FINCH & SHIBO

FAMILY COURT OF AUSTRALIA

FINCH & SHIBO

[2015] FamCA 690

FAMILY LAW – PARENTING – Best Interests – Where final parenting orders were made by consent in 2011 – Where an Order was made in 2013 restraining the father from commencing proceedings in relation to the child without leave of the Court pursuant to s 118 – Where the father made repeated applications to vary the existing Orders – Where the father was eventually granted leave to seek a variation of the Order in respect to the issues of handover locations, telephone communication between the father and child and whether the mother should be permitted to continue to travel to Cambodia with the child – Where the mother filed a response seeking sole parental responsibility – Where there are concerns about the father’s mental health – Order that the mother have sole parental responsibility – Order that the child live with the mother and spend time with the father each school holidays – Order that there is no restraint on the mother travelling internationally with the child.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Finch

RESPONDENT:

Ms Shibo

INDEPENDENT CHILDREN’S LAWYER:

Bruce Scott

FILE NUMBER:

BRC

2788

2009

DATE DELIVERED:

21 August 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

13 and 14 August 2015

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Slade-Jones of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Parker Family Law

Orders

That all previous parenting Orders in respect of the child, K born … 2007, (“the child”) are discharged.
That the child shall live with the mother.
That the mother shall have sole parental responsibility for the child, subject to a requirement that when she makes a decision in respect of “major long-term issues” in relation to the child as that term is defined in s 4 of the Family Law Act 1975 (Cth) she shall inform the father in writing of the decision she has made.
That the child shall spend time with the father during Queensland State School holidays as follows:
(i)In the September – October school holidays, from 10:00 am on the first Thursday of the holidays until 3:00 pm on the immediately following Monday (a total of four nights);
(ii)In the Summer school holidays, from 10:00 am on the first Thursday in January until 3:00 pm on the immediately following Monday (four nights) and again from 10:00 am on the third Thursday in January until 3:00 pm on the immediately following Monday (four nights);
(iii)In the Easter school holidays, from 3:00 pm on the first Thursday of the holidays until 3:00 pm on the immediately following Monday, whether that be over the Easter festive days or not (a total of four nights);
(iv)In the June-July school holidays from 10:00 am on the first Thursday of the holidays until 3:00 pm on the immediately following Monday (four nights).
That for the purposes of the child spending time with the father in the school holidays as provided for in paragraph (4) hereof:
(i)the mother shall have the child ready for collection by the father at the vacation care service at the Sunshine Coast Suburb M School, Queensland and shall collect her from there at the end of the time after the father has returned her to that place;
(ii)the father, by himself or accompanied by his wife or any other third person of his choice, shall collect the child at the start of the time from the vacation care service at the Suburb M State School, Suburb M, Queensland and shall return her to that same place at the end of the time; and
(iii)should the father fail to collect the child within 30 minutes from the start of the time, the mother may collect the child and take her home again without any obligation to hand the child over to the father again to spend time with him before the start of the next visit scheduled pursuant to paragraph (4) hereof;
(iv)should the father fail to collect the child for two consecutive visits pursuant to paragraph (4) hereof, the mother shall be at liberty to relist this matter on notice to the father for the purposes of seeking a discharge of paragraph (4) hereof; and
(v)should the father fail to return the child to the vacation care service at the Suburb M State School, Suburb M at the end of any of the time provided for in paragraph (4) hereof, the mother shall be at liberty to relist this matter on notice to the father for the purposes of seeking a Recovery Order and also a discharge of paragraph (4) hereof;
(vi)the mother shall pay any costs of the vacation care service at the Suburb M State School, Suburb M incurred in giving effect to this Order.
That the mother shall ensure the mobile telephone provided for the child by the father is switched on and appropriately charged and is with the child each Wednesday and Sunday evening between 6:15 pm and 6.45 pm Queensland local time, unless the child is in the father’s care at the time.
That the father may telephone the child on the mobile telephone number for the phone he has provided to her once between 6:15 pm and 6:45 pm Queensland local time each Sunday and Wednesday evening and speak with her as long as the child will speak with him between those times.
That the mother shall ensure the child answers the phone and speaks to the father when he calls pursuant to paragraph (7) hereof and she shall use her best endeavours to give the child privacy in a quiet location during her conversations with the father and should the child miss taking the call from the father on either the Wednesday or Sunday night for any reason, the mother shall ensure that the child calls the father back and speaks to him as soon as practicable thereafter.
That neither parent shall record any telephone conversation between the father and the child.
That the mother shall not let any third person use the mobile telephone that the father has provided for the child’s communication with him for any reason.
That the father may also call the child on the mobile telephone number for the phone he has provided to her and the mother shall facilitate a telephone call from the father to the child on the phone provided by the father, on the following special occasions if she is not spending any time with the father on this day:
(a)Father's Day between 9.00 am and 9.30 am Queensland local time;
(b)Christmas Day between 9.00 am and 9.30 am Queensland local time;
(c)the child's birthday between 9.00 am and 9.30 am Queensland local time;
(d)Easter Sunday between 9.00 am and 9.30 am Queensland local time.
That neither parent shall discuss adult issues with the child, including but not limited to these proceedings, and the father shall not question the child about her life in the mother’s home.
That neither parent shall denigrate the other parent, or the other parent’s friends or family in the presence or hearing of the child, and each parent shall immediately remove the child from the presence of any person who does so.
That the mother may communicate with the father at her discretion by writing letters to him at his place of residence or by speaking with him on the child’s phone at the beginning or end of the Wednesday and Sunday evening calls between the father and the child, but the father shall not directly communicate with the mother unless she requests and permits such communication.
The father shall inform the mother of any change in his residential address as soon as practicable after he is aware of any such change happening.
That should the father have to communicate with the mother in the event of an emergency with the child when she is with him or to advise her of a change in his residential address as required by paragraph (15) hereof then such communication shall be initiated indirectly through the father’s current wife and the father shall not directly speak with the mother unless she permits such communication.
That, subject to the provisions of this parenting Order, there is no restraint on the mother travelling out of the Commonwealth of Australia with the child for the purposes of overseas holidays.
That should the mother intend to travel with the child outside Australia she shall give the father four weeks’ notice in writing of her intentions, including details as to her expected departure and return dates and details of her planned itinerary, including details of her return flight booking and all ports of embarkation and disembarkation and the addresses of all the places where the child will be staying whilst away.
That if it has not already happened, the Australian Federal Police are requested to remove the name of the child, K born … 2007 (female), from the Family Law Watch List.
That if the child is overseas, the mother shall facilitate a telephone call or SMS message from the child to the father's mobile telephone, on one occasion per week, whilst the child is overseas.
That the father is restrained and an injunction hereby issues, restraining him from approaching the mother's residence or communicating with the mother in any way, save as otherwise provided for in this parenting Order.
That the Independent Children's Lawyer is discharged.
That Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch and Shibo 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 BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Finch

Applicant

And

Ms Shibo

Respondent

REASONS FOR JUDGMENT

On 22 November 2011, during a trial of competing parenting Orders applications, the mother and the father of K, born in 2007, and the Independent Children’s Lawyer (each of whom was represented by counsel at that trial) presented written Terms of Settlement to me and invited me to make a final parenting Order in those terms with their consent. I did that.

That parenting Order was relatively comprehensive and detailed, but, in summary, it provided for the parents to share equally parental responsibility for the child, for the child to live with the mother, and for the child to spend alternate weekends with the father. The father was to collect the child from her Childcare Centre at a place on the Sunshine Coast and the mother was to collect her at the end of the weekend from the C Contact Centre on the Suburb B peninsula. These arrangements were made so that the parents of the child did not come into direct face to face contact with each other. I was satisfied then such direct contact was not in the child’s best interests. Relevantly, I remain so satisfied.

Within months of the making of that Order, problems emerged and the father filed a fresh application seeking variation of that parenting Order. In particular, he wanted to change the place of handover of the child between the parents to a roadhouse on the P Highway close to midway between the places of residence of each party. The father’s case, insofar as it could be discerned from his material, was that he had physical and mental health difficulties that interfered with his ability to drive to the Sunshine Coast, but that he could, albeit with some difficulty, drive to the roadhouse at around the half way point.

One difficulty that confronted the father then was that medical evidence he presented pre-dated his consent to the parenting Order given in November 2011. In any event, on 7 March 2013, I dismissed the father’s application and made an Order pursuant to s 118(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) restraining the father from commencing any proceedings seeking orders pursuant to Part VII of the Act in respect of the child in any court without first obtaining the leave of a court having jurisdiction under the Act. I gave my reasons for judgment at the same time.

The father then made repeated applications to the Court over a lengthy period of time seeking the Court’s leave to commence further proceedings against the mother for a variation of the existing Order. Eventually, after considerable effort made by the Registrars of the Court, the father, and me, I granted him leave to file and serve on the mother a fresh application for variation of the Order. That application was limited, by my ruling, to three particular areas of concern to the father.

Those three areas of concern were:
(1)the location of handovers of the child between the parents at the commencement and conclusion of the child’s time with the father;
(2)the father’s telephone communication with the child; and
(3)whether the mother should continue to be permitted to travel with the child to her country of origin, Cambodia, as she had been pursuant to the 2011 Order made by consent.
The mother filed a Response in which the only change she sought to the 2011 parenting Order was for the equal shared parental responsibility order to be discharged and replaced with an order conferring parental responsibility solely on her.

On 28 October 2014, I heard the father’s application for an interim variation to the parenting Order. I made an interim parenting Order varying the existing Order by providing for the child to spend each alternate weekend with the father and for the father to collect the child each Friday after school from her school on the Sunshine Coast and for him to return her to that school on the following Monday morning. I also varied the Order by providing for the child to be able to communicate with the father by phone call each Wednesday evening and each Sunday evening that she was not in his care. I refused to restrain the mother from taking the child to Cambodia for holiday visits.

The matter proceeded to a final hearing of the contested applications. A Registrar ordered the appointment of an Independent Children’s Lawyer and the matter was readied for trial. The ICL obtained a report prepared by psychiatrist, Dr Q, who interviewed both parents. That report was adduced into evidence. The trial took place before me on Thursday and Friday the 13^th and 14^th of August, 2015. Both parents appeared without legal representation, but the ICL appeared represented by counsel. The father and the mother were each cross-examined by counsel for the ICL and the other parent. Dr Q was cross-examined by all three parties and I directed that the ICL call the father’s current wife to give evidence and be cross-examined, as the father had not filed an affidavit by her and I considered her an important witness.

The Issues

The issues for determination by the Court remained:
(a)whether equal shared parental responsibility should be varied to sole parental responsibility;
(b)whether the provision of alternate weekends with the father for the child should remain as part of the parenting Order and, if so, where the child should be collected from by the father and where the child should be returned to the mother at the end of that time;
(c)just how telephone communication between the child and the father should take place; and
(d)whether the mother should have any restrictions placed on her ability to travel to Cambodia with the child for holidays.
The father, unhappy with my restriction of the trial to the determination of those disputes, tried, unsuccessfully, to get me to reconsider the question of the child’s placement in her mother’s principal care. I was not persuaded of any need to reopen the question of her day to day care, particularly having regard to the report of Dr Q which I will refer to.

The father also asked me to discharge the ICL at the start of the trial. I immediately dismissed that application as it was not made on any notice at all to the mother or to the ICL himself. In the circumstances of this case, where both parents were without legal representation, that there was an ICL in the matter, with counsel instructed to appear, was considered by me to be of assistance to the Court. The father elucidated no sound basis for the ICL’s disqualification, in any event. I informed him that I was not entertaining his application and the trial commenced.

Dr Q’s Report

Although the father’s love of his daughter is beyond dispute, the father’s mental and emotional health has been an issue in the proceedings for as long as the matter has been before the Court. The father has maintained that his mental health is such that he is unable to drive a car from Suburb B to the Sunshine Coast and return. He asserts he has agoraphobia. In addition, the father’s presentation and behaviour has itself always been a cause for concern about the state of his mental health. He is usually always loud, argumentative, obstreperous and disrespectful when he appears in Court. He demonstrates a complete lack of insight as to how his behaviour actually impacts upon his interests. For these reasons, the evidence of Dr Q was of great assistance.

Dr Q interviewed the father on 27 May 2015. The father told the doctor he has Bipolar Affective Disorder, PTSD and agoraphobia. The doctor reported the father told him that he suffers panic attacks at least once each week and that he gets them “pretty bad”. The father also told him that he is “currently seeing a psychiatrist … every six weeks for a few years”. It is that doctor, the father asserted, who had diagnosed him with PSTD, agoraphobia and Bipolar Affective Disorder. The father adduced no evidence from that doctor. Importantly, the father was reported to have said that he has been prescribed certain medication but that he does not take it, but rather takes Valium and alcohol. He is reported to have said that he drinks about three to four stubbies of beer per day.

Dr Q’s provisional diagnosis (undertaken after interviewing the father and not having read any of the material provided to him by the ICL) raised concerns about the fact that the father was taking Valium and alcohol for the management of his Bipolar Affective Disorder. The doctor said that “would be less than ideal and in fact may be worsening the underlying condition”.

After interviewing the mother, Dr Q’s provisional assessment was that there was no evidence of any major mental illness or psychosis, and no symptoms or signs consistent with a major mood disorder. The doctor expressed the opinion that the fact the mother remained in a relationship with the father, such as the abusive relationship she described, suggests some personality vulnerabilities. Having seen the mother in Court several times now, I accept that opinion is correct and that she does have a vulnerable personality.

After reading all of the material he had been provided with, Dr Q acknowledged that the diagnostic issues with respect to the father are complex. The doctor expressed the view that the father has a paranoid stance towards the mother, the Court and others that appears to have arisen more from his underlying character pathology rather than being evidence of any underlying psychotic illness. Dr Q said that he could not fully exclude the presence of a delusional disorder. He did not consider the father to have an underlying psychotic illness such as Schizophrenia though.

Doctor Q did not consider the alleged diagnoses by other psychiatrists of Bipolar Affective Disorder as unreasonable, but he highlighted the view that a diagnosis is made more difficult by the father’s personality structure. The doctor observed that the father’s hypomanic presentation, whilst consistent with an untreated bipolar illness, might simply be a function of his personality structure rather than an underlying bipolar illness. He said that only clear evidence of the father presenting in a more depressed state would firm up the bipolar diagnosis. The doctor did not see that evidence in the material he read and I have to say that I have not seen the father in anything other than what the doctor described as a “hypomanic” state whenever he has appeared before me.

Doctor Q reiterated his concern for the fact that the father is not currently under treatment that would be considered appropriate for a diagnosis of Bipolar Affective Disorder if it is that he has such an illness. He referred to particular medication that he should be on with that diagnosis. The doctor expressed his concern about the effects on the child of an untreated bipolar illness in the father, with its associated mood instability. He observed though, that there had been no allegations that the child had been physically harmed in the care of the father although there are allegations by the mother that the child has been exposed to inappropriate displays of emotion whilst in the father’s care.

Dr Q also noted the father had been previously diagnosed with PTSD as well as anxiety and agoraphobia. He opined that features described by the father would be consistent with PTSD. He also opined that the father’s description of panic symptoms would also be consistent with a panic (anxiety) disorder and that the father’s descriptions of the symptoms he experiences, if accepted as true, appropriately attract a diagnosis of agoraphobia. He went on to say that the father has clear Cluster B personality traits (eg narcissism, antisocial personality) as well as paranoid traits. He pointed out the father’s obvious difficulties in appropriately managing his emotions within his intimate relationships and his relationships with professional third parties and said that it is unclear if this is solely attributable to the father’s personality or rather is a consequence of an untreated Bipolar Affective Disorder.

As to the mother, Doctor Q referred to her description of having ongoing issues with anxiety, but acknowledged that being involved in the Court process and the high emotional conflict with the father contributes to this. He commented favourably though on her apparent ability to achieve some stability in her life by engaging in study and in employment, and suggested this reflects considerable improvement in her emotional capacities.

Doctor Q strongly recommended that the father continue to seek regular contact with his treating psychiatrist and stick to the medication regime as prescribed by that psychiatrist and expressed concerns for the wellbeing of the child if the father continues to have an untreated bipolar illness and exposes the child to heightened emotional instability and lack of emotional control. The doctor also recommended the father would benefit from engagement with a psychologist for some therapy to address his “high degree of emotional valence towards the mother and the Court which appears to have done the father a major disservice in seeking a relationship with the child”. The doctor also suggested an anger management course be undertaken by the father.

Doctor Q said:
If the father was engaged with a suitably qualified psychiatrist and was adhering to medications as prescribed and was showing significant stability in his mental state as well as within his emotions more generally and was able to protect [the child] from his own negative views with respect to the mother and was not exposing [the child] to domestic violence, physical or otherwise within his current relationship or with others, I would have no concern [the child] would be at risk of significant harm in the care of the father.

The doctor also recommended that the Court continue to minimise the ability of the father to contact the mother, either face to face or via electronic means, and that all communications between the parties should occur between a third party as ongoing contact between the parties is likely to cause considerable distress to the mother (unless the father’s behaviour towards the mother improves).

The doctor also said that there would be considerable scope for improvement in the father’s symptoms of agoraphobia with appropriate pharmacological and psychological therapy and that this would improve his functioning and, therefore, his ability to drive distances.

Importantly, in his oral evidence, Dr Q expressed the opinion (that I consider he was clearly leaning towards in his written report) that the father’s presentation was not really consistent with him having Bipolar Affective Disorder and that whilst he had some concerns about the complexity of the issues pertaining to the father’s mental state, he ultimately had no significant fear that the father would be a cause of physical or emotional harm to the child

The Principles by which the Issues are to be decided

Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), when determining parenting Orders disputes, this Court is to make such parenting orders as the Court thinks “proper”, and, in so doing, must regard the best interests of the subject child as the paramount consideration.
In determining what is in a particular child’s best interests the Court must consider an extensive list of matters.[1] Those matters include, listed as “primary considerations”, the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm. The “best interests” inquiry may be broad as the list of matters that must be considered includes “any other fact or circumstance that the court thinks is relevant”.
[1] That list is set out in s 60CC of the Act
Determining what is a “proper” parenting order to make is also subject to the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child, unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2] Even if there are no such reasonable grounds, the Court may still make a different parental responsibility order if persuaded, on the evidence, the presumption should not apply.
[2] Section 61DA(1) and s 61DA(2) of the Act
“Parental responsibility” is defined in s 61B of the Act. It means, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. It matters most, at least in my judgment, when decisions are to be made about what are defined in the Act as “major long-term issues” in relation to a child. That term is defined in s 4 to mean “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 the child’s education (eg what school she goes to), the child’s religious and cultural upbringing (eg should she be brought up as a Christian or without taught adherence to a particular faith), the child’s health (eg should she have elective surgery to have her tonsils removed or not), and the child’s name.
If a parenting order is made conferring parental responsibility in respect of a child equally on that child’s parents, there are a number of relevant consequences. Firstly, insofar as the further determination of the proper parenting order is concerned, the Court must consider whether the child spending equal time with each of the parents is reasonably practicable and also whether such an arrangement would be in the best interests of the child. Whether it is “reasonably practicable” is to be determined by reference to matters set out in s 65DAA(5) of the Act and whether it would be in the best interests of the child is to be determined by reference to the matters already referred to. If, after those considerations, an order for the child to spend equal time with each of the parents is not made, the same two pronged consideration must be given to arrangements that provide for the child to spend substantial and significant time with each of the parents. The term “substantial and significant time” is also explained in s 65DAA(3).
Another consequence of a conferral, by order, of equal shared parental responsibility is the mandatory requirement, imposed by s 65DAC of the Act, when a decision about a major long-term issue in relation to the child is to be made, for each of the parents to consult the other in relation to the decision and to make a genuine effort to come to a joint decision. The provision goes further though. The decision is actually required to be made jointly by the persons who share parental responsibility. The statutory provision does not provide an alternative or fall-back position. Accordingly, as I have said many times before, in my judgment, if the decision is not made jointly it cannot be made at all, thus requiring parties to go back to family dispute resolution processes and, if that fails, to the courts for a decision to be made. This is indeed, in my view, relevant to consider when determining whether the conferral of parental responsibility on two persons is in the relevant child’s best interests.

Parental Responsibility in this Case

The mother deposed in her affidavit evidence to suffering anxiety as a consequence of the father’s behaviour. I accept that the mother’s personality is such that she struggles to deal with the father’s behaviour and that having to deal with him on an ongoing basis could readily compromise her parenting capacity. Doctor Q’s opinions support such a finding.
I am readily satisfied in this case that the presumption that it is in a child’s best interests for her parents to have equal shared parental responsibility is displaced by the evidence. I do not consider it is in the child’s best interests to put in place an Order that obliges her mother to have to negotiate and agree upon decisions about major long-term issues in respect of the child with the father. That would just be a disaster for the child, in my judgment. There is no evidence that the equal shared parental responsibility Order has been of any benefit to the child in the past. The mother said that she would write to the father and tell him of decisions she makes in the child’s life such as relating to her health, her schooling and any overseas travel. In fact, she indicated that she would seek an Order to that effect. I will make such an Order in conjunction with a sole parental responsibility Order in favour of the mother.

The Child’s time with the Father

Significantly, it was agreed between the parents that the father had not travelled to the Sunshine Coast and collected the child for a weekend in his care during school term on any occasion since the October 2014 Order providing for him to do that was made. Of note, the father unfailingly blamed me for that and accepted no personal responsibility at all.
However, although the October 2014 Order did not provide for the child to spend holiday time with the father, the mother and father agreed that the child had spent a total of twenty days with the father just this year in two separate blocks of time within the January school holidays and the Easter school holidays.
The father agreed in his oral evidence that the holiday time he has spent with the child coupled with the telephone conversations he has with her each week has enabled him to maintain a meaningful relationship with her. However, during the trial he steadfastly maintained the position that he wanted to have her with him each second weekend. He was insistent that this was dependent upon the mother bringing the child to his home or to a roadhouse on the P Highway just north of Brisbane at the start of such weekends and collecting her from him at the end of such weekends. He maintained this position despite asserting that agoraphobia prevented him from driving far on his own and in the face of all the concerns about the problems with a regime that brings him and the mother into face to face contact. There was an extraordinary stubbornness on the father’s part, coupled with an apparent determination to have a regime where he and the mother did still come into contact with each other.
Oddly though, having regard to the father’s stated position, the father asserted during his evidence that he was now working as a prospector and that this work would likely take him out of Brisbane into remote areas for weeks on end, sometimes potentially for a month to two months. This expressed intention was completely inconsistent with a desire to continue to have the child spend each second weekend in his care.
In her evidence, the mother said that the father only saw his children of his first marriage, after separation from their mother, during school holidays. They are all adults now. The mother relied on this fact, and the fact that the father has only had the child with him this year during two school holiday periods, as the basis for her opinion that seeing the child in school holidays suits the father best and that he does not really want to see her on weekends during term.
Despite that, the mother told the Court that she continued to support the child spending weekends with the father during school term. Initially, she indicated a willingness to participate in driving the child to and from a place of handover but only if the father’s current wife was responsible for collecting the child from her and returning her to her at the end of that weekend. However, on the second day of the trial, the mother informed the Court that she had thought about that overnight and, believing that the father could not be trusted to stay away from that handover location, now did not want to drive the child there and collect her from there at the end of such time.
Then, in yet another extraordinary turn of events in this matter, even though the father’s current wife had given evidence that she would be prepared to drive to the proposed roadhouse handover location by herself to collect the child from the mother and return her to the mother at the end of weekends in her father’s care (subject to having difficulties doing that on a Friday afternoon), during his final submissions the father informed the Court that he had changed his position and offered as the solution the proposal that he only have the child spend time with him during school holidays as opposed to weekend time during school term. That truly appeared consistent with what the mother had said was what she believed he really wanted, especially coming as it did after the ICL had submitted that the child should spend alternate weekends with the father.
Considering the evidence of the father’s extreme difficulties in driving, the mother’s strident distrust of the father and absolute determination not to have to come into contact with him, the father’s current wife’s difficulties in being able to provide assistance in the driving on a Friday afternoon, the father’s concession that his relationship with the child is a good one despite there having been no mid-term weekend contact at any time this year and the father’s ultimate concession on the point, in addition to the evidence of Dr Q, I am satisfied that the proper parenting Order in this case need only provide for the child to spend some time with the father during her school holidays and that school term weekend visits should be foregone.
In respect of school holiday time, the mother told the Court that she had felt pressured by the father into agreeing to that holiday time that the child had spent with him this year. I have some understanding of her position, but nevertheless she let the child go to spend up to twenty days with the father when she could have legitimately relied on the fact that there is no provision for holiday visits in the existing parenting Order. Although the mother also told the Court that the child was not happy going on holidays to her father’s place and that when she came home she was out of sorts and misbehaved for a time, the fact that the mother still let her go, particularly on the second occasion, fortifies me in my finding that the mother herself must consider that the child should spend some time with her father despite what she says about it. Indeed, in her affidavit she still said “two to three nights per fortnight work fine for the child” and in her oral evidence and submissions she said that any holiday time that the child spends with her father should be limited to a couple of days and nights at a time, rather than saying that she should not go and spend any time with him at all.
The father robustly submitted at the end of the trial that the child should spend all of the school holidays with him. I do not accept that is in her best interests. Having considered the evidence, particularly the evidence of Dr Q, I remain concerned about the father’s capacity and commitment to continue to properly engage with his psychiatrist, to appropriately maintain a prescribed medication regime and to take up therapy with a psychologist, and therefore, I am not inclined to make an Order that the child spends a lot of time in the holidays with her father.
Whilst the evidence of the father’s current wife gives me cause to accept that the father is not being abusive to her, her evidence that there are arguments between the father and her 15 year old son provides support for the mother’s evidence that the child tells her of arguments in the father’s household. The mother’s evidence that the child reports to her that the father still denigrates the mother to her is also concerning. The likely truth of that gains support from the father’s admissions that he taped a telephone conversation with the child in clear contravention of an existing order that he not do that and that he had also asked the child if her mother was still hitting her.
Ultimately, I am persuaded to the view that the child spending a few days at a time with her father in each of the school holidays is the proper order to make. Given that the father’s current wife works and is not around during the day on Mondays, Tuesdays, Thursdays or Fridays, it is best, in my view, to keep the periods the child spends with the father to a limited number of days and best to make those days include weekends during the holidays. I am satisfied with the father’s current wife’s evidence that she and the child have a reasonably close and trusting relationship and the child and her sons have reasonably good relationships. I consider that the child’s step-mother will watch out for the child’s wellbeing when she is staying in their home. The father’s wife gave evidence that she goes on holidays to the Philippines, her own country of origin, for four weeks each December, including over Christmas. Accordingly, the holiday time I provide for in the annual Summer holidays will be in January each year as I consider it best that she is around when the child visits her father’s home.
I am committed to making a parenting Order that provides a buffer between the mother and the father and does not bring them into contact that the mother herself does not initiate. The father has now demonstrated on two occasions this year that he is capable of getting up to the Sunshine Coast and picking the child up with assistance of others, including his current wife and one of his friends. He has done that, by arrangement with the mother, by collecting the child from the vacation care facility at the child’s school and returning her there. By making the Order quite specific as to day and time of collection from the vacation care facility, I consider that the logistics can be appropriately achieved without the need for the parents to have direct communication with each other. That is what my orders will do.
If the father does not get up to the Sunshine Coast to collect the child on the day and time provided for, then the holiday time provided for just will not happen. If he does not return the child to the Sunshine Coast on the day and time provided for, he gives the mother a trigger to come back to this Court to seek a discharge of the Order completely. I do not expect the father would want that to happen.
Given the difficulties the parties have in interpreting detailed Orders and communicating reasonably with each other, I will discharge all previous parenting Orders and make this new one I am going to make the only parenting Order that applies. That will make things easier for the parents in my view. As I said though at the conclusion of the trial, my Order made 7 March 2013 prohibiting the father from commencing any more proceedings pursuant to Part VII of the Act without first obtaining the leave of the Court remains extant and in force and the father is bound by it. To be clear, no application may be brought by the father without first obtaining leave from a Judge of this Court and that Judge ideally, in my view, should be me, unless it is impracticable for it to be me. My Order that the father cease sending emails to my Associate also remains in force.

The parenting Order I will make will restrict communication between the parents such that the mother will only have to speak with or communicate with the father if she initiates such communication herself.

Telephone Communication between the Father and the Child

The 2011 parenting Order, as varied by last year’s interim Order, provides appropriately, in my judgment for telephone communication between the child and the father when she is not spending time in his care. I consider it appropriate to continue that regime by consolidating those into one new final Order.

The Mother’s travel to Cambodia with the Child

In 2011, the father consented to the parenting Order that included provision for the mother to be able to travel with the child to Cambodia, her own country of origin, for holidays with her family and friends. The mother has done that many times, including for a few weeks earlier this year, and has always returned to Australia and brought the child back with her.
Last year, the father changed his position in respect of this issue and sought an order restraining the mother from taking the child with her to Cambodia. He asserted a number of matters of risk to the child that he submitted made the prospect of such travel unacceptable and not in her best interests. On an interim basis, in October last year, I rejected his arguments and continued the Order that permitted the mother to travel with the child to Cambodia.
At the trial last week, the father maintained that the same matters of risk still existed but this time simply sought a restraint against the mother leaving the child in the care of “third parties” whenever she might be in Cambodia. He argued that the child might be subjected to kidnapping for ransom if left in the care of third parties.
Again, I was left far from persuaded by the father that such a restraint is necessary. I am satisfied that the mother is a parent who cares for her child and takes suitable precautions to provide for her safety, be it in Australia or in Cambodia. I will put no restraint in place against the mother in respect of her trips overseas, save for imposing upon her the obligation to give the father notice in writing of her intention to take the child overseas for a holiday and to provide details of her dates of departure and expected return and where she will be staying whilst she is out of Australia. Of course, any trip overseas with the child will need to be scheduled around the time that the child is to spend with the father pursuant to the Orders I make. As I explained to the mother during her oral submissions to the Court, any other Order about this such as a suspension of the father’s time and the provision of make-up time with him would require communication with him by her and she does not desire such communication.
I make the parenting Order set out at the commencement of these written reasons, satisfied it is proper and in the child’s best interests.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 August 2015.

Associate:

Date: 21 August 2015

[2015] FamCA 690

21 August 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies