G and D
[2002] FMCAfam 42
•23 January 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & D | [2002] FMCAfam 42 |
| FAMILY LAW – Children – contact – no risk to the child – application for supervised contact refused – supervised contact would hinder the child’s relationship with her father – section 68F(2) Family Law Act 1975. |
| Applicant: | G S G |
| Respondent: | L A D |
| File No: | ZP353 of 2000 |
| Delivered on: | 23 January 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 16 January 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Ms Susan Davitt |
| Solicitors for the Applicant: | Legal Aid Commission of NSW Level 2, 25 Smart Street FAIRFIELD NSW 2165 DX 25068 FAIRFIELD |
| Solicitor Advocate for the Respondent: | Mr Steven Stojanovic |
| Solicitors for the Respondent: | Stojanovic Solicitors 4/220 Northumberland Street LIVERPOOL NSW 2170 |
ORDERS
That the parties shall have joint responsibility for the long-term care, welfare and development of K B G born 2 October 1995 (“the child”).
That all prior orders for contact are discharged.
That the father shall have contact with the child as follows commencing Saturday, 26 January 2002:
(a)On Saturday 26 January 2002 at Central West Contact Service ("the service") from 3.30pm until 5.30pm. In the event that the service cannot facilitate contact this weekend it shall take place the following Saturday.
(b)After one session of contact at the service each Saturday from 9am to 5pm;
(c)Commencing 9 March 2002 from 9am Saturday until 5pm Sunday each alternate weekend;
(d)Once alternate weekend contact commences Saturday-only contact ceases;
(e)For one half of each New South Wales school holiday, being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
That the first period of school holiday contact shall commence in the June/July 2002 school holidays;
(a)From 5pm on Christmas Eve until 2pm on Christmas Day 2002 and each alternate year thereafter and from 2pm on Christmas Day until 6pm Boxing Day 2003 and each alternate year thereafter;
(b)For the weekend that includes Father’s Day, and
(c)Such other times as agreed between the parties.
That commencing during the June/July 2002 school holiday period alternate weekend contact is suspended during school holidays and for the weekend that includes Mother’s Day.
For the purpose of contact, the mother is to ensure that the child is delivered to the Central West Contact Service no later than 15 minutes prior to the start of contact. The father is to collect the child from the Central West Contact Service at the start of contact.
That at the conclusion of contact the father is to return the child to the mother’s home.
That when returning the child at the conclusion of contact, the father shall not enter the grounds of the mother’s property and shall indicate his arrival by either arranging for another person to take the child in or by tooting the car horn.
After six months of regular weekend contact occurring at his home the father shall advise the mother whether he will agree to a change in the place for changeover at the start of contact. If the contact is proceeding well the father shall not unreasonably with-hold his consent.
If the contact occurs on a date adjacent to a public holiday contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday it shall conclude at the usual time on the Monday. This order is operative after the June/July 2002 school holidays.
School holiday contact:
(a)SHALL commence at 9.00am.
(b)SHALL conclude at 3.00pm.
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
(d)Pupil free days are deemed to be school holidays.
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the Father has exercised contact during the first half of the holidays AND on the second weekend if the Mother has exercised contact during the second half of the holidays.
At the expiration of four months from the date of these orders the parties are to attend a post separation parenting program to facilitate improved communication between them. In the event that they cannot agree which program to attend they shall both forthwith attend Unifam at Parramatta for assessment and advice by the coordinator. Thereafter they shall attend and complete any program nominated by the coordinator.
The party who caused any subpoena to issue shall return the subpoenaed documents within 7 days.
All exhibits to be collected at the expiration of 28 days.
All outstanding applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP353 of 2000
| G S G |
Applicant
And
| L A D |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings have comprised an application for competing parenting orders, in particular orders relating to contact. The proceedings concern the parties’ daughter K B G, who was born
2 October 1995. Throughout these reasons, I will refer to the child as “K”.
The application
The father filed an amended application on 7 January 2002. The proceedings were commenced when he filed his application in the Family Court on 19 May 2000. At the conclusion of the proceedings, the mother, through Mr Stojanovic set out the orders sought by her at trial. These are summarised later in these reasons.
The evidence
The evidence in the proceedings has comprised this:
·the mother's affidavit sworn 10 August 2000;
·the affidavit of B J sworn the same day;
·the affidavit of G G sworn 16 January 2002;
·the affidavits of B J and L D sworn 17 January 2002;
Documents were tendered by the father from the Central West Contact Service, which became exhibits in the proceedings;
All witnesses were cross-examined.
There were two family reports, one dated 10 September 1999 and the other dated 7 January 2002, that became exhibits. Court counsellor Erica Pidcock prepared both reports.
The issues
The issues in the proceedings were essentially these:
·The nature of the child's relationship with her father;
·His capacity to meet her needs during contact;
·Whether contact should continue to be supervised; and
·The mother's attitude to the responsibilities to parenting, in particular promoting a relationship between the child and the father.
The parties are not significantly at issue in relation to many factual matters. The proceedings have helpfully been focused on the issues rather than sidetracked by matters that ultimately could not have been germane to the decision that the court must make.
The relevant facts
Thus the chronology of relevant events, is largely uncontentious.
The mother was born on 11 August 1959 and the father was born on
9 January 1955. They have known one another for a very long time. They commenced cohabitation having re-established contact with each other after running into one another in a doctor's surgery. They commenced cohabitation on 10 January 1994.
K was born some 18 months later on 2 October 1995. When she was eight months old on 16 June 1996, the parties separated.
The mother continued to live in her home and the father moved to live elsewhere. He lived in a hostel-type accommodation at a hotel and later in a serviced bedsit apartment
In June 1996, shortly after separation, the father made a telephone request for contact with K. Because the mother was distraught by the circumstances that led up to the separation she did not agree that contact could take place. It didn’t.
In December 1997, the father made a further request for contact with K. When that was not responded to favourably, in February 1998, he retained a solicitor who wrote to the mother pursuing the father’s contact to his daughter. Although the mother denied that the father made any requests for contact, I am not satisfied, when I look at her evidence as a whole, that I should accept her denials. Undoubtedly the catalyst for the mother's application made to Liverpool Local Court in January or February 1998, in which she sought orders that would deny the father contact to the child, was his increasing insistence that he have contact with K. The proceedings came to nought when, in effect, the mother abandoned the application.
In June 1998, because he had still been unable to secure the mother's cooperation for contact with their daughter, the father made an application to the Family Court at Parramatta. The parties agreed on 11 September 1998, that contact should commence at the Central West Contact Service on a supervised basis. In circumstances where the mother concedes that at no time has the father presented any form of risk to the child, I infer that the agreement for supervision was reached because of the time gap that passed since K had seen her father. Thus it was necessary for K and her father to start to rebuild their relationship.
Contact took place at the Central West Contact Service between
28 October 1998 and 10 April 1999. There were about six periods of contact.
On 17 May 1999, orders were again entered by consent that continued the arrangement for contact at the Central West Contact Service. Those orders were implemented between 3 July 1999 and 18 August 1999.
On 5 October 1999, final orders were entered in the Family Court which provided a stepped program progressing K's contact with her father. Contact continued to be supervised for a time and it was intended that it move to unsupervised contact. Clearly it was intended that the father and the child could enjoy a less constrained relationship. The orders entered on 5 October 1999 were as follows:
1.That the child of the relationship K B G born 2 October 1995 live with the mother.
2.That the parties have the powers, duty, authority and responsibility for the day to day care welfare and development of the child whilst in their care pursuant to these Orders.
3.That within seven (7) days of the date of making of these Orders the Husband shall provide to B J details of his residential address and home telephone number and he shall keep the said B J informed at the earliest practical opportunity of any change.
4.That within seven (7) days of the date of the making of these Orders the Mother shall cause there to be provided to the father the home telephone number of B J and the mother’s residential address and home telephone number.
5.In the event that the father is not able to attend for contact as provided for herein on any occasion he shall telephone B J at the earliest possible opportunity to advise of his inability.
6.The father be and is hereby restrained from telephoning B J at any time except as provided for in 5 above.
7.The father be and is hereby restrained from telephoning the home of the mother save and except for the purposes of advising the mother of any illness or hospitalisation of the child whilst in his care.
8.In the event that B J is not available to supervise contact as provided for in (a) below of any occasion, the mother shall cause the father to be notified at the earliest practical opportunity and the father will be provided with make up contact for all such periods.
9.That the father have contact with the said child as follows:
(a)
from Saturday 16th October 1999 until Saturday
1 January 2000 supervised contact each Saturday from 2.00 pm to 4.00 pm. For the purposes of such contact same shall be supervised by B J and shall occur at the home of B J at 2 L Place, M.
(b)Contact pursuant to (a) shall not occur on Saturday 25th December 1999 and 30th October, 1999.
(c)The father shall have supervised contact with the said child on 31 October 1999 and Boxing Day 26th December 1999 from 2.00 pm to 4.00 pm. Such contact shall be supervised by B J and shall occur at the home of B J at 2 L Place, M.
(d)From Saturday 15th January 2000 until the last Saturday in February 2000 each Saturday from 1.30 pm to 2.00 pm at the home of B J; from 2.00 pm to 4.00 pm on an unsupervised basis and from 4.00pm to 4.30pm supervised contact at the home of B J.
(e)Commencing on Saturday 4th March 2000 and for the month of March each Saturday from 9.00 am to 1.00 pm.
(f)Commencing on Saturday 1st April 2000 and for the month of April, each Saturday from 9.00 am to 2.00 pm.
(g)Commencing on Saturday 6th May 2000 and for the month of May each Saturday from 9.00 am to 3.00 pm.
(h)Commencing on Saturday 3rd June 2000 and for the month of June, each Saturday from 9.00 am to 4.00 pm.
(i)Commencing on Saturday 1st July 2000 each Saturday from 9.00 am to 5.00 pm until the first weekend in February 2001.
(j)Commencing the first weekend in February 2001, each alternate weekend from 9.00 am Saturday until 5.00pm Sunday.
10.For the purposes of contact pursuant to (a) to (I) inclusive the mother shall deliver the child to the home of B J prior to the commencement of each and every contact period and shall collect the child from the home of B J following the conclusion of each and every contact period.
11.For the purposes of contact pursuant to (b) to (j) inclusive the father shall contact the child from the home of B J at the commencement of each and every contact period and return the child to the home of B J at the conclusion of each and every contact period.
AND THE COURT NOTES the material set out in paragraphs 1 to 4 inclusive under the heading “Notations”.
AND THE COURT FURTHER NOTES the undertaking and certificate by MRS B J marked Exhibit “B” as annexed hereto.
2. That documents in the Court’s possession pursuant to subpoenas be returned to proper custody by arrangement with the registry.
3. That these proceedings be removed from the Pending Cases List.
K had her own representative who supported the development of unsupervised contact.
Between 16 October 1999 and 5 May 2000, the father exercised contact at Ms J’s home. He then took K to his home on three occasions. After that the contact stopped. I am satisfied that the contact stopped because the mother, in essence, refused to facilitate it any further. She did not seek relief from a court to the effect that entitled her to interfere with the operation of the orders.
Thus on 19 May 2000, the father made another application to the court seeking new orders, changing the arrangements for drop-off and collection of the child before and after contact. I infer from the structure of the orders sought by him at that time, that he believed there was an impediment in the delivery at contact hand-over, which stood in the way of K being able to comfortably move from her mother's environment into her father's environment. So he sought to change the manner in which the child moved from one home to the other.
For his own reasons, on 8 September 2000, the father consented to interim orders whereby the contact continued to be supervised at the Central West Contact Service. Those orders were implemented. Yet again consent orders were made on 29 January 2001 for supervised contact at the Central West Contact Service. Contact continued on that basis until on 6 October 2001 the family, in effect, ran out of time at the Central West Contact Service. No contact has taken place since that time.
The focus of the proceedings has been K's adjustment, her mother's capacity to cope with contact and the father's capacity to meet the child's needs during contact. At the beginning and the end of the proceedings, the mother affirmed that she does not suggest that the father presents any risk or harm to the child.
The father's circumstances and proposals are these:
The father is a disability pensioner, which disability arises from hip problems. He is currently awaiting surgery. There is no suggestion that his disability affects his capacity to care for K.
He lives in a two-bedroom house rented from the Department of Housing. His home is at 7 D Street M. M is a suburb nearby to L. His tenancy is a secure one and he is likely to continue living at his current address for a long time. Because he has had his home for two years, he has been able to prepare a room for K. She has been there three times during late 1999 and early 2000.
As a child the father was placed by his father in a boys home. As a consequence sadly, he has lost contact with his extended family. He presented as very committed to his relationship with his daughter and as a person who has a lot to offer her, not only in terms of an enjoyable time with him, but also in terms of her developing sense of identity.
He proposes a quickly stepped program for contact, which will lead to overnight contact. In essence, he submits to the court that he has endured supervised contact for a very long time, he believes for no adequate reason associated with the welfare of his daughter. He proposes that contact changeover will take place at Central West Contact Service. He says this is essential, because at the Central West Contact Service there is an important barrier between the mother's home environment and the father. Because of the anxiety that K has from time to time demonstrated as recently, for example, on
25 August 2001, he believes that the neutral environment of the contact service is essential. The availability of skilled supervisors at the service will help K, if she does have any difficulty from time to time, separate from her mother and comfortably move into the father's environment. He agrees that he will pay the fees associated with continuing to use the contact service. His inquiries, corroborated by the court counsellor, satisfy me that the contact service will continue to be available for him both to supervise contact if it is needed in the very short term, but more importantly, provide a contact changeover facility indefinitely.
By June 2002 he proposes that K should be exercising school holiday contact with him.
The mother's circumstances and proposals are these:
Like the father, the mother is a public housing tenant, renting her home at 78 S Road, H from the Department of Housing. She has lived there for the last 15 or 16 years. Prior to cohabitation with the father, she had had three children. V, who is now aged about 25 years, L who is aged about 20 years, and M, who is aged about 18. M lives at home.
The mother has a very close relationship with B and F J. They share a relationship that has developed through their shared religion. B and F J are K's godparents.
A S, an 18 year old friend of the mother's, lives in the mother's home.
The mother is in receipt of Department of Social Security benefit. Her elder children have no relationship with their father and have not done so for many years. The mother's mother died when the mother was young and her own relationship with her father was limited to alternate Saturday contact. She has in the past had serious health difficulties, and at present suffers from asthma and a form of ME. This year, K will resume to school at H Public School, where she will be in Year 1. The mother has previously ensured that K attended pre-school.
The mother considers that it is essential that K and her father continue to have supervised contact at the Central West Contact Service. She has great faith in the capacity of the supervisors at the Central West Contact Service. She then proposes that contact be limited to daytime contact of four hours duration and that it build over a period of about a year of daytime contact before it would become overnight contact. She does not believe that overnight contact should take place before K is about eight years old. In essence, her concern is that K has difficulty separating from her and she believes that K is not yet ready to be alone with her father for any extended period of time. She does not challenge the court counsellor's evidence that K has been able to attend some slumber parties nor that K comfortably attends school during normal school hours without apparent disruption or separation anxiety.
The relevant law
Contact orders are parenting orders. The applicable law is well settled. Proceedings of this type are conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
Determining the child’s best interests
The first subparagraph that I turn to are K's wishes. These, most helpfully, are dealt with in the family report. I accept that the evidence given by the court counsellor in both reports accurately reports on the events that have taken place during counselling, I accept her conclusions and recommendations in both reports. Although during cross-examination by Mr Stojanovic, the counsellor seemed to adopt the suggestion that there should be a further period of about four periods of supervised contact at the contact service, I do not agree that this should occur.
K's wishes are quite confused. The mother's evidence which I accept in this regard, is that she has considerable difficulty getting K ready for contact. When K knows that the mother has started the process of organising K to be collected by the J’s to go to her father, the mother goes through a quite prolonged exercise. K is uncooperative and resists being prepared to go on contact. The mother is increasingly taking a strong hand with her daughter and punishes K, for example, by withholding videos when she believes K has got to the point where her lack of cooperation means that the mother might not be able to meet her obligations pursuant to the orders to facilitate contact.
When Mr J arrives to collect K, an arrangement that the mother has made to get K to the Central West Contact Service, the behavioural difficulties continue. K often hides from Mr J and the process of getting her out of the home and into the car for contact can be a quite difficult one.
The Central West Contact Service notes make it clear that often when the J’s arrive at the Central West Contact Service, K is unsettled and is unwilling to engage Mr G, or indeed, the workers. Those behaviours indicate, on the face of it, that K has some objections to participating in contact with her father.
In the first report at page 13, the counsellor, having reported on the observation session between K and her father, that had taken place in August 1999, reports:
“ Before Mr G was leaving, he said goodbye to K by opening his arms towards her. She jumped into his arms and gave him a hug.”
In the second report, some two years later, the counsellor detailed a long conversation that she had with K. During the conversation, this exchange took place:
“Question: You did not want to go? K: ‘Cause I don't like him.
Question: You don't like him? K: I don't know, 'cause I like my mum.
Question: You don't think you can like your mum and your dad? K: I don't have a dad, I just have a mum and sisters and a brother.”
The dialogue continues and on page 14, the counsellor says:
“ Question: Do you want to see your daddy today? K: Yes, because my mum doesn't want me to go with him.”
These words highlight two things. They highlight K's acute awareness of her mother's attitude towards her relationship with her father. The mother’s attitude has not been supportive from K's perspective of being allowed to have an uninhibited relationship with him. It also highlights that K can indicate that she does gain some pleasure and enjoyment from her father. This is apparent from her answer to the counsellor that she did want to see her father that day.
I agree with Ms Pidcock's opinion expressed in page 16 of her report in the penultimate paragraph, where she says this:
“ K, in her interview, admitted that she has good times with her father. She related well to him during the observations when she forgot about her obligations to her mother. K appeared a little confused and seemed of the impression that her father wants her to leave with him rather than just have her visit him. She was aware that her mother does not approve of G and was unclear about her relationship with him as her father. She knew that her mother would not encourage or support her relationship with Mr G.”
The mother, I am satisfied, has a long standing opposition to K's relationship with her father. That was the gravamen of her application made to the Liverpool Local Court. She has her own reasons for her opposition to K's relationship with her father and with respect to the mother, her opposition has absolutely nothing to do with K's welfare. The mother's opposition to K's relationship with her father is all pervasive. It was apparent in the manner in which she gave her evidence and the very pressured way she spoke when talking about K and K's relationship with her father.
It would be virtually impossible for a child of K's age to live with a parent who is as opposed to contact as this mother has been over the years since separation, to formulate and then articulate positive views in relation to contact. K's home environment with her mother has undermined in a substantial way K's capacity to express a desire to have contact with her father. Her wishes, in my view, must be understood in the context of that environment and as a consequence of the quality of the environment vis-a-vis contact with the father, I am satisfied that for the purposes of these proceedings, K has no relevant wishes that are maturely expressed. Her wishes should, as a consequence, be given little weight by the Court. In essence, they are not freely formed.
The next issue is the nature of K's relationship with people who are significant to her. K has lived all of her life with her mother. There is no doubt that K's mother is her prime caregiver. K looks to her mother for guidance, for her emotional support and for the nurture that a child needs from a parent. K is undoubtedly securely attached to her. I agree with the counsellor's conclusion that K is keen to ensure that she has her mother's approval and to not distress her mother in any way. I am satisfied that K is aware that by supporting a relationship that she might secretly desire with her father, she would distress her mother.
She has close relationships with her half-siblings and with the J’s. Those relationships are healthy. The J’s have contributed to K's capacity to separate from her mother, to start school and to explore aspects of a broader environment that may not have otherwise been available to her but for the existence of these extra people in her world.
K was eight months when her parents separated. During those first eight months of her life, K's mother was seriously ill. It is a source of undoubted grief to her mother that her illness was inadequately addressed by her medical practitioners. Thus the mother found herself in the terrible situation of knowing and believing she was ill, and having those around her unable to respond to her as a person who was objectively physically ill.
Quite properly this was not the focus of the proceedings. Nonetheless, it was clear that the mother has a deep sense of grievance and distress that those around her, and importantly Mr G, could not see what was happening to her. The J’s, fortunately for everybody, intervened before the illness became so critical that the mother faced the real risk of losing her life. The mother believes that Mr G should have intervened on her behalf and not left it, she believes to others to help. That is a view formed with the benefit of hindsight. In circumstances where the doctors could not help Ms D, it is perhaps asking too much to expect those who were closest to her to see what professionals could not. She says she forgives Mr G. Her forgiveness has been a long time coming. It is now time to take the next positive steps for K's sake, now that that major impediment has at least intellectually, and, to some degree, emotionally been put aside.
That degree of distress that Ms D has felt has been the linchpin to understanding the manner in which she has managed K's relationship with her father. I have no hesitation in making a finding that in placing the barriers on a continuing basis between K's relationship with her father, Ms D has focused on her own needs and has not focused on K's needs. The fortunate thing is that Mr Gs has persevered with these proceedings before K paid too high a price for her mother's insistence that their relationship be a significantly constrained one.
The nature of K's relationship with her father is gleaned from a number of sources. It is gleaned firstly from the family report and the observation sessions that the counsellor reports on in the first and second report. In both of those reports, it is clear that K was guarded during the observation session. She has been motivated in a very substantial way by her loyalty to her mother. This loyalty required, K believed, that K not display happiness or pleasure in her father's company. Nonetheless when K forgot this imperative, she was able to enjoy quite comfortable and happy time in her father's company. This should give Ms D and Mr G considerable comfort. The pleasure that the child has in her father's company is reinforced by the material contained in the Central West Contact Service.
True it is, as Mr Stojanovic pressed on the court, there are clear signs that during the last year of supervised contact, there have been occasions when K has taken up to 20 minutes to settle before she was able to relax with her father. Similarly, there have been times during contact when K has wanted to end the two-hour contact visit earlier than the available time. I am satisfied that the difficulties associated with the start of contact and during contact have reflected K's desire to meet her perceived obligations to her mother.
It is possible that K is picking up messages from her mother, that are now old messages and no longer, from Ms D's perspective, have the same urgency about them that they may have had some years ago. One of the difficulties courts see, not only in this case, but in many cases, is that children sometimes hang on to messages that they have picked up from a parent longer than the parent intends. It is a conundrum for the parent and it is a conundrum for the child. The signs are, however, that Ms D has moved on in terms of her earlier opposition to contact and she must now ensure that K understands that Ms D is a more positive supporter of K's relationship with her father than K believes to be the case.
In any event, what the observation sessions show with both the court counsellor and at the Central West Contact Service is that K and her father do have a warm and companionable relationship. K is conflicted about Mr G's role in her life as her father. This is probably a conflict that comes about because in her mother's home she seems to hear those about her refer to Mr G variously as "Father" or "G". The importance of him in K's life will be reinforced if her mother insists that in her home when people speak about Mr Gs, they speak about K's father as "Daddy". This will send a powerful message to K of approval for her relationship with her father.
The relationship has developed from an important one in K's first eight months of life. It was set back because of the gap in contact and then the guarded opportunity for contact. There is now no good reason for the relationship to be hindered, as it would be if it were limited to supervised contact for short periods of time. The relationship can only benefit if K is given the chance to enjoy her father in his home environment. He has good ideas for contact, ideas that the mother agreed showed some insight into things that K finds pleasurable, for example, her passion for small animals. Constraining contact as the mother would propose would inevitably hinder the development of K's relationship with her father. It would not promote it.
Importantly when one looks at the principle of finality, the proposals proposed by the mother will heighten the risk of further litigation for this family. Litigation takes a toll in a financial sense and in an emotional sense. At times it serves a useful purpose but few people can live comfortably with the spectre of unending litigation. Sadly, K has been made aware that there is a court proceeding under way about her. This is a serious lapse in parental responsibility by the mother or those associated with her. I am not satisfied that I should make orders that would increase the risk of further litigation. Rather, orders which enable a smooth progression of contact and the next logical steps should be made.
There is a risk that in increasing the time that K spends with her father and removing supervision, that Ms D will have to confront some of the quiet misgivings that she, in all probability, still holds. As a parent, it is her responsibility to confront and deal with those misgivings. She must ensure that she does not infect K with her concerns.
Conclusions
The conclusions I have reached are that the orders proposed by the father are more compatible with K's best interest than the structure for contact proposed by the mother. The father is a sensitive and competent parent. This is adequately and clearly demonstrated, for example, by the occasion at contact when K arrived distressed and had vomited in the car on the way to contact. He did not insist that contact take place on that occasion. Next, his continued accommodation of the mother's desire for supervised contact when objectively there was no basis for the contact to continue to be supervised. The agreed circumstances where, I am sure, he understood that had he asked the court to determine the matter on its merit, he would not have been required to persevere with supervised contact.
The father’s relationship with K has had the opportunity to develop in a significant way since the resumption of the supervised contact. In neither the short term or the long term, however, does the continuation of supervision promote that relationship. It will send K a message as she gets older that perhaps there is something wrong about her relationship with her father, which means that she cannot have the type of relationship that many other children enjoy with the parent that they do not live with.
The mother has had a blind opposition to contact. She has complained of mental cruelty in circumstances where the descripta of mental cruelty is not appropriate to the lives that these parties lived. I am satisfied that she has reached a point that intellectually she understands that K deserves a relationship with Mr G. When she gave her evidence, Ms D impressed me as a woman of quick intelligence and quiet determination. If she perceives that she has emotional or psychological stressors that will impinge upon her capacity to cope with unsupervised contact, then it is her obligation to do something about it. It is not any longer a reason to stand in the way of K's relationship taking the next important steps with her father.
There will, undoubtedly, as the next transitional steps are taken for contact between K and her father, be difficulties for K. As K's prime caregiver, many of these difficulties will fall upon the mother. She will have to equip herself to cope with them.
I accept the mother's evidence that K is a delightful and headstrong six year old. That presents a challenge for any parent, particularly when they are forcing a child to do something that from time to time, K is not going to want to do. I have no doubt that K will, as each step is progressively taken on her return from contact, be critical of some of the events that take place during contact. K will probably need to test her mother's commitment to the contact. That is going to be a challenge for Ms D. Because of her intelligence, because she has had the benefit of receiving the family report writer's contribution as an independent observer to the relationships over the last two, I am satisfied that Ms D, if she puts her heart and intelligence to it, will be able to properly respond to K's resistance when it occurs. The challenge for Ms D is to be calm in the face of K's opposition and to not overreact to it.
The orders I make will provide that when contact resumes, there will be an opportunity for the first occasion of contact to be supervised at the Central West Contact Service. This is because there has been a gap of some months since K had contact with her father. If the contact service cannot facilitate contact either this weekend or next, then the contact should start without any further delay or supervision. The gap in contact has not been so substantial that K's relationship with her father will have been undermined by it. Then the contact will move quite quickly through daytime contact, so that by 9 March 2002, contact will take place each alternate weekend. Once weekend contact starts, the Saturday-only day contact ceases.
I am satisfied that by the June/July school holidays, contact for half of the school holidays similarly should start. Given her age, K is well able to build up through daytime and then weekend contact, the capacity to spend initially a week during the school holidays. By the school holidays at the end of this year, she will be able to spend half of the holidays with her father.
The contact changeover in the short term will be contact at the Central West Contact Service at the start of contact and the mother's home at the end of contact. When returning K to her mother's home, the father will not be entitled to enter into the mother's home or onto her property. He will be required to drop K at the entrance to the property. I am sure the mother will be waiting to receive K. K is old enough to run up the path to her mother and does not need assistance to do so.
It is imperative that the Central West Contact Service is involved at the start of contact, at least for the next few months. That will provide skilled intervention managing any reluctance K has to the start of contact.
The time will come when the Central West Contact Service need no longer be involved at the start of contact. That time will be when six months of regular contact weekend contact. If the contact hand-over is proceeding well and contact is taking place consistently, then the father will be required to agree to a change in place for the start of contact. He will not be entitled to unreasonably withhold his consent to a place being agreed upon that is neutral and located closer to both Mr G’s and Ms D’s home.
There will be difficulties for the start of contact for Ms D in making the arrangements to have K at the Central West Contact Service once the daytime contact starts. At present she relies upon Mr and Mrs J who, because of an illness with their son and Mr J's work commitments, are not be able to take K for a 9 am Saturday start. The mother will either need to rely on public transport herself or make arrangements with other people to have K at the contact service by 9 am on Saturdays once the daytime and then weekend contact starts.
The orders I make in this matter are orders that I am satisfied that are in this little girl's best interest.
For these reasons I make the orders identified at the start of this judgement.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Ryan FM
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