F and B
[2008] FCWA 15
•8 FEBRUARY 2008
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: F and B [2008] FCWA 15
CORAM: CRISFORD J
HEARD: 13-14, 18-21 DECEMBER 2007
DELIVERED : 8 FEBRUARY 2008
FILE NO/S: PT 2322 of 2004
BETWEEN: F
Applicant/Mother
AND
B
Respondent/Father
Catchwords:
Children's issues - with whom a child should live - intractable conflict
Child support - school fees
Contravention - not proved
Legislation:
Family Law Act 1975, s 4,
Family Law Amendment (Shared Parental Responsibility) Act 2006, Part VII. s 60CA, s 60CC, s 61DA, s 65DAA
Aboriginal Affairs Planning Authority Act 1972
Child Support (Assessment) Act 1989, s 124, s 125
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr F Castiglioni QC
Respondent: Self Represented Litigant
Independent Children's Lawyer : Ms L [Y]
Solicitors:
Applicant: Elizabeth Wiese & Associates
Respondent: Self Represented Litigant
Independent Children's Lawyer : Legal Aid WA
Case(s) referred to in judgment(s):
Nil
1The Court is asked to determine where [Susan] now aged 6 years will live. Her mother, [Ms F] wants her to live in her household which is comprised of her partner, [Mr R] and [Susan]’s half brother, [Sean]. Her father [Mr B] wants to have an equal shared living arrangement. He presently lives with his parents, [Mr B Snr and Mrs B].
2On 3 November 2006 [Dr W], clinical and forensic psychologist was appointed as the single expert in this matter. He initially provided a report to the Court in December 2006. This was updated by a report on 30 May 2007. He gave evidence at trial. He maintained a view that in this case there was ingrained, intense and intractable conflict. Both parties presented to him as inflexible. He comments:
“Sadly, this is a case where the issues are not going to be about what is best for [Susan], but how to minimise the damage caused by the conflict between the parents. Case management by the Family Court will be very necessary.”
3Despite the pessimism of [Dr W] and the entrenched and bitter atmosphere that prevails, it is necessary for the Court to do the best it can to formulate orders that are in [Susan]’s best interests.
Matters before the Court for determination
4The parties separated on 5 March 2004 when [Susan] was 2 ½ years old. [Ms F] initially commenced proceedings on 30 April 2004. Child welfare orders were made by consent before Tolcon J on 6 April 2005. [Susan], then 3 ½ years, was to live with her father for five days every fortnight and for half of school holiday periods.
5[Ms F] again commenced proceedings in relation to child welfare issues on 18 August 2006. She raised the issue of child abuse. She sought a suspension of the existing orders. On 30 August 2006 the Court reduced the time [Susan]’s father spent with her to midday Friday until 4.00 pm Sunday. The paternal grandparents were to be involved in the handovers and the time with [Susan] was to be spent at their home. It was to occur each week.
6[Mr B] filed a further application on 10 May 2007 seeking orders in relation to child support. This prompted the mother to amend her original application to include her own orders for child support.
7[Mr B] sought and was given leave to withdraw his application in relation to child support at the beginning of the trial. He was successful in having the Child Support Agency address his grievance.
8[Mr B] had also filed three contravention applications relating to incidents that took place on 13 April 2007, 20 April 2007 and 1 June 2007. The contravention applications were dealt with in the course of evidence relating to the substantive issues.
9[Ms F] had filed a Notice of Child Abuse on 20 September 2006. She sought and was given leave to withdraw this Notice at the beginning of the trial.
10[Ms F] is seeking sole parental responsibility for [Susan] and that [Mr B] spend time with her each alternate weekend from 5.00pm Friday until 5.00pm Sunday. This time is to be supervised by his parents. There are numerous other orders sought essentially regulating [Mr B]’s behaviour. She seeks that, over and above any assessment for child support, [Mr B] pay half of all the costs of [Susan]’s attendance at [the private school].
11[Mr B] seeks an equal sharing of time. However, guided by [Dr W], if one parent is to be the primary caregiver then his position is that he wants to have [Susan] live with him for nine days of every fortnight. He seeks an order that the parties have equal shared parental responsibility for their child. He seeks that any handovers of [Susan] be done “door to door”.
12On 30 August 2006, the Court made an order that [Susan] be separately represented. The Court has had the benefit of an independent children’s lawyer throughout the proceedings. After all the evidence her Minute of Proposed Orders was provided to the Court. It seeks that the mother have sole parental responsibility for [Susan] save and except in relation to weekend extracurricular activities. She does not propose final orders but rather that for the next six months and pending further review [Mr B] spend time with [Susan] each alternate week from after school on Friday until the commencement of school on Tuesday. There is also provision for [Susan] to spend one half of the term school holidays with her father.
Applicable Law
13These proceedings fall for determination under the Part VII of the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006.
14The objects of Part VII of the Act are to ensure that the best interests of children are met by -
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
15S 60CA of the Act makes clear that the best interests of the child is the paramount consideration in my determination. S 60CC sets out the matters I must take into account in determining what is in the best interests of [Susan]. S 60CC(2) details what are described as primary considerations and s 60CC(3) details additional considerations to be taken into account in determining what is in the child’s best interest. The additional considerations are not secondary considerations but are matters to be read in conjunction with the primary considerations.
The presumption of shared parental responsibility
16S 61DA of the Act provides that a Court must apply a presumption that it is in the child’s best interests for its parents to have equal shared parental responsibility. Parental responsibility relates to decision making and not the time to be spent with each parent. It does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or child abuse.
17The presumption, however, may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for its parents to have equal shared responsibility for her.
18There are certain consequences which arise when a parenting order is made for shared parental responsibility. The first consequence is that the parties must consult and make a genuine effort to come to a joint decision about major long-term issues. These long-term issues are specifically defined in the Family Law Act 1975.
“Section 4:
19Major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”
20The parties are obligated by the legislation to consult about these issues and make a genuine effort to come to a joint decision about them. Neither party can ignore this obligation.
21I do not intend to make an order for equal shared parental responsibility except for the one area of weekend extracurricular activity. The order I intend to make in that regard is as proposed by the independent children’s lawyer. I am satisfied that the presumption has been rebutted. The reasons for coming to this conclusion will be specifically canvassed in the body of my judgment. However, I simply note here the Court has already been called upon to make a decision in relation to [Susan]’s schooling. On 30 January 2007, without consent, the Court made an order for [Susan] to attend [a private school]l. The parties have also been at odds about whether their child is allergic to [certain drugs].
22There is a considerable overlap between the issues relating to equal shared parental responsibility and the considerations I must take into account when determining what is in the best interests of [Susan]. I do not intend to duplicate my reasons here.
23Despite the fact that I am not satisfied it is in [Susan]’s best interests that her parents have equal shared responsibility for her, it is necessary for me to consider whether [Susan] should spend equal time with her parents as that is an order sought by [Mr B]. If I decide that it is not in her best interests and is not reasonable and practicable I still need to consider whether or not it would be in her best interests to spend substantial and significant time with him, and if so, whether such an order would be reasonable and practicable.
24The Court must consider the impact of any arrangement it orders on the child and any other matter that is considered to be relevant. The Court has to evaluate the behaviour of the parents in order to determine what time is appropriate and in the best interests of a particular child. The legislation specifically notes that the Court has power to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services. I intend to make such orders in this case.
Observation of the parties and their respective families
(i)[Ms F]
25There is no doubt that [Ms F] is a loving mother and wants the very best for [Susan]. Despite the fractured nature of the relationship between the parties it is to her credit that [Susan] has, in the main, been shielded from their various disputes. To this end she appreciates the need to quarantine [Susan] as much as possible from the nastiness and naked animosity that exists between the parties. However, despite the fact that she is able to say she understands the dynamics at play between herself and [Mr B] her actions, at times, belie this.
26Handovers have been problematic for a number of reasons. One of those reasons is [Ms F] does not appreciate that her own behaviours, both verbal and non verbal, make it impossible at times for [Susan] to separate to go to her father. I was unsure whether her failure to act appropriately at handover was due to lack of awareness of her own behaviour or rather lack of insight into how that behaviour impacts on [Susan].
27It is evident that she has developed a defence mechanism of simply shutting down when [Susan]’s father is around. He describes her as staring right through him – a death stare. There were times she certainly did adopt a totally impassive demeanour in Court. Historically, at least, I accept that [Mr B] has been aggressive, derogatory and insulting of [Ms F]. I accept this has changed to a great extent. However [Ms F] has been unwilling or, at least, unable to give up her siege mentality. As [Dr W] remarked it is necessary for her to get her emotions into context.
28She was not shy in blaming [Mr B] for all her woes. She made a complaint about [Susan] using swear words. She was clear that swearing did not ever happen in her house, did not happen at [Susan]’s school and had not previously happened at day care. She was adamant that no-one in her family ever swore including her now 14 year old son and her present partner. She therefore concluded the fact that [Susan] had used crude language was a result of her association with her father. Her inability to even contemplate another scenario is concerning.
29Although, through her counsel, she withdrew her Notice of Child Abuse, it was made quite clear that there was some lingering, but clear thought that the highly improbable claims made by [Susan] may just be true. In cross-examination [Ms F] said the Notice had been withdrawn because she could not prove the allegations.
30Despite the high level of distaste and distrust she has for [Mr B] the Court was persuaded of her willingness to undergo some form of therapy to make changes. She had failed to undertake the “Mums and Dads Forever” program although appeared to be willing to do this if the Court so ordered.
(ii) [Mr B]
31[Susan]’s father had completed the “Mums and Dads Forever” program. He completed it during the course of the trial. He was able to acknowledge that he may well have been part of the problem especially in the early days of the Court proceedings. I was satisfied that he had changed his behaviour in a material way. However, there remains an ingrained inflexibility and a totally unrealistic approach to issues between the parties such as communication, face to face handovers and their ability find any common ground on matters relating to [Susan].
32He is extremely rigid in his views and is convinced that [Ms F] will not change. He displayed a lack of insight into how his behaviour may impact on [Susan]. He had quizzed her and videotaped her to provide proof and counter the allegations of abuse levelled at him.
33He, too, is a very loving parent with a lot to offer his daughter. He has persisted in maintaining his relationship with [Susan] despite incredible barriers being placed in his way. He conducted his own case and was able to identify relevant issues throughout his case providing the Court with valuable information about both parties. He accepted [Ms F] was a good mother to [Susan].
(iii)The grandmothers
34It is not often that a Court has the traditional image of sweet and gentle grandmothers shattered to quite the extent it did in this case.
35A patina of politeness failed to disguise the venimous attitude of [the maternal grandmother]. She had entered into the war between the parties with a dedication that was breathtaking.
36She had nothing at all positive to say about [Mr B]. On the basis of her forty years experience [in the health profession], she opined that he had a borderline personality disorder, an antisocial personality disorder and was a psychopath. When asked how she would support [Susan] in her relationship with her father she commented on more than one occasion she would simply keep her mouth shut and pray.
37She involved herself in her daughter’s relationship with [Mr B] with very little justification. She correctly identified that her emotions overrode her professionalism at times. She was suspicious, inappropriate and disparaging. She had hired a private investigator to follow [Mr B]. Her behaviour at times was completely undignified, intrusive and of little assistance to the parties in forging a future for [Susan]. At one handover she had been cautioned by Police that she faced arrest if she did not keep out of the incident.
38[The paternal grandmother] had acted in a way that was only marginally better than her maternal counterpart. She had championed her son’s cause and ensured the Department for Community Protection was advised of every possible aspect of this case, all from her perspective. She readily accepted she had questioned [Susan] about issues in order to gather evidence. Like her son she demonstrated a lack of insight into how her behaviours impacted on [Susan] and how some of her actions were simply inflammatory.
39I accept that for about thirty-four years she has driven her car down [a local street] in order to take a short cut to and from her home and also to avoid heavy traffic. In the normal course this would hardly excite comment. Unfortunately, this is where [Ms F] lives. [The paternal grandmother]’s frequent drives down the street caused suspicion. Her refusal to take another route albeit marginally longer for the sake of compromise was simply provocative.
40The incident of “road rage” that allegedly took place on the 28 July 2006 was an example of unseemly behaviour by at least the paternal grandmother and the mother – and on one version the maternal grandmother. It matters not, the incident and its sequalea were unhelpful. As [the paternal grandmother] was turning into [the street where Ms F lives], it appears that [Ms F] was coming out of the street in a work car. There appears to have been some jockeying for position with [Ms F] following [the paternal grandmother], sounding her horn. As a result [the paternal grandmother] unsuccessfully attempted to obtain a restraining order and made a complaint to [Ms F]’s employer.
41Despite all this there is no doubt, the paternal grandmother has [Susan]’s best interests at heart.
(iv) The paternal grandfather
42[Mr B Snr] is a grandfather with a lot to contribute to [Susan]. He appeared to be reasonably balanced and wounded by behaviour he could not understand. He was hurt about the inability of [Susan]’s mother to actually talk to him. Her failure to acknowledge him or offer any greeting was something he found perplexing.
43He described, very realistically, the gorgon-like stares he had experienced from [the maternal grandmother] and also her daughter. He simply wanted a quiet life.
44He had realistic expectations about the parties and their inability to communicate. He plays a very hands on role when [Susan] is within his household.
(v)[Mr R]
45[Mr R] and [Ms F] commenced a relationship in August 2004. He had become completely involved in the proceedings. He had undertaken the gathering of evidence by photographing and videoing [Mr B], playing private investigator and recording telephone conversations between [Susan] and her father. He still honestly believed the allegations of child abuse had taken place. He feared for [Susan]’s safety both in a sexual and physical sense. He believed that [Mr B] would “overstep the mark and kill her”. He did not believe [Mr B] was “normal”.
46He deposed in his affidavit filed 29 November 2007 that between August 2004 and mid 2006 [Mr B] had driven past [Ms F]’s house on numerous occasions. He deposed to nothing recent. In his evidence, he said [Mr B] had driven past frequently – a weekly occurrence, but such behaviour had dropped off with the court case looming. [Mr B] had admitted having driven past the house on his way to the shops, but said he no longer took that route.
47The following day, in cross-examination of [Mr B], it was put to him by [Ms F]’s counsel that he had indeed driven past the house on his way to work at 4.50 am that very day, prior to his court attendance and shouted out “I love you [Susan]”. He denied this. He said he had commenced his work [in the warehouse] at 2.56 am and during the time it is alleged he drove past the house and shouted out, he was [at work]. The previous day he had been asked about his work hours which commenced either 5.00 am or 5.30 am depending on the day. He also gave evidence about when he left his residence in order to arrive at work on time. He did not advise his work hours during the course of the trial. [Mr R] and the maternal grandmother were present in Court throughout his evidence.
48The propositions counsel for [Ms F] put to [Mr B] caused some concern to the Court. They related to issues in contention. They related to behaviour during the course of the proceedings and were further explored. The independent children’s lawyer made enquiries of [Mr B]’s workplace and [Ms F] was recalled to give evidence.
49She indicated that [Mr R] was presently on his way to [the North] and would not be present in Court. He is a truck driver. He had told her he had been awoken at 4.50 am to [Mr B] going past their residence on a work motorcycle shouting in the manner previously described. She said she had not heard the words herself although it was suggested to her by [Mr R] she had woken at the time. The manner in which she gave her evidence was unlike the manner in which she had previously given her evidence. She appeared nervous, uncertain and slightly embarrassed.
50It transpired that [Mr B] had actually been [at work]. There was no opportunity for him to have been at the house of the maternal family at that time. He had started work at around 3.00 am and completed his employment at 8.30 am and proceeded to Court. His hours had been changed to fit in with Court.
51Of course there are a number of possibilities. [Mr R] may have been mistaken. It may have been someone else’s motorbike and he misinterpreted sounds. As [Dr W] pointed out, [Mr R] may have, as a result of past behaviour, had a paranoid concern especially in the context of the trial. Again, it may simply have been a malicious attempt to discredit [Mr B]. [Mr R] was never available for recall.
52The truth of the reasons for [Ms F] and it appears [Mr R] accusing [Mr B] of this will never be known to the Court. When the accusation is coupled with [Mr R]’s attitude there is room for disquiet.
53The Court has considerable concern about members of the maternal family who hold such extreme views about [Susan]’s father with very little concrete evidence to support those views. Even if there is some truth in those views, [Susan] needs to be screened from them. The mother is the only one who shows some understanding of the situation. She will need to ensure [Susan] is protected from this fixed negativity.
Applying the law to the facts
54I will firstly turn to the primary considerations in determining what would be most likely to promote the best interests of [Susan]. The parties filed affidavits that can only be described as tomes. Each explored and dissected numerous incidents. I have considered all the evidence but focused on more recent and relevant issues to assist in my determination.
(a)the benefit to the child of having a meaningful relationship with both of the child's parents;
55[Susan] presently has a meaningful relationship with both her parents. This has not always been the case but at trial the evidence suggests that she has a warm and loving relationship with both her mother and her father. However, the Court is aware that any benefits to [Susan] in having such a meaningful relationship with each of her parents must outweigh any negative aspects that there might be to such relationship.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
56Unfortunately, this matter has been peppered with many and varied allegations of abuse and behaviours likely to impact on [Susan]’s physical and psychological health. Although, the Notice of Child Abuse filed by [Ms F] was withdrawn, in his opening her counsel made it clear she alleged there had been other behaviours of [Mr B] not befitting a parent. It is evident that this applies to both parents. [Dr W] reported that the entrenched and bitter conflict between the extended families is a risk factor. The fighting at handovers has also been a risk factor.
57Although there are a number of matters that could be dealt with here I intend to deal only with two. Other relevant matters will be dealt with later in the judgment.
58On 2 February 2006 there was an incident between the parties at the commencement of contact at the handover point at a McDonald’s outlet in [the suburbs].
59[Ms F] was late attending the handover. This caused a dispute between the parties which caused [Susan] to become upset. A struggle between the parties over [Susan] ensued. In the course of the struggle, [Ms F] was struck by [Mr B].
60The police were involved. [Mr B] was charged with aggravated assault. He was convicted in the Perth Magistrate’s Court on 30 June 2006. [Ms F] deposes to him being given a suspended conviction with a nine month good behaviour bond. His appeal against conviction was unsuccessful. He maintains he never struck [Ms F].
61What is clear to this Court is that there was physical interaction between the parties in the presence of and very close to [Susan] which endured for a period of time. [Susan] was clearly upset by the incident. Although [Mr B] was convicted of the criminal offence I have no doubt that [Ms F] played a part in this matter. Whilst her behaviour might not have been considered provocative in a criminal law sense I have no doubt her actions were, at the very least, unhelpful. Coincidentally, [the maternal grandmother] had arranged for a private investigator to be present at or around the handover with a video camera. This incident shows neither party in a particularly good light.
62Handovers have been highly charged from the very beginning. Historically, there have been problems. Initially the parties did the handover between themselves at their homes. This rapidly changed to the use of various fast food outlets. Unfortunately there was a lot of denigration, which I accept came mostly from [Mr B]. Police called mostly by [Mr B] were often in attendance and there was videoing of the interaction, mostly by the [F] family.
63After the proceedings commenced in August 2006, in order to ameliorate some of the nastiness, [Mr B]’s parents were to do the handover. The handover was to take place at a Subway outlet in [the suburb]. It was in close proximity to a shopping centre. Unfortunately, although the intent that [Mr B] not be involved was obvious, he continued to skirt around the car park or shopping centre close to Subway.
64By May 2007, at the suggestion of the independent children’s lawyer, Mother Hen service was used to conduct the handover between the homes of the parties. On the 28 September 2007, the Mother Hen centre itself was used as the venue for the handovers.
65The final solution for handover has created a degree of calm. The evidence is that as a result of past events, [Susan] is terrified at seeing her parents together at handover. I accept she is not fearful of her father, but is fearful of the fact that both her parents are likely to conduct themselves in such a manner that the situation becomes inflamed and totally out of control.
66On 6 November 2006 [Ms F] filed a Notice of Child Abuse in the Family Court. The notice arose from a “disclosure” [Susan] made, initially, to her mother that [Mr B] and two of his friends had punched her on her crotch and bottom area. [Susan] was taken variously to her general practitioner, a clinical psychologist, Princess Margaret Hospital child abuse unit, Police child abuse unit and was further interviewed by the then Department for Community Development whose workers compiled two reports. The allegations were also considered by [Dr W] in his report. Overwhelmingly, it was found there was nothing to support the allegation.
67The maternal family, [Ms F] to a lesser extent, remains of the view that the abuse either did or is likely to have taken place. When matters first arose the maternal family took it upon themselves to question [Susan]. The manner in which this “interview” was conducted is inappropriate and completely worthless from a forensic point of view.
68There can be little criticism of [Ms F] for taking the initial action she did. She acted on advice. However, matters took on a life of their own and it is clear that [Susan] was subjected to numerous interviews and examinations and a loss of contact with her father, all with very little basis. This is of concern to the Court.
69Whilst the maternal family hold their views the Court considers there is a need to protect the child from possible psychological harm as a result of these views.
70I must now turn to the additional considerations set out in s 60CC(3) of the Act. The additional considerations are not secondary considerations but are matters to be read in conjunction with the primary considerations.
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
71[Susan] was 5 years old when first interviewed by [Dr W]. She was 6 years old on the second occasion. [Susan]’s views appear to be positive of both her parents and the extended families on both sides. In his updated report [Dr W] says [Susan] has a much stronger bond with her mother. The rider to this is that there is some evidence of influence by the mother of [Susan].
72Given the nature of the relationship between the parties it is difficult to ascertain just exactly what [Susan]’s views are. In any event, given her age, little weight can be placed on them.
(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
73I have no doubt that [Susan] has a good relationship with both of her parents. She also has a good relationship with both sides of her family.
74Her father has been able to develop and maintain a very good relationship with [Susan]. At times this has been made very difficult for him.
75There is nothing to suggest she has other than a good relationship with her stepfather and her brother [Sean]. Her grandparents on both sides fulfil a close and meaningful role with her.
76Dr W] comments that both parents love and are devoted to their daughter. [Mr B] is caring and focused on what makes [Susan] happy. [Ms F] provides a good quality and stimulating environment for [Susan]. She provides a healthy parenting style.
77Without a doubt the real issue for this Court is the relationship between the parties and how that impacts on [Susan]. Both parties appear to have been able to shield [Susan] from the effects of their behaviour to a certain extent. While she has been present during particularly harmful interactions both parties have been in a position to minimise any obvious effect on [Susan]. This is to their credit. However if they are to continue their present relationship it is likely that [Susan] will suffer the effects later on in life.
78The evidence was clear. As [Dr W] says “It is the combined action of both parents which is causing the problem in this case.”
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
79In his first report [Dr W] found no evidence that [Ms F] was likely to promote the relationship between [Susan] and her father. [Ms F], in the Court’s view, would not hesitate to stop contact if there was any thought she could do so. [Dr W] suspected that if [Mr B] did not keep fighting to see [Susan] then the mother would not initiate it herself. It would cease. At the end of the trial there seemed to be some tacit acceptance by [Ms F] that [Mr B] was here to stay and that she did need to at least develop strategies, through counselling, that would help her deal with this fact.
80[Sean] now 14, is the child of relationship between [Ms F] and [Mr Y]. [Mr Y] gave evidence. Although he now is able to see [Sean], he said [Ms F] had always made it difficult for him. He had tried initially and for a number of years without very much success and had simply given up. It appears that [Ms F], just prior to her separation from [Mr B], encouraged a relationship between [Sean] and his father. [Dr W] reports:
“It is difficult to know how much this would have occurred of its own accord and how much was the mother’s way of blocking [Sean]’s relationship with [Mr B]”.
81I accept that whilst married to [Mr B] it suited her to have him play a part in [Sean]’s life. She had wanted to change [Sean]’s surname from [Y] to [B] and had obtained papers to do this. She had not intended to get [Mr Y]’s consent to this. I accept she was difficult and obstructive to [Mr Y] and sought to substitute [Mr B] for him. When that relationship soured, she then sought to reinvolve [Mr Y] with [Sean].
82[Mr B] has been persistent and enduring in his attempts to have a relationship with his daughter. [Ms F] has shown a lack of insight into [Susan]’s right and need to know both her parents.
83[Susan] is not encouraged to call [Mr B] “Dad” within the maternal household. He is referred to [by his first name].
84[Dr W] also reported that there was little evidence [Mr B] would promote a relationship between mother and daughter. [Mr B] had actually taken steps to do some counselling and a parenting program. There was some evidence of a shift in attitude from 2004 until the present. [Mr B] can acknowledge the part he played in the early days of the breakdown. He was not able to fully accept he continued to play a part in the ongoing problems and that he needed to continue to address this.
85However, he did appear to accept [Susan] needed her mother as much as she needed him.
86Neither party is likely to actively encourage a close and continuing relationship between [Susan] and her other parent at this stage. However, they each seem to accept the other as a continuing presence.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
87[Susan] is likely to benefit from spending time with both her parents as long as it is stress free and without continual anxiety. If the Court was to make an order that there be an equal sharing of time or that [Mr B] be primarily responsible for [Susan] the likely impact on [Ms F] will be substantial. This in turn will impact on [Susan]. She has a very close bond with her mother and her mother’s unhappiness will influence her state of mind.
88[Dr W] in his updated report said that [Susan] told him her mother misses her a lot and cries when she goes to see [Mr B]. She told [Dr W] that her mother had told her this. [Susan] is acutely aware of her mother’s concerns when she is with her father. [Susan]’s views are influenced by this.
89If [Susan] is not in her mother’s household for most of the time she will not see as much of her brother [Sean]. Whilst I accept their relationship is close it is of less moment than with a child closer to [Susan]’s own age.
90The Court does not intend to make orders that will see [Susan] separated from either parent.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
91As a result of the nature of the relationship between [Susan]’s parents there is always likely to be some practical difficulty and attendant expense in [Susan] spending time with either of them. One difficulty arises because the parents cannot act respectfully at handover. This has necessitated an independent supervision agency assisting [Susan] in having a smooth transition between households.
92[Mr B] wishes to eliminate the expense by having a face to face handover or as he described it a door to door handover. He saw it as being entirely appropriate that he attend [Ms F]’s premises to collect [Susan] and no doubt envisaged that she would attend his premises on other occasions. Unfortunately, despite his ill founded optimism history suggests it is simply not possible. Given it places [Susan]’s wellbeing at risk I intend to order an independent place such as the school or an agency conduct the handover. This will necessitate some practical difficulty at times and also some expense associated with payment to any independent agency.
(f)the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
93A report from [Susan]’s pre-primary teacher shows that she is a high achiever, has an excellent attitude and always gives her best effort. She is punctual, neat and tidy and always presents with the correct uniform.
94I have no doubt that both parties are able to provide for the child in a practical sense. [Ms F] has provided a high standard of care in this respect. In fact the evidence suggests she has a high capacity to provide adequately for [Susan]’s physical, social and emotional needs save and except where it involves [Susan]’s father.
95Given her efforts to keep [Mr Y] away from [Sean]’s life and the indicators that this could happen here if not for [Mr B]’s persistence, there is a concern about her overall capacity.
96[Dr W] described [Mr B]’s parenting style as that of a “jelly fish” approach. He pays insufficient regard to boundaries. He overindulged the child without any attention to age appropriate activities.
97There was little evidence of his attempts to co-parent or to give [Ms F] support in her parenting of [Susan].
98The examples of this were many. Against [Ms F]’s instructions, he allowed [Susan] to use nail polish. [Ms F] disapproved of this and set out her reasons. They included school disapproval and the remover irritating [Susan]’s skin surrounding the nail. [Mr B] continued to allow [Susan] to use it on the basis that she loved playing with nail polish and eye shadow. There were many other instances.
99In both 2006 and 2007 whilst in her father’s care, [Susan] was taken to the “Gay and Lesbian Pride Parade”. [Ms F] objected to this. She saw it as inappropriate for a young child, given some of the participants had exposed buttocks and breasts. [Mr B] saw it as a family outing.
100[Mr B] thought nothing of overindulging [Susan] and allowing her to have just what she wanted despite the fact it may not be age appropriate or that it lacked consistency in behaviours between households. [Mr B] readily accepted that he allowed her to do as she pleased, but said it was a result of his limited time with her and that he felt like spoiling her when he did see her. He also suggested that [Ms F] was a “control freak”. I suspect there is an element of truth in both his responses.
101In a case such as this, it is little justification. [Susan] is provided with a high standard of care in her mother’s household. [Ms F] has a keen sense of age appropriate behaviour. Although she may seem a little lacking in a sense of fun, be somewhat hyper vigilant and inconsistent as [Susan] may use nail polish in her household, overall I find she has [Susan]’s best interests at heart. She is not simply seeking to control [Mr B].
102[Ms F] has been primarily responsible for [Susan] in a financial sense. To date she has paid for [Susan]’s education without assistance from [Mr B] despite an ability to assist if he really wanted to.
103Although [Mr B] can care for [Susan] physically, his work hours are such that if [Susan] was to live with him on an equal shared basis, his parents would be intimately involved on a daily basis in meeting her needs in a physical sense. They are willing and able to assist.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
104Issues relevant to this consideration are dealt with in the subsection below.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
105The issue of [Susan] being a person of Aboriginal descent was raised in a rather diffident fashion. In [Ms F]’s Papers for the Judge, it is stated “[Susan] is a young female child with Aboriginal heritage from her mother’s family”. In [Dr W] report he states “by way of life history, [Ms F] said that her father grew up in [a town in the Eastern states], and that he was half-aboriginal.” In her trial affidavit, she describes her occupation as Aboriginal [liaison officer]. This in itself is equivocal, but there is no other reference in her documents relied upon for trial to inform the Court of how she views [Susan]’s heritage.
106[Mr B] raised this as an issue. He correctly points out that [Ms F] has variously identified herself as an Aboriginal in legal forms but this has not been a consistent way of describing herself. When [Mr B] has sought to enquire about this issue, he is told to mind his own business.
107I accept that in the past he is likely to have been derogatory about the issue and there have been racial slurs. However, I also accept it when he deposes that he does require some understanding about the issue because it may have consequences for their daughter. As he says “I need to know for [Susan]’s sake because I do not want [Susan] to ever feel ashamed about her heritage if proven”.
108Again it is an issue about which [Ms F] needs to relinquish her siege mentality, but about which [Mr B] has to have some understanding of the role he has played in her reluctance to discuss this issue with him.
109In the Aboriginal Affairs Planning Authority Act 1972 a person of Aboriginal descent means any person living in Western Australia wholly or partly descended from the original inhabitants of Australia who claims to be an Aboriginal and who is accepted as such in the community in which he lives. On the evidence before me I accept that [Susan] could well fall within that definition. There is nothing for her to prove. It is a matter of how she chooses to identify herself in the future.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
110Despite very different parenting styles, both parents have a positive attitude to [Susan] and to the responsibilities of parenthood. However, the lack of insight each has, colours this aspect.
111Since the orders of 6 April 2005, the parties have used a communication book. As [Dr W] points out the books highlight “one of the most entrenched and intractable patterns of conflict” he has read in Family Court communication books. The parties go head to head on almost every issue to do with [Susan]. These ranged from concerns about an allergy to [a drug], holidays [overseas], the use of nail polish and affixing tattoos and birthday parties.
112[Mr B] does not shy away from using coarse language in the communication books. This is directed to [Ms F]’s lawyer, her boyfriend, her neighbour and herself.
113One issue that does impact on [Susan] directly is her ability to be able to attend birthday parties when she is with her father. Although [Ms F] is somewhat ambiguous in her requests for [Susan] to attend in that she does not always make it clear whether she wishes to take [Susan] or [Mr B] is to take [Susan], it is generally evident that she sees it appropriate [Mr B] take [Susan] when he has her. In his evidence [Mr B] was contradictory and inconsistent about why he did not take her. If he genuinely wishes to be part of [Susan]’s everyday life then it is essential that he takes her and involves himself in her birthday parties. I accept there may be some reluctance due to [Ms F] feeling free to discuss what she sees as allegations of abuse with other people, but it is necessary that he takes the step to involve himself with [Susan] once orders have been made.
114Although [Ms F] has generally written in an ostensibly reasonable fashion, she is persistent and dogged in her pursuit of information from [Mr B]. Her language is equivocal, but there is a certain insistence on some unnecessary issues.
115There was a time when [Mr B] affixed or allowed [Susan] to place temporary tattoos on various parts of her body including her face, throat and buttocks. On one occasion, due to unavailability of any other tattoos, [Mr B] provided clearly age inappropriate tattoos for [Susan]. I do however accept that on other occasions there had been tattoos of an innocuous nature such as fairies. [Ms F], of course, took a terrier like attitude towards the inappropriate tattoos and raised a raft of objections to tattoos in general. The tattoos irritated [Susan]’s skin, were hard to remove, were age inappropriate and placed on inappropriate parts of her body. [Mr B] could not accept that this was the case. Of course, whilst the parties had this dispute [Susan] was caught in the middle.
116The nature of the relationship between these parties is such that what could otherwise be readily discussed and agreed upon involves [Susan] in a tug of war.
117Although [Ms F] may have a somewhat restrictive approach, [Mr B], due to his inability to place appropriate boundaries on [Susan] has simply failed to compromise when it is clear he should have. On 30 January 2007 the Court made orders restraining [Mr B] from placing the tattoos on [Susan].
(j)any family violence involving the child or a member of the child's family;
118This has been canvassed previously.
(k)any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
119Between the date of separation and 12 April 2006, the parties were involved in three different restraining order applications. Only one relates to a time after the initial consent orders. After the assault in February 2006, [Ms F] applied for and was granted a violence restraining order against [Mr B]. It was contested. However, it was cancelled by her on 12 April 2006.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
120For the time being it is appropriate that the Court monitors this matter. The parties each need to address issues. The Court intends to make orders that require the parties to return in six months time so that consideration can be given to some change in the orders if appropriate or necessary. Hopefully, some monitoring now will avoid further proceedings in the future.
(m)any other fact or circumstance that the court thinks is relevant
121Each party requires some assistance to deal with the problems that are apparent in their relationship and in their parenting of [Susan].
122[Ms F] requires counselling from a clinical psychologist to assist her to develop strategies to combat her attitudes, behaviours and beliefs about [Mr B]. [Mr B] requires ongoing assistance with his parenting skills. He needs to learn to put in place some boundaries rather than overindulging [Susan].
123In the past schooling has been an issue. The Court made orders which now see [Susan] progressing extremely well at [the private school]. It is desirable this continues. Despite his early objection, [Mr B]’s evidence is that he sees the benefit in her continuing at this school. Her school reports are good and she has friends at the school. The school has shown a particularly balanced and accommodating attitude to both parties.
124[Mr B] deposes to wanting to support [Susan] with anything to do with her schooling. He cites attending parent evenings, her assemblies, sports days and parent helper duties. He has a genuine interest in being involved and it is appropriate provision be made in the orders for him to be so involved. However, given his desire to support her with anything to do with her schooling and his acceptance that he could contribute to her fees, I intend to make an order that he does make some contribution.
125The fact that he was not originally consulted about the schooling and that [Susan] was enrolled by [Ms F] as a single parent after separation shows a poor attitude by [Ms F] and suggests, again, an unwillingness to acknowledge [Mr B] as [Susan]’s father.
s 60CC(4) and (5) of the Act
126These provisions of the Act are lengthy. In essence, they require the Court to consider the extent to which each parent has fulfilled or failed to fulfil the responsibilities of a parent. Some of these matters have already been dealt with.
127[Ms F] has been particularly restrictive about allowing [Mr B] to play a meaningful role in relation to [Susan]’s schooling and her extracurricular activities. She has not been willing to allow [Mr B] to make choices about [Susan]’s weekend activities even though he has had her every weekend.
128[Mr B], on the other hand, has been of little financial assistance to [Susan]. Even given his period of unemployment and possibly low wages, he has been content to allow [Ms F] to cater for [Susan]’s needs in this respect.
s 60CC(6)
129This provision relates to a child’s right to enjoy Aboriginal culture. Where relevant this has been discussed earlier in my judgment.
Contravention Applications
130The three contravention applications the Court is asked to make a determination on simply highlight the entrenched attitude of both parties and their extended families. It appears to the Court that there is no clear answer and neither party presents in a positive light.
•13 April 2007
131An order was made on 30 January 2007 that either or both [Mr and Mrs B] collect [Susan] from the Subway restaurant in [the suburb] on a Friday and return her to the restaurant on a Sunday.
132On 30 August 2006 it was ordered that any time [Mr B] spends time with [Susan] take place at his parent’s home.
133[Mr and Mrs B] were away from 13 to 15 April 2007. [Mr B] advised the independent children’s lawyer of this. She in turn advised [Ms F]’s solicitors. A letter from [Ms F]’s solicitors of 13 April 2007 to [Mr B] concludes:
“The effect of clause 3 and clause 4 of the Family Court orders dated 30 August 2006 are that your parents:
(1)are required to collect and return [Susan] at the commencement and conclusion of your contact; and
(2)are to supervise your contact with [Susan] at your parent’s house.
…….”
134[Ms F] was not prepared to consider any alternate arrangement whereby [Mr B]’s then girlfriend would be present during the course of the weekend.
135Although [Mr B]’s sister attended Subway restaurant to collect [Susan] she was not made available. Hence the application for contravention.
136Whilst I do not accept the wording of the order requires, strictly, the paternal grandparents to supervise [Mr B]’s time with [Susan] it is intended that they be present in a loose sense during that time. There may be room for misinterpretation of this particular order. However, the order that [Susan] be collected by the paternal grandparents is not ambiguous. There is no provision for anyone else to collect in the event the grandparents are unavailable.
137On this basis I do not find the contravention proved. However, the attitude of [Ms F] is rigid, unhelpful and not in the best interests of [Susan]. Some compromise was appropriate so that [Susan] got to spend time with her father. This was not forthcoming.
•20 April 2007
138This contravention relates to the collection of [Susan] from the Subway restaurant in [the suburb]. The order states that either or both of [Mr B]’s parents are to do the collection. Obviously the need for third parties to be involved results from the unsatisfactory manner in which [Mr B] and [Ms F] personally behave infront of [Susan] at handovers. In order to avoid that the paternal grandparents were involved. Despite the order, [Mr B] has been present at the shopping centre during the course of handovers although not specifically at the Subway restaurant. It has been obvious to [Ms F] and her family that he has been in the vicinity. Although [Mr B] led the Court to believe he maintained his distance, it was completely inappropriate for him to be anywhere near the handover point. He should have stayed at home.
139I have previously made comment about how inflammatory it has been to the [F] family to have the [B] family take shortcuts right past their house during the course of hotly contested Family Court proceedings. [Mr B]’s behaviour in attending at handovers is akin to the earlier documented behaviour. It is simply asking for trouble.
140However, as is always the case in this matter, [Ms F] dealt with it in an inappropriate manner. On 20 April 2007 aware that [Mr B] was likely to be in the vicinity she marshalled her supporters and I accept, at some stage, sought to either video or photograph [Mr B]. This appears to have happened at least in the course of her driving the motor vehicle with [Susan] in it. Her mother was also present as was another child. Understandably, [Susan] was distressed.
141I find it unnecessary to go into any more detail. The incident escalated and the Police were involved. [Ms F] deposes:
“324. I asked [Susan] twice in front of the Police if she wanted to go. [Susan] shook her head and said no. [Mr L] told me it was not up to [Susan] it was up to me. I explained that my daughter had gone through enough trauma today. I was not subjecting her to anymore.”
142Again, the whole situation arose as a result of the bitter conflict between the parties. [Susan] did not spend time with her father that weekend. [Mr B] must take some responsibility given his actions in attending even in the vicinity of the handover point. In view of the history of handovers it was unwise in the extreme.
143I am not satisfied that the contravention has been proved. [Ms F] has explained that in her view of the orders [Mr B] was not to be around during handover. I find the fact he was there, given the background, provides a reasonable excuse for [Ms F].
144Again, although I am not satisfied the contravention has been proved the behaviour of the maternal family causes the Court concern. The reaction of [Ms F] and her mother was out of all proportion to the situation.
•1 June 2007
145The orders made by Tolcon J on 6 April 2005 in Order 15 saw the parties consenting to an injunction that restrained them from denigrating each other in [Susan]’s hearing. The detail in relation to this contravention is somewhat convoluted. It relates to [Susan] being delivered to [Mr B] later than 5.00 pm on Friday 1 June 2007 and it also relates to what is alleged to be denigration of [Mr B] by [Ms F] to the Mother Hen handover supervisor, [Ms C].
146There is no direct evidence in relation to any denigration. [Ms C] attended to give evidence and had provided a report for the Court. However, she gave no evidence about this aspect and was asked no questions about the alleged denigration.
147[Mr B] deposes that he is “convinced” that [Ms F] has made derogatory statements to “[Susan]’s school and to other parents who attend the school”.
148The evidence in support of these issues was unsatisfactory.
149Although [Susan] did arrive late on the 1 June 2007 not only had the supervisor been late to collect her but there was difficulty in having her attend. She did however attend for the weekend. In relation to the denigration although the Court has a suspicion [Ms F] is keen to have her point of view known to all persons, I was not satisfied on the evidence that the allegations in the contravention had been proved.
Child Support
150The mother’s application for child support seeks orders in relation to the payment of school fees for [Susan] at her present school. She seeks payment of half of all the costs and expenses that she has incurred in 2007 and a further payment of all anticipated costs and expenses for years one to twelve inclusive, commencing in 2008. She does not wish such payment to be credited against any liability [Mr B] has pursuant to an administrative assessment.
151At the end of the evidence counsel for [Ms F] appeared to simply be pursuing half of all the anticipated costs and expenses for the present and future. In any event there was no evidence to support an order [Mr B] reimburse [Ms F] for the 2007 fees.
152[Mr B] was cross-examined about his ability to make payment. His reasons for non-payment centred on his lack of say in her schooling rather than an inability in a financial sense to contribute.
153[Mr B] lives at home with his parents. He does have outstanding debts but I am not satisfied that they take any priority over [Susan]’s schooling. In all the circumstances I intend to make an order that [Mr B] contribute half the costs of [Susan]’s school fees. This is not to include uniforms, shoes, camps, excursions and school books, but simply the school fees. The evidence about his financial situation was not such any further order be made.
Conclusions
154[Mr B] has sought an order that the parties have equal shared care of [Susan]. The evidence shows conflicted parenting. Each adopts a very different approach and direction. There are fundamental differences between [Mr B] and [Ms F] and they, to date, have not even been able to resolve minor issues.
155[Mr B] adopts a view that they could simply just start to talk to each other and agreement would follow. This is not realistic at this stage. I am of the view that it is in [Susan]’s best interest to spend her time predominantly in one household with significant and substantial time spent in the other household.
156At this stage it is my view that [Ms F] should remain the primary caregiver for [Susan].
157I say this because she has a very strong bond with her mother. [Ms F] has provided a very high standard of care for [Susan] and on a number of levels this is paying dividends. She will remain predominantly in the household with her brother [Sean]. She will be well placed to take advantage of opportunities to explore her Aboriginality.
158The one area of grave concern is the attitude of the wider maternal household. In particular, [Mr R] and [Mrs F]. Both indicated that they would take a back step and “keep their mouths closed”. This seems to me essential if [Susan] is to remain within that household for most of the week. However, given the intensity of their negative attitudes I intend to monitor the matter closely in that regard.
159[Mr B] correctly stated that [Susan] has grown up in the Family Court. Unless the parties both change, she will spend her entire childhood in the Family Court.
160To begin with it is appropriate that [Mr B] have four days a fortnight with [Susan]. If appropriate recommendations are followed and the orders complied with, there appears to be no reason why this cannot be extended at a later stage. The matter needs to be assessed at that time to ensure that [Susan]’s needs are met in the circumstances prevailing then.
Orders
161The orders I intend to make subject to any submissions are:
1.All previous parenting orders be discharged.
2.The child, [Susan], born [in] August 2001 live with the applicant mother.
3.The applicant mother have sole parental responsibility for the child, save and except that each parent be at liberty to organise one weekend extracurricular activity for [Susan] with both parties to ensure that while [Susan] is in their care, she attends her sporting commitments and any other extra curricular activities whether arranged by that parent or the other, and both parents are to keep the other parent informed at all times of arrangements in relation to her sporting commitments and extra curricular activities.
3.1In the event the parties cannot reach agreement in relation to order no.3 of these orders the parties are to consult with a Family Court Consultant for assistance or be at liberty to re-list the matter before Her Honour Justice Crisford.
Until further order:
4.The respondent father spend time with the child as follows:
4.1each alternate week from after school Friday to the commencement of school Tuesday;
4.2for one half of the term school holidays, to commence at 5.00 pm Friday of the last week of school until 6.00 pm on the middle Saturday of the holidays or as otherwise agreed by the parties;
4.3until [Susan] reaches eight years of age, in the Christmas/January school holidays for 24 days to be exercised in three blocks of eight days at a time; and thereafter for 28 days to be exercised in two blocks of 14 days on dates and times to be agreed between the parties and in the event this cannot be agreed by the parties, as directly by the independent children’s lawyer after consultation with the parties;
4.4at Christmas 2008 and each alternate year thereafter, from 4.00 pm Christmas Day until 4.00 pm Boxing Day;
4.5at Christmas 2009 and each alternate year thereafter, from 4.30 pm on Christmas Eve until 4.00 pm Christmas Day;
4.6in the event Father’s Day falls on a weekend [Susan] is not in her father’s care, from after school Friday until commencement of school Monday;
4.7in the event Mother’s Day occurs during a weekend [Susan] is in her father’s care, the child be returned to the mother at 5.00 pm Saturday;
4.8during all school holiday periods, the orders set out in 4.1 of these orders are suspended, with the father’s time as set out in 4.1 to commence on the first Friday of each school term;
4.9on any other occasions as agreed between the parties from time to time.
[Susan]’s Birthday
5.In the event [Susan]’s birthday falls on a weekend, then [Susan] is to spend her birthday with the parent whose care she is in on the day it falls, and with the other parent on the other weekend day from 10.00 am until 5.00 pm.
6.In the event [Susan]’s birthday falls on a weekday then she spend from after school until 6.00 pm with the parent who does not ordinarily have care of her on that day.
Handover Arrangements
7.Any handovers which cannot take place at the school are to take place at the Mother Hen Supervision Centre or such other available Supervision Agency and in the event the Supervision Centre or Agency is unavailable, then the handover times be adjusted to times when the Centre or Agency is available.
Telephone Communication
8.The father be at liberty to initiate telephone contact with [Susan] every Wednesday between 6.30 pm and 7.00 pm, with the mother to facilitate the call.
9.In the event [Susan] is not in his care on her birthday, either between 8.00 am and 8.30 am or between 6.30 pm and 7.00 pm on that day, or at such other times as agreed between the parties with the father to initiate and the mother to facilitate such call.
10.In the event [Susan] is not in his care on the father’s birthday, either between 8.30 am and 9.00 am or between 6.30 pm and 7.00 pm on that day or at such other times as agreed between the parties with the father to initiate and the mother to facilitate such call.
11.In the event [Susan] is in the father’s care on the mother’s birthday, the mother be at liberty to initiate telephone contact between 8.30 am and 9.00 am or between 6.30 pm and 7.00 pm on that day or at such other times as agreed between the parties and the father to facilitate such call.
12.In the event [Susan] is in the father’s care on her birthday, the mother be at liberty to initiate telephone contact between 8.30 am and 9.00 am or between 6.30 pm and 7.00 pm on that day or at such other times as agreed between the parties and the father to facilitate such call.
13.[Susan] be at liberty to telephone the parent with whom she is not living according to her wishes.
Specific Issues
14.Both parties to ensure the other party is kept informed of their current contact details, including home address, landline and mobile telephone numbers.
15.Both parties shall keep the other promptly and adequately informed of any serious medical conditions incurred by [Susan] while in their respective care, including but not limited to significant illnesses, medical treatment and hospitalisation.
16.Both parties be restrained by injunction from denigrating or allowing any other person to denigrate the other parent in the presence or within earshot of [Susan].
17.Both parties be restrained by injunction from questioning or allowing any other person to question the child in relation to her time at the other parent’s house.
18.The father be at liberty to attend [Susan]’s school to participate in school events to which parents are normally invited, including participating in the parent roster, assemblies, sports day and any other school function.
19.Any communication between the parents in relation to [Susan]’s welfare or any other issue in relation to [Susan], to be either in writing, in the communication book or, in the event that the matter is urgent, by telephone.
20.The mother to forthwith attend the “Mums & Dads Forever” program conducted by Anglicare or similar program conducted by Relationships Australia and the mother is to inform the independent children’s lawyer of her enrolment in the programme and the date that it commences.
21.As soon as practicable the father attend a parenting course such as the “Respectful and Practical Parenting” program conducted by Relationships Australia.
22.The mother to attend for counselling with a clinical psychologist to be agreed to by the independent children’s lawyer, in order to address issues in relation to her attitudes toward the father and to assist her to promote [Susan]’s relationship with the father.
23.The independent children’s lawyer be at liberty to provide any counsellor working with the parties and/or the child with copies of the single expert reports and a copy of Her Honour’s judgement in this matter.
24.The parties to ensure that [Susan] continue to attend [Ms A] for regular counselling, with the parties to do all things necessary to make [Susan] available as requested by [Ms A], with the costs for [Susan]’s counselling to be shared equally between the parties.
25.[Susan]’s counselling with [Ms A] to be unreportable unless specifically requested by the independent children’s lawyer or by court order.
26.The matter be reviewed in six months time by the single expert in relation to how the arrangements are working for the child, and whether there has been an improvement in the attitude of the parents toward each other.
27.The matter be otherwise adjourned generally with liberty to the parties and the independent children’s lawyer to re-list the matter before Her Honour Justice Crisford after the single expert has completed the review in relation to the implementation of these orders.
Child Support
28.The Respondent, pursuant to s 124 of the Child Support (Assessment) Act 1989, pay one half of all tuition fees in relation to the attendance of [Susan] at [the private] school, such fees to be paid direct to the school.
29.The said tuition fees, pursuant to s 125 of the Child Support (Assessment) Act 1989, are not to be credited against any liability of the Respondent pursuant to any administrative assessment.
Contraventions
30.The contravention applications filed by the Respondent on 23 April 2007 (2) and 7 August 2007 be dismissed.
I certify that the preceding [161] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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