otherwise separately read into these reasons for judgment all of the terms of those orders.

8. The point being that in July 2009 it was appropriate that the father, notwithstanding what the mother knew of his alcohol consumption at that time, to spend time including overnight time with the child.  There have been significant court events post the making of those orders pursuant to which the father’s time has been suspended.  I have read but I will not for the purposes of these ex tempore orders further touch upon the judgments and orders of his Honour, Cronin J or the other proceedings.  The current situation is the father’s time is suspended with the child and he has not seen her since February of last year.  The father has prior drink driving convictions and currently he is under an order whereby an alcohol detection device is fitted to the car which he drives.  Strangely that seems to be a car owned by a friend within a company structure who lends the car to the father when he needs to drive and as I understand it he is not to drive a motor vehicle other than one fitted with the appropriate alcohol locking device.

9. I am told that this order made in the Magistrates Court will shortly come to an end and then upon application and appropriate procedures and at the discretion of the Magistrate that requirement upon the father may be lifted and thus he will be able to drive Ms KT’s car or any other car that he might subsequently find the money to purchase.  It is a clear requirement to these orders that the father obeys the laws of this State as to his driving and clearly and as with any other citizen does not drive while under the influence of alcohol.  Likewise I require that there be an appropriate child seat or restraint for the child;  though I do not have evidence of her height or weight, it must be appropriate and in keeping with all child safety issues;  that is the father’s obligation to his daughter. 

10. I have already foreshadowed that I will reintroduce some commencement of the father spending time with the child.  For that purpose, I will discharge all proper parenting and children’s orders.  However, I carefully do not discharge any other injunctions save if they be in conflict with the orders that I make today.

11. Likewise, I in no way discharge any previous reserved costs orders made in the many and various hearings in these proceedings. 

12. The Court has been advised that the child is soon to undergo surgery for abdominal or other health issues.  The Court has advised that she is likely to be hospitalised for a week and then require care and rest for three weeks thereafter.  If that is the case, then the child’s health comes first, certainly prior to any time that the father would spend with her.  He can visit her in hospital, and the mother must advise of the admission date and other relevant matters of and concerning both the operation and the post-operative care.

13. Currently, the father has telephone contact on each Wednesday at 7.00 p.m., and that should continue, and I will so order.  I do not intend to get any other family report at this stage from a family consultant on the reintroduction of the father to the child’s life, but any issues that arise must be reported first to Ms MacGregor, who will be retained as the independent children’s solicitor until further order. 

14. I will require the parents to keep each other advised of their current address, telephone number and email address, and somehow and in some way the adult relationship between each of them must improve, as there will be ongoing involvement of necessity because of their daughter.

15. The above matters therefore provide the background to the orders that I must find to be in the child’s best interest.  Without criticism of any solicitor or counsel, the recent affidavits filed are light on any proper updated information, and thus I have asked questions of counsel to obtain some of the information that is contained within these ex tempore reasons for judgment. 

16. The Court determines the best interest of a child pursuant to section 60CC of the Family Law Act 1975 (Cth). I have considered those matters, in their amended form, from 7 June of this year, both as to the primary and the additional considerations.

17. The primary consideration is the need to protect a child from physical or psychological harm or being exposed to abuse, neglect or family violence.  Whilst there were many earlier allegations of a far-ranging nature in this case, they were somewhat diluted prior to the consent orders of July 2009, and currently, the primary issue is the purported alcohol consumption of the father and his ability to understand that issue and not be so self-righteous or aggressive on what he understands are his rights and whereby he can and has ignored the child’s circumstances.  Otherwise I am aware of the family violence order from the Magistrates Court as between the parents.

18. The other primary consideration, though now to be given less weight than the physical and emotional protection of the child, is the benefit to the child of having a meaningful relationship with both parents. This is a substantial issue in this case. As I said during submissions from counsel, the observations of Ms WF were of critical importance to my determination of this case. Paragraphs 5 and 6 of her report highlight that the child both knows, has a close relationship with and wants to spend time with her father, and they are matters critical as a primary consideration. Otherwise I have reflected upon the additional considerations of s 60CC(3) that are relevant, and in particular, subparagraph (b), (c), (d), (e), (f) and (i), as provided for in the Act.

19. All of those matters and the reluctant but understandable acceptance of the mother to not want to concede but to realise that the child’s interests are primary, and thus if the child wants to see her father, subject to all welfare and safety questions and proper structure of orders, then that is in the child’s interests. Again, as I am delivering these reasons ex tempore, and with the time now at 1.20 pm, I will not further elaborate upon the requirements within the Family Law Act, but I emphasise to those reading these reasons for judgment that I wholly and fully have had regard to the child’s best interests, and they are fundamental in determining appropriate orders.

20. I have concluded that the orders must be progressive in that the time will start on a somewhat limited basis on a Saturday and increase thereafter.  The optimistic orders put forward by the father are simply far too progressive and out of tune with building a realistic and stable basis, and clearly identifying that he will be responsible at all times in his day to day life with the child.  The orders are absolutely struck on the basis that there will be no alcohol consumption by the father for 24 hours prior to the commencement of any time spent and for the entire duration of any time spent with the child. 

21. The orders do not restrict the father from otherwise consuming alcohol at other times of the week when the child is not involved with his life or within the 24-hour period.  Whilst I record that the father had previously volunteered an undertaking, his consent to actual orders was given by his Counsel during the hearing, and orders are the much preferred situation of the mother’s Counsel and of the children’s lawyer.  Thus, I will so order.  I will hereafter draft appropriate orders, and release those orders to the parties.  The structure that I have determined is perhaps somewhat different to what all Counsel have submitted, though nevertheless within the framework of working towards a further court mention, but hopefully not necessarily a court hearing, in late February of 2013.

22. Saturday is the optimum time, and thus, for each of the next three Saturdays between 10.00 a. m. and 2.00 p.m., the father can collect the child; they are three consecutive Saturdays, and not alternative Saturdays.  Additionally, as Father’s Day falls on 2 September, there can be time on that day between 10.00 a.m. and 2.00 p.m., and I do understand that means that on that weekend the father is likely to have both Saturday and Sunday, subject to the timetable, which I do not have in front of me, of continuing Saturdays.  The first three Saturdays are consecutive; thereafter, the Saturdays will be alternate weekends as the father sought, so that the father’s Saturdays will be 4, 11 and 18 August, but not the 25^th and thereafter resuming on Saturday, 1 September so that Father’s Day will be the next day and then fortnightly thereafter, I will extend the time for those fortnightly visits from 10.00 a.m. until 4.00 p.m..  That’s an hour more than the mother asked for, I understand.  But 10.00 a.m. till 4.00 p.m. on those Saturdays.  I will commence weekends from 10 Saturday until 3 Sunday from Saturday, 1 December on a fortnightly basis.  Christmas and New Year does not fall on a Saturday and the child will be with the mother on Christmas and on New Year’s Day. 

23. I am going to provide, however, a period of four consecutive days in January 2013 for the father to spend time with the child.  And whilst I might otherwise prefer the parties to sort that arrangement out themselves, perhaps it is best for the father being able to organise his time off his self employment and have time for the child that they be the 7^th to the 10^th, the Monday to the Thursday of January.

    RECORDED   :   NOT TRANSCRIBED

24. The matter can be listed in late February.  I am not going to fix a date.  It can be managed by co-ordination with the Independent Children's Lawyer who is to approach my associate for a date, having consulted with both parties.  Now, changeover, as I have said, is at the front gate.  The father or Ms KT are to drive to collect and to return.  I well understand I am putting the onus until February on the father to do the driving or to share it with Ms KT.  But the child is not to be given up to a stranger.  The ongoing course of counselling is required as I have said with the certificates to be produced.  I will make an order for the mother to advise of the child’s health issues.  And I will make an order in respect of each party keeping the other advised of address, telephone and email address.

    RECORDED   :   NOT TRANSCRIBED

25. Now, just the issue of how this is done.  I think what I will do, given that it’s 1.30 pm, the parties need some time for a break.  I will come back at 2.15 pm and prepare the orders so that Counsel and the clients can hear and, if necessary, it can be within the framework of what I have said, some input so that I do not leave out a matter of importance to the parties.  So for the purposes of – for these reasons for judgment, I will indicate that it is now 1.30 pm.  I will come back to the Bench at 2.15 pm and in the presence of all parties, prepare these orders which the court will then engross.  But the parties can turn their mind towards this Saturday, from what I envisage, is that the child will walk up the drive at 10.00 am  or a minute before 10.00 am to be collected appropriately, driven appropriately in a secure seat and returned at 2.00 pm  as being the first of the next three Saturdays.

26. I will have these reasons for judgment transcribed and placed upon the court file and, in due course, made available to the parties and I incorporate that other matters that are discussed with counsel hereafter will be reflected in the appropriate drafting of these minutes.

I certify that the preceding forty four (44) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Young delivered on 30 July 2012.

Associate: 

Date:

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