Delahunty and French

FAMILY COURT OF AUSTRALIA

DELAHUNTY & FRENCH

[2013] FamCA 873

FAMILY LAW – CHILDREN – Application by the husband for a variation of existing orders on the basis that the child is at risk with the wife – evidence supports conclusion that the parties’ conflict is the cause of the problem – long running dispute observed by the same psychologist over a number of years indicates that nothing has changed – child has written concerning school project that she has not been heard in the proceedings – no basis to alter orders other than to incorporate wife getting treatment for personality disorder and alcohol problems and the parties to otherwise parent child in a parallel fashion.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Delahunty

RESPONDENT:

Ms French

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGC

899

2008

DATE DELIVERED:

6 November 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30, 30 October 2013; 1 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marchetti

SOLICITOR FOR THE APPLICANT:

Moores Legal

COUNSEL FOR THE RESPONDENT:

Mr Hoult

SOLICITOR FOR THE RESPONDENT:

Law 554 Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

For the purposes of these orders, Mr Delahunty is referred to as “the husband” and Ms French is referred to as “the wife” even though they are no longer married to each other.

That all existing parenting orders are discharged as and from 9 am on 11 November 2013.
That the child T live with the wife in a 14 day cycle which shall commence on 11 November 2013 from 9 am on Monday 11 November 2013 until 3.30 pm on Wednesday 20 November 2013 and for a similar period in each fortnightly cycle thereafter.
That the child T live with the husband in the same 14 day cycle commencing on 11 November 2013 from 3.30 pm on Wednesday 20 November 2013 until 9 am on Monday 25 November 2013 and for a similar period in each fortnightly cycle thereafter.
That for the purposes of school term and long summer holidays, the husband shall have:
(a)The first week of each term holidays commencing at the moment school concludes until 7 days exactly thereafter;
(b)Unless otherwise agreed for the long summer holidays, a week-about arrangement commencing from the moment that the school year commences.
(c)In the event that any holiday period does not provide for an exact week period, the arrangement shall continue for part of the week even though it may be interrupted (as for example in paragraph 7).
The fortnightly cycle referred to in paragraphs 2 and 3 shall cease at the end of each school term and start afresh on the Monday prior to the resumption of the school term.
All school holidays whether term or long summer holidays shall be deemed to commence at the moment school term finishes and conclude at 9 am on the day school resumes. The period set out in paragraph 4 (b) shall not include 24-26 December.
That the child T spend Christmas with the husband and wife as follows:
(a)With the husband from 12 noon on 24 December 2013 until 12 noon on 25 December 2013 and for a similar period in each alternate year thereafter;
(b)With the husband from 12 noon on 25 December 2014 until 12 noon on 26 December 2014 and for a similar period in each alternate year thereafter;
(c)With the wife from 12 noon on 25 December 2013 until 12 noon on 26 December 2013 and for a similar period in each alternate year thereafter; and
(d)With the wife from 12 noon on 24 December 2014 until 12 noon on 25 December 2014 and for a similar period in each alternate year thereafter.
That save as to major long term issues relating to health and education, the wife be responsible for all major long term issues in relation to the child when she is in her care.
That save as to major long term issues relating to health and education, the husband be responsible for all major long term issues in relation to the child when she is in his care.
That the wife be solely responsible for the decision as to which school the child attends save that if the wife chooses a school at which costs are incurred which are more than those normally charged in a school fully funded by the State of Victoria, she alone shall be responsible for such costs.
Notwithstanding paragraph 10 and subject to any direction of the principal of the school to the contrary, both husband and wife shall be entitled to attend all functions, events or meetings at which parents would normally attend.
Notwithstanding paragraph 11, the parent with whom the child is residing at the time of any school function, sporting event, speech night, performance or similar event shall have the absolute right to decide whether or not the child attends.
That each parent is restrained by injunction from permitting any relative from attending any of the child’s sporting events or being a participant in any school activities including in relation to the administration of the school, without the written permission of the other parent and that written permission shall be sought and, to the extent that it is given, only by email.
The child’s school principal shall be given a copy of these orders (but not the reasons for judgment) for the purposes of better understanding the respective parents’ rights to be involved in the child’s life including being recorded on the records of the school as a parent but at all times, the school should understand that the Court respects the right of the principal to make decisions about the involvement of parents insofar as such decisions may impact on the welfare of the child.
That whilst in a particular parent’s care, that parent shall have sole parental responsibility for the daily activities of the child and be under no obligation to advise, consult or report to the other parents about those activities.
That when the child is in a particular parent’s care, that parent alone shall determine the involvement of the child in any sporting, cultural or educational activities that require the child’s involvement.
Unless the child organises it herself, there shall be no communication between the child and the parent with whom she is not living during that relevant period.
That the husband and wife consult one another by email in relation to any major long term health issue about the child but otherwise advise each other by the same means if the child has been ill requiring the child’s medical practitioner to provide medicine and to further advise each other by that same means if the child has been injured.
That the husband and the wife appoint a medical clinic by agreement at which the child shall attend. In default of agreement, the clinic shall be the one closest to the residence of th child and each party sign all such authorities as may be required to ensure that each parent has all necessary access to the same medical advice.
Save as to emergencies, the parents shall not communicate with one another until such time as each agrees in writing that they can be civil about the child.
That subject to the views of Ms S, or any other counsellor nominated by her as a result of her absence, the wife shall continue to attend Ms S.
That the wife attend, at her expense, a specialist counsellor nominated by Dr W through the Independent Children’s Lawyer, for the purposes of treatment, assistance and counselling about her personality functioning for such period as the appointed counsellor believes is necessary.
To the extent that it is necessary to say so, the treatment, assistance and counselling referred to in paragraph 22 is reportable to the Court and the parties.
If the husband so desires, he may periodically seek from the counsellor referred to in paragraph 22 a report, at his expense, as to the progress of the wife’s treatment, assistance and counselling and the wife shall sign any necessary authority to give effect to this paragraph.
That a copy of these orders and reasons for judgment shall be served by the Independent Children’s Lawyer upon, Mr P, Dr W and the specialist counsellor referred to in paragraph 22.
That all applications be otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES

A.No provision is made in these orders for specific or special occasions other than as stipulated and it is the intention of the Court that those events are matters for agreement between the parties and failing agreement, they will not occur.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Delahunty & French 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: DGC 899 of 2008

Mr Delahunty

Applicant

And

Ms French

Respondent

REASONS FOR JUDGMENT

Parallel parenting occurs for a child like 11 year old T (“the child”) when she lives in a divided world where her parents are involved in high conflict. In social science terms, the child contends with a split world and consequently, her psychological functioning is compromised. The expert psychologist, Mr P, says that, subject to a finding by the Court as to what is happening to and around the child, she lives in two worlds.
Absent some remedial relief, if the child gets to the point where she is unable to live in that split world, she is likely to reject one parent.
According to Mr P, some possible scenarios for the child are over-identification with a peer group which could be dramatically problematic depending with whom she mixes and the nature of the mentor relationship she seeks or in the alternative, she might just suffer the ongoing conflict. The latter generally leads to anxiety, depression, substance abuse. This is not the first time this dispute has been before the courts and although the apportioning of responsibility for the dilemma is superficially attractive, the reality is that not much has changed either for the child or the parents.
Mr P gave evidence in the case between Mr Delahunty (“the husband”) and Ms French (“the wife”) concerning their parenting dispute about the child T. For the purposes of these reasons, I shall refer to the parties as husband and wife although they have long divorced. That means no disrespect to them but it is rather for my convenience.
When questioned about the issue which seemed foremost in the parties’ minds and also that of the Independent Children’s Lawyer as to how many days should each parent care for the child, Mr P uttered the mantra which underpins my orders. That is:
It’s not about the content; it’s about the process.
That is, the number of days may, but should not necessarily be, the issue but if the process of what happens to the child in those days is not addressed, the conflict will go on as will the split world.
Mr P’s solution was to set the boundaries of that split world so that there is as little parental interference in the life of the other whilst caring for the child as possible. I propose to follow that logic and, for the reasons hereafter, otherwise make no alteration to the number of days each parent currently has other than to reconfigure the arrangement and make orders about what each party can do.
To make orders that reflect the best of the worst options and to restrain significant involvement by parents in a child’s life is, at face value, contrary to everything that underlies the philosophy of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
In s 60B of the Act, the objects and principles guiding any parenting determination are clearly set out. Whilst the overriding consideration is always the best interests of the child, having regard to the evidence of Mr P, it is important to state those principles. They are that the best interests of a child are met by:
·     ensuring that the child has the benefit of both parents having a meaningful involvement in her life to the maximum extent consistent with her best interests;
·    protecting her from physical or psychological harm by being subjected to, or exposed to, abuse, neglect or family violence; and
·    ensuring that she receives adequate and proper parenting to help her achieve her full potential.
On the evidence of Mr P in relation to matters to which I shall turn, such as the school project that the child wrote and her statements to him, some of those best interest principles are simply not being met.
Section 60B goes on to say that the Court is to contemplate ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their child. How can that be happening when the expert says that the child is being parented in two entirely different worlds and is being exposed to the parental conflict? How can that be possible when she has been exposed to the conflict between her mother and step-mother and her grandmother and step-mother? Whatever these adults say about what did or did not happen in this case (and I shall deal with their disputed facts below), the child is aware of the conflict.
Section 60B goes on to provide that the principles underlying these objects are that the child has the right:
· to know and be cared for by both parents;
· to spend time on a regular basis with, and communicate on a regular basis with, both parents and other people significant to her care, welfare and development.
In this case, those extra people include her step-mother with whom she has a good relationship and her maternal grandparents whom she loves very much.
Section 60B requires the Court to consider parents jointly sharing duties and responsibilities concerning the care, welfare and development of the child. In a split world as described by Mr P where there is parallel parenting, how is that possible?
The law requires the Court to consider that parents should agree about future parenting. The law provides as a starting point a presumption that the Court must apply in relation to equal shared parental responsibility. I shall deal with that also below but it must rhetorically be asked again, how is that possible here? As the evidence unfolded, it became clear that the parents do not even agree on where the child will spend her secondary school years commencing in 2014 even though they only live a short drive from each other.
Other provisions in s 60B also apply but I have referred to the relevant ones.
The one over-arching or consistent theme in the legislature’s desire for children is that those objects and principles apply unless it is, or would be, contrary to the child’s best interests. In Mr P’s view, the Court should make the decision factoring those matters into account but with the best interests of the child very much in mind because after years of conflict, nothing has changed and the Court is again involved.
Importantly, in respect of Mr P’s view about the least worst option and in particular, his reference to a “parallel parenting plan”, s 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the best interests of a child as the paramount consideration. That is, notwithstanding what was just set out a moment ago, whilst the child’s interests may not be the only interest, it must always be the paramount one. To determine what is in the child’s best interests, the Court must consider the matters in s 60CC. I return to that concept later in these reasons.
A parenting order is defined in the Act to mean an order which may deal with the persons with whom a child is to live, the time a child is to spend with another person, the allocation of parental responsibility and a number of other things which are not relevant here. What is relevant here however is that a parenting order may include the process to be used for resolving disputes about the terms or operation of the order and any aspect of the care, welfare or development of the child and any other aspect of parental responsibility for a child. There has been no such mechanism to date and it would seem that the parties ultimately resort to the courts.
As I earlier indicated, s 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for her. The parties had a modest dispute about whether or not one parent should have power to decide education issues. A good guide for whether a sharing of decision-making could occur can be seen from the legislature’s drafting in s 65DAC. It provides that if two parents are to share parental responsibility about a decision on a major long-term issue (that being defined in s 4 of the Act), the order is taken to require the decision to be made jointly by those parents and it is taken to require each of them to consult the other parent about the decision and make a genuine effort to come to a joint decision about the issue. There is some irony in the use of the word “genuine” but in a case where the evidence points to each parent doing their own thing and the child living in a divided world, it ought be obvious that consultation and sharing are not going to happen. In his evidence, Mr P said that to consider that these parents (with whom he has had experience over a number of years) would be able to undertake those requirements, would lead to failure. Those are powerful words.
Section 61DA goes on to say that the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. There is no dispute that the state court in this case made an intervention order against the wife in favour of the husband. The presumption must be rebutted here.
Even if the mandatory rebuttal was not the case, 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 parents to have equal shared parental responsibility. For all of the reasons that follow about these parties and the child, the sharing of parental responsibility could not be in the child’s best interests. The presumption must therefore be rebutted.
I set out those matters because it is important to consider whether the Court has power to make the sort of order that Mr P was contemplating and indeed urging. No-one disputed the power. In my view, the Court very clearly has a wide power in terms of what orders it should make including those that impact upon a parent who has the responsibilities for the care of the child.
The current shared care arrangement for the child is nine days with the wife and five days with the husband on a cyclical fortnight basis. That arrangement emanates from orders made on 25 February 2011 which were consent orders. There was litigation between the parties before that after their separation in 2007.
The 2011 orders have not been successful from the husband’s perspective and he now seeks by his application to change them. He seeks that the child live with him and spend three out of fourteen nights with the wife.
Whilst the wife concedes her conduct towards the husband and his wife has been appalling, she maintains that the child is settled in her environment and her daughter would not cope with the husband’s proposal.
When the hearing began, the wife proposed an alteration to the orders to reduce the husband’s time down to three nights out of fourteen. In final address, the wife’s counsel proposed the time configuration remain the same except for a change of the days involved.

In my view, there is no simple solution here but I find that it is in the child’s best interests if there is no change to the orders. However, a significant change does need to occur in the parents’ relationship with each other and on the basis of a parallel parenting plan I propose to make orders as set out at the commencement of these reasons.
By way of background, the husband is 55 years of age and a senior manager. He has repartnered and is married to Ms Y.
The wife is 43 years of age and works in the health services sector on a part-time basis. She has not repartnered.
The parties married in January 2002 and T is their only child. They physically separated in October 2007 and divorced in 2008.
In April 2008, within a year of separation, intervention orders were made against the wife in favour of the husband as I have earlier mentioned. The nature of that complaint was not in evidence before me but having regard to the concession by the wife that her behaviour has been appalling, little is left to the imagination. In addition, the unchallenged evidence of the husband is that his present wife was also involved in court proceedings with the wife and accepted an undertaking from the wife to behave herself. Having observed both of the women giving evidence, I find there is a frosty dislike for each other.
In July 2009, by consent of the parties, orders were made in the Federal Magistrates Court that the child’s time be shared as to nine days with the wife and five days with the husband as well as a sharing of holidays. That is significant because of two things. First, the child was only seven years old. Hence, one could conclude that in 2009, each parent had sufficient confidence in the other to say that they had the capacity to share the care of the child. Secondly, these arrangements were put in place after consultation with Mr P and despite his gloomy forecast.
In his report to the parties’ lawyers in September 2008 but clearly in anticipation of the court proceedings, Mr P said:
Despite the concerns that both husband and wife harbour about [the child], the pressure that she has been placed under and the manipulation of her by the other parent, [the child] presented remarkably well. She maintained a very neutral stance in relation to both parents, spoke in a somewhat matter-of-fact fashion about their separation, their obvious dislike for each other and their conflict.
I interpolate here, not much has change.
Mr P concluded that the husband and wife had an antagonistic stance each towards the other and each had an intense distrust of the other. He listed as problems including their lack of communication and their dependency on what the child told them about what was happening in the other’s household. The fact was that the child understood the implicit message of the dislike of each parent of the other and was the lynchpin through which the parental conflict was channelled.
Mr P opined in 2008 that the parents did nothing to share the care of the child. He thought they needed counselling. He then thought that the concept of a genuine shared-care arrangement could not be justified and he did not support it. He identified the wife as the source of the child’s primary dependency needs.
With the geographic distance at that time between the parties, Mr P thought the child should be seeing her father not less than five out of 14 nights per fortnight. Thus, the arrangement now in place came into being. The question is whether anything else has changed.
In these proceedings, the husband was the applicant and the wife the respondent. Each was represented by counsel. The Court appointed an Independent Children’s Lawyer who appeared by counsel.
The husband sought orders that:
·The parties have equal shared parental responsibility save for schooling which he sought exclusively;
·The child live with him;
·The child spend time with the wife for three out of 14 nights and during school term holidays for three days in one week and three days in the next week (later that was altered to half of all holidays); and
·For similar periods in the summer holidays.
The husband also sought ancillary orders. He sought alternative orders that if the Court found that a risk existed for the child’s emotional well-being, it may be that the Court should have the wife’s time with the child supervised.
By her outline of case document, the wife sought orders that:
·The parties have equal shared parental responsibility save for schooling for which she sought an exclusive decision-making role;
·The child live with her;
·The child live with the husband three out of 14 nights or in the alternative five out of 14 nights; and
·The child spend one half of the holidays with each parent.
She also sought ancillary orders.
Each party relied upon witnesses who had sworn an affidavit. Only the husband, his wife, the wife and her mother along with psychologists Dr W and Mr P were required for cross-examination. Each party also relied upon witnesses whose evidence was not challenged. In addition to those, it was an agreed fact that the Court should take into account the notes of the Principal of the child’s school. I turn to that evidence.
Mr K is the Principal of the school and he noted there was a dispute between the parents. He said he had been involved in issues relating to the child during the time she had been at the school.
Mr K said that on 18 October 2013, the child’s classroom teacher gave him a piece of work that was completed some months ago and of which, the husband had requested a copy. The teacher was concerned about whether the copy should be provided and was told by Mr K that it should.
The teacher said that this was a piece of persuasive writing and an exercise aimed at “text structure” but the content itself was not relevant. The teacher advised that the contents did not concern him as it was a personal piece of writing and having regard to what it contained, neither teacher or Mr K were concerned about the child.
Mr K was aware of another story that the child wrote in which a person who was referred to as “the mother” was ultimately killed in the story. I was asked to infer that “the mother” was the wife in these proceedings. I refer to that piece of writing in a moment as well.
Mr K otherwise made no remarks in his notes about the child’s progress but it was common ground between the parties that she was doing very successfully at school.
I shall return to Mr K in a moment but first, I wish to refer to the two pieces of writing.
The husband produced a photocopy of the document that he obviously received from the school. The wife produced the original which is contained in an exercise book. In the context of what Mr K said, this writing may not have concerned him or the teacher but it certainly was of concern to Mr P.
The heading of the writing which was completed according to the book on 30 April 2013 said that in the Family Court, children should have a say. The child wrote that she was adamant about that. She said the Court got to choose the residence of a child or what the child did and she rhetorically asked whether that was fair. She said that children should have a day to go into the Court and speak up and they had a right to see and live with parents that they wanted to live with. In a pointed remark, the child wrote that adults buy and build houses and children should at least get an opportunity to decide where they lived and with whom they wanted to live. She went on to remark that this was depressing just to think about it. She then said:
Do you never want to see one of your parents again?
The child’s piece of writing went on to refer to the fact that if a child is in that situation they might think very differently to those who thought that it was not a “grouse” idea. She went on to say that her parents were going to court and then she remarked:
This has got to stop. Not in a few years. Not when people can finally be [bothered] to do it. It needs to be done NOW!
In relation to the child’s understanding that a child had to be a certain age to be heard, she remarked that it was not fair at all. She was critical of the fact that lawyers said what they thought but not what the children wanted. Again, in capital letters, she noted that it was not fair.
A number of observations were also made including the fact that children should not have to have pressure on them when a family was going to court.
As the husband would have it, the wife manipulates the child by involving her in the proceedings. In cross-examination, the wife admitted that the child had asked at the end of a court day whether her mother was “winning” and then went on to say that she hoped that she did.
When this document was examined by Mr P, he observed that this was simply evidence of a tragic split world and now, the Court was being blamed.
The second piece of cursive writing was, as Mr K described it, about a story. It is not necessary for me to set it out in detail but it has all of the remarkable hallmarks of the child referring to her own family situation. She made reference to the fact that the family of two parents and one child was falling apart. She described her mother as working in health services. She wrote that her father was mean to her mother and always answered in a rude tone. She said he always tried to make an argument with her mother. She then referred to herself as saying that she did not understand why they were fighting. As much as the child endeavoured to hide the true participants in this story, it oozes with particularity in her steam of consciousness. In a bizarre ending, the mother is stabbed. It is the following day after the stabbing that the child returns home to find her mother covered in “bright red blood”. The rest of the story does not need repeating but again, it is a cry of help.
Mr K turned to an event that initially appeared contentious but I am satisfied occurred and it was appalling handled by the wife.
On 14 December 2012, the school held an assembly. The husband told Mr K that he was concerned that the wife had been drinking prior to her attendance at the assembly night. At the end of the assembly, the husband asked him to prevent the wife from leaving with the child. He felt that all the husband could do was call the police. The husband told him that the police had been called. The wife then walked past Mr K shouting very loudly:
I am sick of you pissing in your pocket (sic).
That apparently was a reference to the nature of the relationship between the husband and the school Principal. In my view it matters little save that the child was present.
Mr K was unable to say from his observation whether the wife had been drinking or was drunk but the police who did attend indicated that they were not going to do anything about the matter because the wife was not “falling down drunk”. In her evidence, the wife said that she opened a bottle of wine around lunchtime. She said that she drove to the school and was randomly breathalysed on the way. She conceded that she was in a bad mood and was “loudmouthed and insulting” at the school. She said the police arrived as she and the child were exiting the school grounds and she conceded the remark or something like it to Mr K. In her evidence, the wife indicated she was directing her attention to the husband because he had grabbed her by the right arm presumably to prevent her from leaving with the child.
She was pursued by the police shortly thereafter and after speaking to them for some minutes, the police left without expressing to her any concerns. In her evidence, she said she was highly embarrassed about the whole situation and in particular, because the school had written to her (even though she said she had not received it), indicating concern about her swearing and belligerent behaviour towards staff “often in front of our students”. A poignant remark was made about her rudeness during the school assembly and aggressive behaviour afterwards and indicating that was not acceptable. The school went on to say that if she continued to act in that manner she would be given a trespass warning notice.
To some extent, the wife endeavoured to explain this incident by reference to her mood and her anger with the school but the reality is that she was affected by alcohol. She was certainly not drunk on the evidence notwithstanding the husband asserted she was. She certainly was not intoxicated to the extent that the police needed to take her into care. She was certainly not in a position such that the police saw a need to take her keys to preclude her from driving a car. The police presumably had been aware that she drove to the school. In my view, this incident highlights the depths to which the parties’ trust and relationship has plummeted. I find that the wife’s behaviour that day was appalling and it is directly linked to the consumption of any alcohol. That becomes important when I deal with the evidence of Dr W.
Whatever the problem was with the school, I am not satisfied the problem has been resolved but the child’s time in the primary school is about to end. Part of the problem that the wife has with the school became evident in her counsel’s cross-examination of both the husband and his wife. Ms Y, to whom I shall refer in a moment, is very much involved not only in the school but also with the child. There is no doubt that involvement gets under the wife’s skin, creating anxiety and pressure which in turn, on the evidence of Dr W, creates the risk of her resorting to alcohol. In 2013, the wife has been relatively abstinent.

Witnesses

There were two experts in this case. Dr W and Mr P. No-one challenged their expertise.
The parties themselves as witnesses tried to be accurate historians. In reality, the facts were largely not in dispute.
The husband impressed as a quiet but determined man. Indeed, he carried an air of resignation about him. Whilst the position he adopted about the problem was less transparent than that of the wife, I find he would not negotiate with the wife nor accept much of what she thought might be good for the child. Furthermore, he has got to the point where he is suspicious of anything the wife does. Forensically, every minor issue becomes an evidentiary fact for court proceedings. As I indicated at the time, much of that was unhelpful particularly as the process will not change if the days are altered. Be that as it may, I accept that he has every reason to be frustrated but I am not sure that he has a solution to the problem other than altering the days and in my view, that does nothing to fix the difficulty for the child.
The wife was disarmingly candid. She asked me to accept that with her alcohol problem under control, her aggression towards the husband and his wife would abate. Like Mr P, I have little confidence about that at this stage. The wife should have had an “epiphany” after December 2012 in relation to the school event in which she was espousing embarrassment. For months things seemed relatively calm but in June 2013 when she consumed alcohol again, she became unpleasant if not abusive. That said, if the evidence of Dr W is to be accepted, and it is, there is a small glimmer of light indicating that the wife may be starting to change. She had plausible explanations for most things that had caused the husband angst but the difficulty was that the husband did not know much about why those problems arose. The wife did not tell him.
Parenting cases are very difficult because the obligation on the Court is to focus on the best interests of a child. It must give effect to statutory principles one of which is that the Court is to consider the needs of the child and the impact of the conduct of the proceedings on the child whilst it determines that case. Another obligation on the Court is as far as possible, to conduct the proceedings in a way that will promote cooperative and child-focussed parenting by the parties. I have given much thought to the way each approached the evidence and have borne in mind that it was sanitised by lawyers and subjected to considerable scrutiny and cross-examination. Much of the evidence was about the parties themselves even though they may not have seen it that way.
After all of the evidence was completed, including some powerful evidence by Mr P, the husband still sought a change of the current arrangement because it would be less of a time that the child could be exposed to her mother’s influence affected by enmeshment and alcohol. I cannot accept that it was the right focus. I do however understand the husband’s frustration.
In the same way, counsel for the Independent Children’s Lawyer adopted a position that there should be a reversal of the current time so that the husband cared for the child for nine nights per fortnight. In my view, that might satisfy the “content” as Mr P described it but it would not serve the child’s best interests in respect of the process. In other words, this case will not go away based upon an alteration of the times. As Mr P said, the parties need boundaries. Those boundaries can be seen from the events that are set out in their evidence.
Whilst there have no doubt been many problems since separation, the catalyst for this dispute was relatively innocuous.
Ms Y purchased tickets for the husband and the child as a surprise present, to travel to Bali. That trip could not have been made without a passport. Orders of the court had been made that if the wife did not sign the application for the child to have a passport, the husband could use the order to obtain it without permission. The husband was aware that the wife had signed a document but it was incorrectly witnessed. He ignored fixing that problem with the wife but rather had it signed using the provisions of the order and then retained the passport. The wife was not aware that he had retained the passport. Not only was the wife not aware of the passport having issued, she was not aware that he had taken the child to Bali until she telephoned the child and spoke to her only to find she was in Bali. That triggered an angry response from the wife as a result of which, upon the child’s return, the child was not only kept out of school but kept away from the husband.
The husband was carefully cross-examined about his lack of the provision of information to the wife. His explanation was that if he had let the wife know that he was going to Bali, she may somehow have thwarted the trip. I do not understand how that was possible and I accept that it is more likely that he took the opportunity to go simply by ignoring the wife. He must have known that there would be a backlash because the wife would have been telephoning the child on her mobile to which she had access. The husband acknowledged the secrecy of what he had done.
When the wife gave evidence and was cross-examined, the focus was on the fact that she had kept the child away from the husband and out of school. Her implausible and unsatisfactory justification was that she thought that the husband might take the child and go back overseas again. That explanation had no merit.
All of that led to contravention proceedings against the wife.
I find that the Bali incident was the catalyst for the problems that followed thereafter. I find that both parties contributed to the problem and therefore to the extent that it might be thought that the husband had not contributed, I reject it.
In April 2012, the contravention application brought by the husband was served on the wife. That was followed immediately by a number of voice mail messages from both the child and the wife. They included questions by the child as to why he was taking her mother back to Court and she called him “gutless”. She went further and described him as a “loser”. That evidence was not challenged by the wife. It is part of my concern that the child is very much a supporter of her mother and involved. On the husband’s evidence, those problems do not arise in his household. I am not so sure.

In April 2012 also, the husband telephoned the child on his birthday and he said that he could hear the wife telling the child to hurry up and wish her father Happy Birthday and then hang up. That too was not challenged.
In November 2012, the child told the husband of a dispute in her household between her mother and the grandparents. It seemed that it had something to do with her mother being drunk. The wife denied that she was drunk or that there was any fight. Again, the only significance is in the fact that the child was present.
In November 2012 the wife left a message on the husband’s phone indicating that the child would not have a “parental relationship” with his new wife and that the child did not like her, found her rude and abrupt. The wife did not challenge that evidence nor could she.
Ms Y provided an affidavit of evidence in chief and submitted herself to cross-examination. She is a personal assistant.
Counsel for the wife cross-examined Ms Y about whether she thought that the wife was a good mother. She said she was not in a position to comment. I found that quite remarkable bearing in mind that she had a close relationship with the child and observed her health, diet, schooling, hygiene and general behaviour. How could she not know whether the child who spent five nights per fortnight in her household did not have those attributes and for which the wife must surely have had some involvement and be given some credit?
Counsel for the wife asked Ms Y whether everything was going well with school and sport but it was only then that she gave the wife some credit. Counsel gave her a number of opportunities to respond to questions and she indicated that she was unsure of what he was asking her about or how she should answer. I felt very uncomfortable about whether she was being honest. When asked whether she could say anything good about the wife, her response was that the child and the wife loved each other. She was given another opportunity by counsel asking her whether she thought the wife was a good mother. Her response was that she was not qualified to say but when she thought about it, she said that she thought the wife did the best she could. That was a limp response because she was immediately defensive by answering that the husband was also a good parent. Here was an opportunity for Ms Y, who would be a very significant role model and parental figure in the child’s life, to give some credit for the fact that the child is at least well cared for. She did not.
When challenged about the Bali trip and the tickets, she was asked why she did not tell the wife herself. Her response was that it was not her role. Whilst that might be so, I point out again that Ms Y is a very significant figure in the child’s life.
The two most significant female figures in the child’s life have no respect for each other. The wife was not much better in making concessions about Ms Y.
In July 2012, a dispute arose about some concert tickets at the school. The wife said that she went to the school and was there met by Ms Y who stuck her finger up. The gesture was said by the wife to a rude one. Ms Y disputed that that ever occurred and indeed, in response to a question by counsel, accused the wife of lying. It went further. The wife’s mother gave evidence to say that in a confrontation with Ms Y, the latter described her as a “fucking whore”. Ms Y denied she said that. She said that the wife’s mother was a liar.
The wife’s mother also accused Ms Y of driving her car too close to her in a car park. Ms Y denied that. Whilst the wife’s mother complained about the driving, it was the gesture and the way in which it occurred that caused me more concern.
The reticence of Ms Y to make compromises and to acknowledge her part in the problem along with her indication that it was not her role to be so involved, convinces me on the balance of probabilities that she did make the gesture and say what the maternal grandmother accused her of saying.
Having said that, I am very conscious that Ms Y is a very important person in the child’s life but when I asked her how she thought the child would deal with a significant change as promoted by the husband, she was unsure. It is because of that uncertainty, I see very little point in altering the days if that is not going to solve the problem of the “process” as described by Mr P that the child endures.
When Mr P was giving evidence, he was cross-examined about the impact on the child of such a move. He said that the child would be “pretty unhappy” about it and would grieve but would get over it. That was on the assumption that the child would have the support of the husband and Ms Y during this grieving process. Having regard to the evidence of Ms Y, I am not convinced that the child would have that support.
The husband was asked how he would handle a grieving child and his response was that he would seek professional counselling. That clearly did not help the question of how his daughter would deal with the immediate fallout in circumstances where she was articulating that she really wanted to be with her mother. It is particularly significant that the two pieces of writing to which I earlier referred give some indication that the child is very conscious of the litigation process. In my view, whilst Mr P had little doubt she would grieve, the child may not cope all that well and I observe again that unless there is some prospect of improvement in her life, change of the amount of time with both parents would be pointless.
After the debacle at the school in December 2012, the husband said that on 29 December 2012, he received a voice mail in which the wife was slurring her words and conveying a message about the fact that the paternal grandmother had not seen the child on Christmas Day. The message was from the wife and it had nothing to do with the child. It was unashamedly a verbal spray at the husband. Again, the wife did not deny that evidence.
Even though the message from the wife to the husband seemed to have nothing to do with the child, the husband went on to say that he received a telephone call from his mother who in turn, told him that she had received a telephone call from the wife. He said his mother told him of the nasty criticisms the wife had made about him and his partner Ms Y. His mother complained that the wife had called a further five or six times and the mother was upset. The wife denied that version of events. The evidence was not called from the husband’s mother but having regard to the wife’s concession as to her behaviour when she is angry or affected by alcohol, I have little hesitation in accepting that she did as the husband asserted even if the husband’s mother still enjoys a good relationship with the wife now.
More importantly, the parties had a dispute about what happened in emails thereafter and again, it had nothing to do with the child. The wife accused the husband of being pathetic but in my view, this incident does nothing to help me work out what to do about the child.
In 2013, another simple incident occurred which created huge litigation concentration. The versions of the parties could not be more stark about a simple fact.
The child completed some homework about gold mining. Her father was proud of it and took a photograph which he retained. In the car after the weekend, the child showed it to her mother. When the mother observed what was written and questioned the child about what it meant, she said the child could not explain it. She accused the child of plagiarising from the internet. The wife’s evidence was that the child then tore out the page and rewrote it.
It was the husband’s evidence that the wife had done this deliberately making the child rewrite it on the basis that it had something to do with his effort and his connection with the child. The wife’s version was that the child had to be taught properly and there was nothing sinister about it. I find on the balance of probabilities that the wife’s version is right. The wife’s mother gave evidence that confirmed her daughter’s version. The maternal grandmother had had an opportunity to speak to the child about what she was doing at the time. The grandmother’s evidence was plausible. The husband’s evidence was entirely reliant upon the removal of the page and the re-writing.
It is understandable that the husband would be cynical about what the wife had done because there was also another piece of writing which made reference to a game. In the husband’s document, he was a participant in the game whereas in the document that was rewritten by the child, the wife was substituted. There are a number of possibilities here and I am not prepared to drawn an inference that the wife deliberately made the child rewrite it to expunge any reference to the husband. It does however indicate to me that the child is very much aware of the conflict and accordingly, she probably rewrote the game part obliterating the reference to her father to avoid the conflict with her mother.
In June 2013, a cross-country running event occurred at school. Both parents were present. After the event, the husband said he was horrified to see the child on the ground in pain and the wife simply referred to it as “exercise asthma”. He said he asked the child about it when he next saw her and she said that she often had that problem when she was swimming and running. In part, I consider this evidence, and its focus, was led by the husband to allege that the wife makes the child do too much sport.
I am not entirely sure what the evidence establishes. The husband was suggesting that in respect of medical issues, the parties have equal shared parental responsibility. I do not know whether he wanted the Court to presume the worst which was that the wife took a serious risk with the child’s health ignoring some medical diagnosis. It seems that both parents attend different doctors in any event.
The husband made no secret of the fact that he was concerned about the amount of sport and in particular the child’s involvement in a particular sport. The child is a very good at that sport. She is involved at a competitive level and very much involved in training. There is little doubt that the wife is the significant figure of the two parents who supports the sport. I do not propose to deal with the matter much more than that. It is clear that the parties cannot attend sports events together.
In September 2013, the child was to attend a national sports meeting. It was the husband’s evidence that she did not attend because she was not well. The wife’s evidence was that she had not been well prior to the event but was well enough to go on the day. Having carefully considered all of the evidence surrounding this particular event, I am satisfied that on the balance of probabilities, the husband did not want to take the child to the event and she missed out.
Counsel for the wife cross-examined the husband about whether there was any other reason than illness and he made reference to the fact that there was cost. The cost indeed was for the purchase of all of the necessary equipment to enable the child to participate in the meet. I found this rather bizarre. The husband was hesitant in his evidence but indicated that spending that sort of money on his modest income created some problems for him. It would not have been a problem had the wife provided the equipment and she had it. When the wife was challenged as to why she did not provide the equipment, she said that on previous occasions, the equipment had either not been returned or it had come back damaged. I find the wife’s version of events about the child not attending to be correct but I found her response indicative of the respect that she has for the husband such that she would prejudice the child by not providing the equipment. Such is the level of trust and communication as observed by Mr P. However, having made those findings, neither of them really assists me in relation to what should happen about the number of days per fortnight with each parent. None of those problems would be resolved by me reducing the number of days or even having the child live with the husband.
The husband made clear that the child does not go to sports training in his time and he noted that the child did not ask him during that time. I find that that sort of explanation might be true but it would be on the basis that the child would not be game enough to ask. Whilst I am not suggesting that the husband would be brusque or blunt with the child but simply that the child knows that this is a conflictual issue between her parents. The solution proffered by Mr P was simple. Whoever had the child should take the child and the other party had no say in what happened. Superficially, that is attractive but each party needs to take into account the backlash from the child if she is denied an activity that she wants to be involved in. That is something that each party will just have to be responsible for.
In June 2013, the wife telephoned the husband and left offensive and abusive voice messages. They were set out in some detail and indeed, one of them was played to the court. Reading as much as I can into the language, the wife was “bloody fuming” about social media and the child’s involvement in it. That seemed to have something to do with the fact that the husband was more content for the child to be using electronic gadgets and playing inside than exercising. The language of the wife was appalling. The only consolation was that the child was not mentioned as being nearby.
The significance of the messages was that it was clear that the wife was affected by alcohol. The best the wife could do was say that she was not drunk.
The wife produced readings from a breathalyser machine bought for her by her parents. If I accept that the wife had been diligent in making the recordings and that it could not be manipulated by timing of the readings, it is open for me to accept that she has been abstinent for months. This was a relapse. This was three months after the wife began some counselling with a Ms S. Ms S was not called to give evidence and no report was provided but I do have the benefit of the evidence of Dr W who spoke to Ms S.
Whilst I have some concerns about the alcohol consumption issue to which I shall refer in a moment, again, this issue does not assist me in relation to the number of days with each parent.
Subsequent to the husband filing his affidavit, there were further disputes between the parties.
On one weekend, the child left her homework book with the wife. The husband sent a message asking the wife to meet him at a midpoint between their houses to hand over the book so that the child could do her homework in it. The wife bluntly indicated that it was her time and that the child had to learn to be more careful with her packing and so forth. The child subsequently sent a message about getting her book and when the wife responded by saying that the child should call her, the child did not do so.
A common sense and objective analysis of this dispute is embarrassingly simple. If the husband had gone down to the wife’s residence with the child and the child had run inside to pick up her book, there would hardly have been a whisper. When the wife was challenged as to why she did not respond more cooperatively, she said she had hurt her back and was incapacitated but it was distinctly noticeable that she did not tell the husband that.
In my view, all of that evidence is irrelevant to the question of which amount of days this child should spend with each parent but it is very significant in relation to setting boundaries of the type suggested by Mr P for parallel parenting.
The child’s involvement with social media is also a bone of contention. There is an electronic system under which the child can post photographs and people can make comments. It is password protected.
The husband asserted that offensive comments were placed on the site by the wife. The wife denied that she placed them. The husband concluded that the wife had done it because no-one else would have had access to the password. The wife referred to a conversation she heard involving the child and her girlfriends over passwords. The issue became blurred because it occurred on a Saturday but on the Sunday, there were text messages between the husband and the wife emanating initially from the wife about the husband having blocked the wife from having access to the child’s site. The wife’s evidence was that she accessed it for the purposes of parental supervision and that was really not disputed. Both parents apparently can do that.
This was a serious allegation by the husband that the wife had posted these offensive remarks. They are certainly cryptic. On the balance of probabilities, I do not find that the wife had access on the Saturday and even if she did, I do not find that she posted those writings. Even if she had, I am not sure that I could say that it has anything to do with the time between the parents because apart from it being a parental responsibility issue, it otherwise seems to be just another example of the two parents fighting with one another. In that sense, they were both using the child.
There is little doubt that the wife has a significant alcohol abuse problem. As earlier indicated, she has produced records which if accepted, indicate that she has the problem under control at least temporarily. To that end, she was interviewed by forensic psychologist Dr W.
Dr W set out in very comprehensive terms her two reports. The first report set out all of the personality traits of the wife both from the history provided and from the personality assessments undertaken. Much was made in cross-examination of the fact that the wife had lied to Dr W about a lapse in her drinking. She had told Dr W that she had not drunk that much alcohol because she had been with a friend. The wife conceded that the part about being with a friend was a lie and she said what she had to Dr W because she was embarrassed about the fact that she had been drinking at all. I am not convinced that the lie made much difference to Dr W but in any event, the significance was that she was conceding that she had been drinking. On the evidence of Dr W, the wife should not be drinking anything at all.
Dr W said that she expected the wife to minimise her problem and it did not surprise her because it was part of the illness itself. She thought that the wife needed counselling with specialist people and to that end, had made a recommendation that the wife needed that assistance. It was clear by the time that Dr W undertook her second report, the wife had not undertaken that specialist assistance. Dr W brushed that concern aside on the basis that the wife was actually doing something about the problem and attending upon Ms S. She spoke to Ms S who told her that the wife had conceded two lapses although I only understood that there was one but on any view, Dr W was of the view that the people she suggested as specialist counsellors were only examples and the whole purpose of the exercise was to address the issues. It was Dr W’s view that the counselling in relation to alcohol was fine but the wife needed a clinical psychologist who was experienced in family law matters because of the personality issues which required a lot of work. Dr W was of the view that if there was to be change, it would be a long process. In her view, Dr W thought that the wife had engaged appropriately with services and she was conscious of the cost particularly as it would be a specialist service. She said she was more interested in the engagement rather than the speciality.
Dr W thought that the wife was on the road and had begun the treatment. She cautioned that this was a long term process and she acknowledged the difficulty of accepting that the wife was self-reporting. Again however she said that she would not do anything else other than expect denial and minimisation but there were manifestations of the problems and people were able to monitor.

Dr W said that alcohol was a life-long problem and there was a need to focus on the lapses as much as anything else to ensure that whatever the triggers were, they were addressed.
I found the evidence of Dr W extremely helpful.
There was some suggestion in the evidence that Dr W was concerned that if the child was removed from the wife, she might be suicidal. Dr W acknowledged that professionally one had to take that into account because there was sufficient evidence of those things happening under such stressors. She did not see any such suicide ideation in the wife but was not prepared to exclude it. Having regard to the fact that I do not propose to alter the current times, I do not see that as a major problem. I do however see both the alcohol and the personality traits as a problem. The cost of that specialist assistance is clearly of some significance.
In relation to costs, it was noticeable that the wife was not only represented by experienced counsel at no doubt high expense in circumstances where she had a very modest income but that she also wanted the child to attend a private school, the costs of which were equivalent to what she was earning per year. Those were going to be paid by her parents.
The wife’s mother gave evidence that she and her husband were selling a house to enable those sorts of costs to be met. Because of the desperate need for specialist treatment, I asked the mother whether she would be prepared to fund that cost particularly having regard to the fact that she was going to be prepared to pay for private education for the child. The mother indicated that she would. Whether the wife considers that offer as realistic or not is a matter for her but I certainly propose to make an order that the wife attend whatever specialist counsellor is recommended by the Independent Children’s Lawyer after consultation with Dr W because that is the only way the issue of the personality traits in the long run can be controlled and treated. To the extent that counselling with Ms S continues, I will certainly order that that occur as well.
I appreciate that there is no monitoring once these proceedings are ended and counsel for the husband indicated his client’s concern that once it was all over, if the wife was successful, she would abandon all of those monitors. There is little doubt in this case that the wife cannot contain herself if affected by any quantity of alcohol nor if any problem arises about the child with the husband. To the extent that any similar situation arose in the future, the husband would be well within his rights to argue that the child is in a world with her mother where there is no prospect of his relationship ever continuing successfully if the wife continues to behave as she has recently. As I indicated in discussion, the Sword of Damocles may now be sitting there.
A number of other witnesses were relied upon by the parties. I have read all of their affidavits and taken all of them into account. Ms L supported the husband. She knew the wife and thought her a capable and smart person who could be warm and kind and funny. She said she believed her alcohol consumption in recent times had got the better of her, leading to aggressive and suspicious behaviour towards others. She said when the wife had been drinking, she became belligerent and angry and was not pleasant to be around. All of that evidence is consistent with the personality testing done by Dr W. Thus, it is not just the expert who was making the observation.
Ms L made reference to the incident that occurred at the school in December but the wife had made the concession that her behaviour on that occasion was appalling. Ms L’s evidence was therefore very significant.
Ms M also provided an affidavit and was not required for cross-examination. She met the wife in a mothers’ group through the local child health centre. She too observed the appalling behaviour of the wife. It is very sad that the wife has to be embarrassed by her former friends and acquaintances coming forward to express their concern about her behaviour. Hopefully this has been a cathartic event.
The wife too relied upon affidavits including those of her mother and father. The wife’s father provided an affidavit but was not required for cross-examination. Her mother was required for cross-examination. I think it is better that I say as little as possible about her contribution. In my view, the best thing that the wife’s parents can do is to be supportive and ensure that the finances are directed towards making their daughter well. They have a very significant role for the protection of their granddaughter to monitor the wife’s health to such an extent that if they were concerned about the child’s welfare, they would contact the husband and discuss with him the fact that he may be a more protective parent than their daughter.
I have already mentioned the wife’s mother’s confrontations with Ms Y and indicate again that whilst I have accepted her evidence, the sooner the cudgels are put down, the better for everyone.
I have read the affidavit of the maternal grandfather. He made reference to his association with the child and there is little doubt that there is a loving and caring relationship there. It would be very sad if that relationship was damaged by the behaviour of the wife. The maternal grandfather said that sometimes his daughter shot off her mouth without necessarily thinking about the consequences of her words. He made a remarkable statement as follows:
I couldn’t imagine this being of any surprise to [the husband] as [the wife] has always been like this.
The affidavit then went on to say that the maternal grandfather provided the wife with financial support including the purchase of her current home and the funding of her legal costs. Perhaps some of that money might be more efficaciously spent on fixing the problem that has been long-standing in relation to the matters raised by Dr W.
The wife also provided an affidavit by Mr J who said that he worked as a drink-driver presenter at an awareness driver education course. He said he had spent three years studying to obtain a nursing certificate and then went on to obtain a post-graduate degree in psychiatric nursing where he had worked for 40 years. He is the next door neighbour of the wife.
Mr J’s evidence was that he watched the child with her mother and had regular conversations with the wife. He went on to mention that they had a glass of wine. He said he became aware that there was an allegation about the wife drinking too much from time to time and whilst he had witnessed the wife drink at times, it was when the child was not at home. He said that he noticed it was not very much in the last eighteen months or so. He was the one who assisted in the purchase of the breathalyser and he has witnessed several of the wife’s breath tests.
This evidence was important because this man was obviously aware of the dilemma. In my view, he needs to be conscious of the evidence of Dr W that the wife should not have any alcohol in the house nor for that matter, at least for the time being, should she be drinking at all. If there is to be a concerted effort to resolve the problem of the wife, Mr J may very well be of assistance.
Ms N also provided an affidavit and was not required for cross-examination. She observed the wife to be a devoted and caring mother and had significant involvement in the sports arrangements. She said she was impressed by the wife’s support for the child’s sport and the fact that she ran the child around. All of this evidence indicated that the wife is a very devoted and caring parent. No-one suggested that the wife did not provide all of the necessary physical needs for thechild. The real problem in this case is the emotional needs and very few people provided evidence of an objective nature to show how the conflict between the parents is impacting on the child. For that reason, the evidence of Mr P was very important.
I do not intend to deal any further with the evidence of Mr P because, as he said in viva voce evidence, he has been dealing with the family for a number of years and little has changed. The matter is now in the hands of the wife. If she does not alter her long-standing personality trait problems which are exacerbated by alcohol, the Sword of Damocles as I already mentioned, may very well drop.
The final submissions of all counsel were succinct. The Independent Children’s Lawyer indicated that it would be better to change the structure and give the husband the greater amount of time but also to put in place the Mr P parallel parenting plan. In my view, there is not sufficient evidence to indicate that that would make any difference if I did change the time. The importance lies in the plan for the wife. In my view, that could be adequately covered by orders.
Counsel for the husband submitted that this was a case where the time should be reversed for the reasons which I have set out.
Counsel for the wife submitted that this was a case where things were starting to happen for the wife and that there should be no change in the structure notwithstanding her earlier position that the child wanted to reduce the time.
In my view, no changes here will make much difference to the child unless her parents are completely excluded from having any contact with each other directly or indirectly. It goes without saying therefore that it is important that I fix the structure of the handovers, the involvement in each other’s lives and that of the child and that any contact between the parents other than in an emergency, may very well have the matter brought back before the Court.
This is not a second chance for the wife but an opportunity for both parties to end up having a significant role in the child’s life. It is a final chance for the child.
I earlier mentioned that the law requires the Court to examine a number of matters. It is clearly contrary to the intention of the legislature for parents to be forced into the situation that the husband and wife are here. The whole tenor of the legislation in Part VII revolves around cooperation and joint decision making. The parties are a long way from that in this case. The whole purpose of the legislation is to ensure that children benefit from arrangements. The child has not benefited from any such arrangement throughout her very short life. The consequences of that continuing were made clear by Mr P. It is conceivable that if what I now put in place fails, one party will almost certainly have to be excluded from the child’s life in the future. That would be very sad not only because of her rights as a child, but also because it is very clear that she loves both parents.
Section 60CA of the Act says that a court must not make an order unless it is satisfied that it is in the best interests of the child to do so. Section 60CC requires the Court to consider a number of matters in determining how the best interests’ principle is decided.
I propose to deal with the s 60CC factors globally. It is clearly important that the child benefit from having a meaningful relationship with both parents. She will do that by the orders that I propose to make which allow each parent to participate in the child’s life without interference of the other.
It is also important to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. There has been no physical violence in this case but the psychological harm arising out of the abuse if the child becomes aware of it is clearly contrary to her best interests. At this stage however, I am satisfied that it is contained to the parties as adults.
I have carefully considered how much weight should be given to the child’s views as expressed not only through her mother but also through her writings. There is a very strong relationship with the wife who does so much of the daily running around and care which no-one otherwise criticised. The husband too is assisted by his wife Ms Y and nothing I heard indicated that the child does not want to spend time with her father and Ms Y.
To the extent that the child wrote about being heard is of relevance, I think it can be said that the Court has listened. The Court is not listening to her views so much about time with her respective parents but the fact that she has parents in conflict and the Court is going to try and do something about it.
There is little doubt that the nature of the relationship of the child with both parents and Ms Y must be fostered. If I was to change the time, I suspect that there would be a very strong resistance by the child and that its flow-on effect may very well damage the relationship between the husband and the child.
No-one could suggest in this case that the husband and the wife have been anything other than persistent in endeavouring to sort this out but unfortunately their focus has been on each other rather than on the child.
I have very carefully considered as I have earlier mentioned, the impact on the child of a change in the arrangements. It is significant in this case that the husband did not have a very clear plan as to what would occur if I made a change of significance and the child resisted it. I have no idea whether she would be so distressed that her current dilemma as reflected in her writings, would become worse. Mr P said that this child would grieve but she would get over it. Mr P has not seen the child for over a year and I am not entirely convinced that the transition would be that smooth.
The current orders and what I propose to do to amend them, have no practical change for the parties other than that they will be restricted in the period that the child spends in the other parent’s household. As I observed in discussion during the hearing, if equipment or homework books are not transmitted between the parties, they will have to live with it and work out an alternate solution rather than abusing each other.
Mr P was very critical of the parents and one of the matters that the Court is obliged to take into account is the responsibilities of parenthood. I find on the evidence of Mr P that both parties deserve criticism for their loss of focus over the entire period since separation. Whilst I have earlier mentioned that the catalyst for problems in this particular hearing came from the Bali trip, there is little doubt that this has been going on for a number of years and it is time to stop for the child’s sake.
I have already made reference to the family violence orders and nothing further needs to be said about those.
The final matter that the Court is obliged to consider is whether or not a final order should be made that would be less likely to bring further litigation. The parties have an opportunity now to sit back and think about what they have done to each other and to their daughter. Any future litigation is likely to be much simpler. In my view, this is not a case where I should make interim orders to see how the wife goes with her treatment but I do consider it is important that boundaries as indicated by Mr P should be set in place immediately.
Accordingly, I make orders in terms of the orders at the commencement of these reasons.

I certify that the preceding one hundred and fifty one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 November 2013.

Associate:

Date: 6 November 2013

[2013] FamCA 873

6 November 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Natural Justice

Procedural Fairness

Injunction

Remedies