GAINFORD & CLARKE
[2012] FMCAfam 972
•13 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAINFORD & CLARKE | [2012] FMCAfam 972 |
| FAMILY LAW – Parenting – final parenting orders – argument as to whether presumption of equal shared parental responsibility is rebutted – consideration of recommendations of report writer and independent Children’s Lawyer – determination that presumption is in the best interests of the child – whether child should live equal time with each parent or primarily with mother and spend substantial and significant time with the father – consideration of graduated increase in time with father over and above that which had been occurring – consideration of effect upon the child and primary attachment to the mother – consideration of mother’s capacity to foster a relationship with the father being mindful of an objection on a “philosophic level” – determination of need for precise orders in respect of time to be spent by the father with the child and the steps to increase such time – discussion of primary and additional considerations. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Chappell and Chappell (2008) FLC 93-382 Juliet & Jones [2010] FamCA 523 Hardie & Capris [2010] FamCA 1046 |
| Applicant: | MR GAINFORD |
| Respondent: | MS CLARKE |
| File Number: | CSC 733 of 2010 |
| Judgment of: | Coker FM |
| Hearing date: | 6-8 August 2012 |
| Date of Last Submission: | 8 August 2012 |
| Delivered at: | Townsville |
| Delivered on: | 13 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Victoire |
| Solicitors for the Applicant: | Miller Harris |
| Counsel for the Respondent: | Ms Wilson |
| Solicitors for the Respondent: | Lehmann Featherstone |
| Counsel for the Independent Children’s Lawyer: | Mr Trevino |
| Independent Children’s Lawyer: | Susan Gray Solicitor |
ORDERS
That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2008, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(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 each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.
That the child live with the Mother at all times other than those that the child is spending time with the Father pursuant to orders (5), (6) and (7) herein.
That the child spend time with the Father at all reasonable times as may be agreed but in particular:
(a)Each fortnight, from 9.00am Friday to 5.00pm Sunday in week 1, commencing from Friday, 14 September 2012;
(b)Each fortnight, from 9.00am Thursday to 9.00am Saturday in week 2, commencing on Thursday 20 September 2012;
Upon the child commencing prep (anticipated in late January 2014)
(c)Each fortnight, from after school Thursday in the first week to before school Monday or Tuesday, should the Monday be a public holiday or pupil free day, in the second week;
(d)This arrangement will continue through the school term but will be suspended in school holiday periods;
(e)During gazetted school holiday periods as follows:
(i)For five consecutive nights in each of the Easter, June/July and September school holidays with such time to be taken in the first week of those holiday periods;
(ii)For five consecutive nights in each fortnight of the Christmas school holiday period, with such time to commence in the first week of the holiday period.
Upon the child commencing Grade 1 (anticipated in late January 2015)
(f)Each fortnight, from after school Wednesday in the fist week to before school Monday or Tuesday, should the Monday be a public holiday or pupil free day, in the second week;
(g)This arrangement will continue through the school term but will be suspended in school holiday periods;
(h)During gazetted school holiday periods as follows:
(i)For the second half of the Easter, June/July and September school holidays;
(ii) Every second week of the Christmas School holiday period.
Upon the child commencing Grade 2 (anticipated in late January 2016) and thereafter
(i)Each fortnight, from after school Wednesday in the first week to before school Monday or Tuesday, should the Monday be a public holiday or pupil free day, in the second week;
(j)This arrangement will continue through the school term but will be suspended in the school holiday periods;
(k)During gazetted school holiday periods as follows:
(i)For half of the Easter, June/July and September school holidays with the Father having the first week in odd numbered years and the second week in even numbered years;
(ii)For half of the Christmas School holiday period with the Father having the first half in odd numbered years and the second half in even numbered years.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Tuesday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Tuesday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school until 9.00am on the Wednesday five days later;
(d)The second half of the gazetted end of Term 1 school holiday period shall be from 9.00am on the Wednesday until 6.00pm on the Sunday preceding the recommencement of school;
(e)The first half of a gazetted end of Term 2 or end of Term 3 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(f)The second half of a gazetted end of Term 2 or end of Term 3 school holiday period commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g)The first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h)The second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
SPECIAL DAYS
Notwithstanding the provisions of any other orders the child shall spend time with the parents as follows :
(a)Should the child not be with the relevant parent on either Mother’s Day or Father’s Day then the relevant parent shall collect the child at 5.00pm on the day preceding Mother’s Day or Father’s Day and return the child to the other parent at 9.00am the day after or deliver the child to kindergarten or school.
(b)If the child’s birthday falls on a non school day the parent with whom the child is not living shall spend time with the child from 2.00pm on the child’s birthday until 2.00pm the next day or return the child to school. If the child’s birthday falls on a school day the parent with whom the child is not living shall spend time with the child from after school until 6.00pm.
(c)Should the child not be with one parent or other on that parent’s birthday, the child spend time with that parent from the conclusion of school until the commencement of school the next day, provided however that should such birthday fall on a non-school day then from 3.00pm on the parents birthday until 9.00am the next day.
(d)Should the parent having the child in their care in the first half of the Christmas school holidays be in the same locality being Cairns or Brisbane as the other parent, then and in that event, the other parent spend time with the child from 2.00pm on Christmas Day until 2.00pm on Boxing Day.
HOLIDAYS
That each parent be at liberty to take the child on a holiday outside of the Local Government Area (LGA) the child resides in during their time with the child provided that if the parent proposes to take the child out of the LGA for a period in excess of four (2) days, they provide the other parent with the following information forty-eight (48) hours prior:
(a)Proposed holiday destination or destinations;
(b)Travel arrangements and accommodation details for the child;
(c)Persons with whom the child will be staying whilst on holidays; and
(d)A telephone contact number for the child whilst the child is on holidays.
The parent must provide 2 months notice of any intended international travel with the child and provide:
(a)Proposed holiday destination or destinations including a copy of the travel itinerary when available;
(b)Persons with whom the child will be staying whilst on holidays; and
(c)A telephone contact number for the child whilst the child is on holidays.
COMMUNICATION ARRANGEMENTS
The child will communicate with the parent with whom the child is not living at 5.30pm each Tuesday with that parent to initiate the call to the parent with whom the child is living and that parent to ensure the child is ready and available to accept the call in a quiet and private environment.
At all reasonable times if the child requests to telephone the parent with whom they are not living the parent with whom they are living will assist the child to make the call to the other parent.
Each parent is restrained from monitoring, recording or listening to any communication between the child and other parent, or permitting any other adult to do so.
CHANGEOVER ARRANGEMENTS
Until the child attends school or kindergarten the Father shall collect the child from [location omitted] and the Mother shall collect the child from the Father residence at the conclusion of her time with the Father.
The Father shall collect the child from child’s kindergarten or school and return the child to kindergarten or school during the school terms.
The Father shall collect the child from [location omitted] during school holidays and the Mother shall collect the child from the Father’s residence at the conclusion of the child’s time with the Father.
EXCHANGE OF INFORMATION AND SPECIFIC ISSUES
The Mother and Father shall keep the other parent informed at all times of their residential address and landline contact telephone number and provide any change in writing within 7 days of such change.
The Mother and Father shall keep each other informed of the names and addresses of any treating Medical or other health practitioners that treat either of the child and authorise that practitioner to provide the otherr with information that they are lawfully able to provide about the child.
The Mother and Father shall inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by either of the child. This order authorises any treating medical practitioner to release the child’s medical information to the Mother and Father.
Each parent shall inform the other of any medical emergency which requires the child’s attendance at a doctor or medical facility when the child is in their care as soon as practicable or within 24 hours. This order authorises any treating medical practitioner to release the child’s medical information to the Mother.
The Parents authorise, by this order, the Schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of School reports, Photographs, certificates and Awards obtained by the child (at the cost of the respective parent).
During the time the child is with either parent that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not discuss the Court proceedings, Court orders or any other aspects of the Court proceedings with the child or in the presence or hearing of the child;
(d)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
OTHER ISSUES
The child will attend [P] Kindergarten in 2013.
The child will attend one of the following Catholic Primary Schools as agreed between the parents and failing agreement as chosen by the Mother:
(a)[S] School at [suburb omitted];
(b)[H] School at [suburb omitted]; or
(c)[M] School at [suburb omitted]
Neither parent shall enrol the child in any extra curricular activities without the written consent of the other parent and each parent is to ensure the child attends any extra curricular activities in which the child is enrolled when spending with them.
The Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Gainford & Clarke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
CSC 733 of 2010
| MR GAINFORD |
Applicant
And
| MS CLARKE |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to orders sought with regard to the parenting of the child, [X], hereinafter [X], born [in] 2008. [X] is the child of
Mr Gainford, whom I shall refer to as the father, and Ms Clarke, whom I shall refer to as the mother. The mother and the father were in a relationship for a period of five years or thereabouts.
It should be noted, particularly, however, that they agree that separation occurred on or about 1 September 2008, which of course was some two months prior to the birth of the child. The significance of that becomes obvious later in these reasons, when it will be necessary to address issues that arise with regard to the relationship between the parties, now and into the future. There is, if you like, a situation of there never having been, as the mother described it, a family constituted by the mother, the father and the child and therefore, there are issues which arise simply because of the lack of knowledge that each parent has of the other, insofar as their capacity to parent is concerned.
The application that commenced these proceedings was filed on 3 December 2010. [X] was a little over 2 years of age when that application was filed and, it is significant that whilst there were difficulties experienced by the parties in their dealings with each other subsequent to [X]’s birth, they were able to eventually arrange matters, such that there was an opportunity for time to be spent by both parents with the child, including opportunities which were taken up subsequent to advice received from a counsellor, for there to be what might be called, “family time”, involving the mother, the father and the child.
Difficulties, however, arose in relation to such arrangements which finally led to the filing of the initiating application on the part of the father. The orders that were sought by the father in relation to parenting and, perhaps more specifically, his opportunity to spend time with the child, were set out in the orders proposed in the Initiating Application. They were as follows:
1. That the parents shall have equal shared parental responsibility for the child [X] (“[X]”) born [in] 2008.
2. That [X] live with the mother apart from the times set out in the following paragraphs, when [X] shall live with the father.
3. That during the period commencing on [X]’s second birthday, [date omitted]2010 until 30 April 2011 [X] shall live with the father in a two weekly pattern as follows:
3.1 In week one and week two from 7.00 a.m. to 11.30 a.m. Tuesday.
3.2In week one and week two from 7.00 a.m. to 11.30 a.m. Wednesday.
3.3. In week one from 7.00 a.m. Saturday till 11.30 a.m. Sunday.
3.4In week two from 7.00 a.m. Friday till 11.30 a.m. Saturday.
3.5 At such other times as are agreed between the parties.
4. That during the period commencing from 1 May 2011 until [X]’s third birthday [date omitted] 2011 [X] live with the father in a two weekly pattern as follows:
4.1.In week one and week two from 6.30 p.m. Monday until 11.30 a.m. Tuesday,
4.2In week one and week two from 7.00 a.m. to 11.30 a.m. Wednesday
4.3In week one from 7.00 a.m. Saturday till 11.00 a.m. Sunday
4.4In week two from 7.00 a.m. Friday till 11.30 a.m. Saturday.
5. During the period commencing from [X]’s third birthday, [date omitted] 2011 until 30 April 2012 [X] live with the father in a two weekly pattern as follows:
5.1In week one and week two from 3.30 p.m. Tuesday until 7.00 a.m. Wednesday
5.2In week one from 7.00 a.m. Friday until 7.00 a.m. Saturday.
5.3In week one from 7.00 a.m. Sunday till 7.00 a.m. Monday
5.4In week two from 7.00 a.m. Thursday till 7.00 a.m. Friday
5.5In week two from 7.00 a.m. Saturday until 7.00 a.m. Sunday.
6. That during the period commencing 30 April 2012 and continuing [X] shall live with her father in a two weekly pattern as follows:
6.1In week one from 3.30 p.m. Tuesday until 11.30 a.m. Wednesday
6.2In week one from 7.00 a.m. Friday to 7.00 a.m. Saturday
6.3In week one from 7.00 a.m. Sunday till 11.30 a.m. Monday
6.4In week two from 3.30 p.m. Tuesday until 7.00 a.m. Wednesday
6.5In week two from 7.00 a.m. Thursday until 7.00 a.m. Friday
6.6In week two from 7.00 a.m. Saturday until 7.00 a.m. Sunday.
7. In the event that the father is not available to spend time with [X] pursuant to these orders because of his absence from Cairns, the father shall use his best endeavours to provide to the mother 7 days notice of his inability to spend time with [X] on particular days.
8. That in addition to the time set out in orders 3, 4, 5 and 6 herein, until [X] commences school, [X] shall live with the father as follows:
8.1During the period [date omitted] 2010 to 30 April 2011 for two continuous and separate periods of three days and three nights.
8.2During the period from 1 May 2011 until [date omitted] 2011 for two continuous and separate periods of four days and four nights.
8.3During the period commencing [date omitted] 2011 till 30 April 2012 for two continuous and separate periods of five days and five nights.
8.4During the period 30 April 2012 and continuing until [X] commences school for two continuous and separate periods of seven days and seven nights in each six month period.
Provided that in respect of the periods of block time set out above, the father shall nominate the periods no later than 21 days prior to the commencement of each period and during such periods the father be permitted to take [X] outside of Cairns and its surrounding areas.
9. Upon [X] commencing school, [X] live with the father for half of each mid-year school holiday to be determined by agreement between the parties but failing agreement for the first half in odd numbered years and the second half in even numbered years and for one half of each Christmas school holiday, provided that until [X] turns seven years the father’s half of the school holidays shall be made up by block periods not exceeding fourteen continuous days and nights.
10. Each party shall advise the other of particulars of all medical appointments that [X] attends and, in the event that either party receives a medical report concerning [X]’s condition, they will forthwith provide a copy of that report to the other party.
11. Notwithstanding any other provision contained in these orders, in respect of Christmas Day, Father’s Day, Mother’s Day and [X]’s birthday, [X] shall spend time with the parties as follows:
11.1In relation to Christmas Day, [X] shall spend time with the father in even numbered years from 11.00 a.m. Christmas Day to 10.00 a.m. Boxing Day and in odd numbered years from 3.00 p.m. Christmas Eve to 11.00 a.m. Christmas Day and from 10.00 a.m. Boxing Day to 3.00 p.m. Boxing Day.
11.2Unless otherwise agreed between the parties in writing, the parties’ time with [X] over the immediate Christmas Day period shall be spent in Brisbane and the parties shall do all acts and things to facilitate that arrangement.
11.3On Father’s Day [X] shall spend from 7.00 a.m. to 6.00 p.m. with the father.
11.4On Mother’s Day [X] shall spend from 7.00 a.m. to 6.00 p.m. with the mother.
11.5On [X]’s birthday, [X] shall spend time with the parent who she is not living with in accordance with orders 3, 4, 5, 6 and 8 herein for a period of three hours when [X]’s birthday falls on day on which she is attending school or for five hours if [X]’s birthday falls on a day when she is not attending school
As can be seen, the proposed orders provided for [X] from her 2nd birthday, in order words, about five weeks prior to the filing of the father’s application, to spend time with the father Tuesday and Wednesday of each week from 7.00am until 11.30am and, additionally, in week one of a two-week cycle, from 7.00am Saturday until 11.30am Sunday and in week 2 from 7.00am Friday until 11.00am Saturday. The orders then progressed to 1 May, with an increase in the amount of time being spent by [X] with the father until [X]’s 3rd birthday, and again there were further increases proposed by the father for more time to be spent with [X] at which time, though not clearly delineated, it appears clear that the father’s proposals were for him to have equal time with the child.
Subsequent to the filing of the mother’s response, other indications had been given of the father’s position in relation to this matter, and finally, after evidence was heard in relation to the proceedings, the father’s final position was set out in an amended form of order which was tendered at the commencement of submissions. The terms of the orders that were sought by the father are annexed hereto and marked “A”.
The response filed by the mother in relation to the matter was filed on 15 February 2011 and sought orders in a much less detailed form. The orders proposed by the mother were simply as per orders 1, 2 and 3 of the final orders sought by the respondent contained within the response to the initiating application of 15 February 2011.
1. That the Mother and Father have equal shared parental responsibility for the child [X] born [in] 2008.
2. That the child live with the Mother.
3. That the child spend time with the Father:-
a.On Tuesday, Wednesday and Saturday of each week between the hours of 7.15am and 11.15am;
b.Such other times as agreed to between the parties.
As can be seen from those orders, there were proposals from the date of filing and indefinitely into the future for the father to have the opportunity to spend three specific mornings with [X], Tuesday, Wednesday and Saturday of each week from 7.15am to 11.15am and then such other times as may be agreed. Of course, that was significantly less than anything that may have been proposed by the father in relation to the matter and was not able to be further negotiated or agreed between the parties. It led to a number of skirmishes before the court in relation to various issues and various interim orders were made in respect of arrangements, with regard to the future parenting of [X].
At the commencement of the hearing, the proposed orders of a far more specific nature were provided on the part of the mother. Those orders were detailed in the outline and a copy of the orders is annexed hereto and marked with the letter “B”. In fact, at the commencement of submissions in relation to the matter, the mother’s counsel also provided to the court, albeit in an abridged form, the final orders that were sought by the mother which, to some extend at least, expanded upon and varied the proposals which had been contained within the draft, provided at the commencement of the hearing.
The abridged indication of the final orders sought by the mother are annexed hereto and marked with the letter “C” and clearly should be read in conjunction with the proposed orders which were put on the part of the mother at the commencement of the hearing.
I also had the considerable assistance of an experienced Independent Children’s Lawyer, in relation to the determination of this matter. At the commencement of the hearing, a proposal was put by the Independent Children’s Lawyer, in relation to what would be a basis upon which this matter could be settled, though it was clearly noted that it was simply at that stage a preliminary view which may have been the subject of variation, following the consideration of evidence that might fall in relation to the proceedings.
I do not include that preliminary view in relation to this matter because, as was understandably anticipated, in relation to the proceedings, there was in fact a change in the view that the Independent Children’s Lawyer had with regard to the matter, such that a further strong recommendation was included in relation to the orders that were proposed by the Independent Children’s Lawyer.
Annexed to these reasons and marked with the letter “D” is a copy of the final orders sought and recommended by the Independent Children’s Lawyer.
I have outlined at some length the particulars in relation to the proposals in respect of this matter, because it is important that there be a clear understanding of the different views that are held by each of the parties and at least to some extent, on the part of the Independent Children’s Lawyer. The most significant issue, of course, is what might be the final step, at least from the father’s perspective, in relation to this matter, of an order with regard to equal time being spent by each parent with the child, albeit it appears acknowledged on the part of the father, as not becoming effective until 1 January 2015, at which time [X] will have commenced school and would be a little over six years of age.
I had the opportunity during these proceedings of seeing both the mother and the father in the witness-box. I was also most assisted by the evidence of a psychologist, Ms L. Ms L prepared two reports in relation to this matter, the first of those being a report annexed to her affidavit of 25 May 2011, which report is dated that day, 25 May 2011. A second or supplementary report was also sought by the Independent Children’s Lawyer and that report is annexed to the affidavit of Ms L filed 3 July 2012. That report is dated 29 June 2012.
Before addressing the evidence of the report writer and, of course, of the father and of the mother in relation to these proceedings, I should note that a number of other witnesses were initially involved in the proceedings and filed affidavits in support of either the mother or the father. However, the parties and no doubt the legal representatives for the parties, all acknowledged that the main players, if I can describe them that way in this particular matter, were the mother and the father and, of course, significantly, the report writer, who had had the opportunity to observe each of the parties and of course the child and their interaction with the child.
The Independent Children’s Lawyer indicated that the other deponent’s were not required for the purposes of cross-examination and their evidence was accepted, though it was clear that it related only to specific instances or general observations and did not necessarily assist in the final determination of these proceedings.
Both the applicant and the respondent, through their counsel, also acknowledged that only the other party and the report writer, Ms L, were required for cross-examination.
I accept obviously the material that is contained within the various affidavits of other deponents, either supportive of the father or the mother in relation to these proceedings, but should of course specifically note that I am not necessarily of the view that any of their evidence would be in any real way, determinative of the final position in relation to these proceedings.
I had given thought to addressing the evidence of the report writer in relation to this matter prior to any commentary that I might make in relation to the evidence of either the father or the mother. I have come to the view however, that in light of many issues that arose in relation to the evidence of both the mother and the father, it is perhaps more appropriate that I should address their evidence first and then seek to address the evidence of the reporter, Ms L, particularly in light of the fact that Ms L was understandably, taken to many of the issues that arose from cross-examination of each of the parties.
I turn therefore to the evidence of the father and the mother in relation to these proceedings but it is proper I think that I should note one specific and significant matter in relation to each of the parents before then commencing to comment in a perhaps more unfavourable way, about some of the behaviours of the parents.
It is clear that both of these parents dearly love their little girl and would obviously and without doubt, ensure that in every possible respect, their child would be provided for financially, physically, emotionally and in any other appropriate way. A great tragedy of course, is that whilst both the mother and the father would, without hesitation, do all that might be required to provide for the child, they have notwithstanding that determination on their part, been unable to appreciate in any real way at all, the hurt that in fact occurs for [X], when they are unable to work together, for the betterment of the child.
Whilst there are obviously criticisms to be made of both the mother and the father in relation to this matter, it is clear and was commented upon on a number of occasions by Ms L, that the parents have been able, notwithstanding their difficulties in interaction and communication with each other, to seclude [X] from any harm, at least to this time, that might arise from the fact that their dealing with each other has been difficult on many levels. That’s not to say however that a child as obviously bright and astute as this little girl clearly is, would not soon commence to pick up on issues relating to the fact that her parents speak little to each other and no doubt on occasions would react even perhaps only physically rather than verbally, in a way which would indicate their disdain for the other parent and their views.
It is no doubt a difficult line that both parents have sought to walk in relation to the parenting of this child and whilst there appears clearly not to be, at this stage, any issue of hurt being experienced by the child, it is a matter which must be dealt with by both parents and of course considered by the court, in relation to any final arrangements which might appropriately be made.
The father on a number of occasions gave evidence which could perhaps be summarised as he would do anything that might be required, to ensure that [X]’s needs in every respect are met. I do not doubt for a moment that that would be the case. The clear evidence in relation to this matter is that this little girl is cherished by two parents who have had a child late in life.
The father is 46 years of age. He is a [omitted] by occupation, and certainly indicated in this material that he had, at least until recent times, worked as a [omitted]. He is a man of particular skills and talent and, no doubt has a great deal to offer to this child, both as a result of his love and devotion for the child, as well as of course from the skills that he would be able to impart to her, particularly with regard to communication.
The mother is 44 years of age. She is a [occupation omitted] and, again, it appears clear that she has skills and abilities, both as a mother but also as a highly educated woman that would no doubt provide for this little girl enormous benefit insofar as the opportunities to learn from her mother. Both parents have a great deal to offer this child and both parents recognise that they have come to parenting later in life, the mother being 40 and the father 42 at the time of the child’s birth, and whilst being unable to be certain about such matters, it would be likely that neither of these parents will have other children, such that the importance to them of their relationship and interaction with [X] becomes even more significant, in relation to these proceedings.
Noteworthy also, and I will obviously address it further in relation to these proceedings, is that both parties to a significant degree, use words and the skills associated with communication to earn their respective living. Both of them are highly educated and yet the great tragedy here is that if nothing else, the communication between the two most important people in [X]’s life has been so difficult that opportunities which were previously taken, for example those of “family time”, which had occurred on the Saturday afternoon up until [X] turned about 2 years of age, have ceased and no doubt that has in some way been noted by the child, though not necessarily affecting her as yet.
The father has much to offer this child but what is tragic is that his hopes and expectations with regard to the parenting of this child have to a significant degree, been couched in terms of what he wants rather than to be proposed in terms of what might be most appropriate, for this little girl. That is reflected in the parenting plans that the father prepared when this child was only a babe in arms, if not still in utero and included, understandably from the father’s perspective, significant time spent with him, though from the mother’s perspective, no doubt, a concern that the father was intruding unreasonably in the extreme, in the mother’s life.
The father’s initial final orders, as set out earlier in these reasons proposed significant time with the father on Tuesdays and Wednesdays of each week, as well as from 7.00am Saturday until 11.30am Sunday or 7.00am Friday until 11.30am Saturday in alternate weeks from when the child turned 2 years of age. There was, if you like, little appreciation of the primary attachment that had clearly developed between the mother and the child, and the obvious concerns that would arise as a result of separation from the mother immediately as proposed by the father, when such periods had not previously been available and certainly when overnight periods had not been able to be taken, for whatever reason by the father.
The father’s then proposals were for significant increases in time including overnight time being spent by [X] with her father from two and a half years of age and progressing quickly on six-monthly intervals to more significant time, as well as holiday periods of initially three nights, then four nights, and then five nights by 30 April 2012, when [X] would be three and a half years of age.
Whilst the father no doubt would be able to meet all of the physical needs of the child, there appears clearly to have been a failure on the part of the father to appreciate the emotional toll that would be taken upon this little girl, with regard to such significant periods of separation from her primary carer.
Ms L in her material and in her oral evidence spoke of those particular concerns and at least to some extent they have been taken on board by the father though his proposals in relation to the progress of increased time with the child were at least until evidence had been heard in relation to this matter, still extremely fast, involving eight-week stages or steps that were to culminate in one half of time being spent by the child with each parent.
The father was cross-examined at length about issues which arise in relation to his financial capacity to provide for the child. The father had clearly operated in the past in quite rarefied circumstances, where he had significant clients, paying him substantial sums and no doubt, from that he was able to live a life of quite significant comfort.
He was criticised and, I think to some extent, unfairly, for having made decisions in relation to the work that he would do and the place that it would be performed. By making a move to Cairns, he says and I accept, that it was for the purposes of being more completely and fully involved in [X]’s life, he was forced to forego significant income and, in fact, as of the middle of 2012 finds himself, he says, in a situation where his consultancy business, operated through the company [S] Pty Ltd, has no clients and therefore is simply a shell, not earning or providing income to the father at this time.
The criticism of the father having made decisions which he says were based on a desire to be more completely involved in [X]’s life are however somewhat unfair, when the expectations of society are obviously for each parent to, as fully as they can, involve themselves in the parenting of their children. It of course led to difficulties for the mother however, in that child support, which had previously been paid in excess of $1000 per month was severely reduced until the present time where there is only limited, if any, payment made on the part of the father.
The father, as I say, was cross-examined at length in relation to that particular issue and counsel for the mother finally, after addressing many issues, put to the father quite directly the following suggestion which was:
You have run down this business to avoid your child support obligations.
The father became upset and, I think genuinely, was distressed at this suggestion and responded in the following terms:
My commitment to [X] is unquestioned. I moved to be with her and I chose her over my ill mother. I wish it was still a successful business but I could not have it all.
I accept that that was the motivation in relation to this matter and the circumstances of the father and the operation of the company, [S] Pty Ltd, is hoped to be, as the father put it, re-vitalised following there being certainty in relation to arrangements to the future parenting of [X].
The father’s commitment to [X] is, I find, unquestioned. He has made decisions adverse to his and, no doubt, the mother’s financial circumstances to ensure that he is more available to involve himself in the life of the child. He has made those decisions out of a determined view on his part to be involved, as fully as possible, in relation to the life of the child.
However, there are also concerns about certain of the behaviours of the father. Prior to [X]’s birth, the parties separated, and a matter of some three or four weeks after separation, the father sent a number of emails to friends of his, he says, to explain why he had gone “off the radar”, following separation. But of course what was contained therein were statements with regard to what he says were acts of domestic violence perpetrated by the mother. It was suggested to the father that it was done to embarrass and humiliate the mother. The father denied this.
The other alternative suggested on the part of the mother was that if it was not for that purpose, then it was a self-serving communication seeking to involve others, to gain sympathy or support. The father did not necessarily accept that but acknowledged that it was, as he put it, a highly distressing time for him and, in hindsight, was not wise communication.
As I noted previously, being a professional communicator as he is, it was even more unwise and I must say that the nature of that communication and other communications between the mother and the father has given rise to many of the difficulties inherent in these proceedings. The father and the mother have both been quick to draw the worst possible connotation that could be drawn in respect of the other’s communication with them in relation to the matter. The material, and there is a great deal of it available in relation to these proceedings, shows the unpleasant nature of many of the communications between the parties and the very real examples of each party drawing the worst possible inference from what might be said in communications from the other.
Counsel for the Independent Children’s Lawyer zeroed in specifically on one of these communications relating to the 50th wedding anniversary celebrations of the father’s parents. An attempt was made by the father to arrange an opportune for [X] to be involved in these celebrations. The mother communicated positively in relation to that request of the father, though there were certain terms or conditions that might need to be achieved in relation to the matter.
The father’s response, however, was to not accept that there was something positive in relation to that communication. As he put it, in cross-examination, he didn’t read the response as an “OK”, but rather as an offer to explore an opportunity. Unfortunately it became a business-like transaction between the mother and the father where there were proposals and counter-proposals, offers and counter-offers and, tragically, in the end this little girl did not have the opportunity to participate in a significant and important family event involving the father and his extended family.
It was simply one of the many instances of communication between the mother and the father, which resulted in distress for each of the parents because of the failure to achieve what one or other might have hoped to achieve, as a result of their initial approach to the other parent but far more tragically and significantly, it resulted in this little girl not having the opportunity for direct involvement in an activity of real significance to one or other of her parents.
The material is simply abundant with communications between the parents in which there has been exchanges of firm views or opinions held by each about the other, and with the unfortunate outcome of the child not eventually being involved in the activities that were proposed.
The father, I think, rather hopefully explained that many of the communications that existed between he and the mother were, as he described it, “tortuous” and that it led to difficulties between them, but that in the end they eventually “got there”. I must say that that view in relation to the manner of communication between the two gives rise to my thought that it is a triumph of hope over experience.
The mother spoke of being ground down by the process and of, in the end on many occasions, giving in to the father’s requests in relation to arrangements with regard to [X], simply because she didn’t have the strength, physically or emotionally to continue the dispute, in relation to matters. I am unfortunately very much of the view, that whilst the communication between the parties is tortuous, it does not in the end get there insofar as any suggestion that the parties have reached a mutual decision in relation to proceedings, but rather that one or other, perhaps more often than not the mother, has simply given up in the debate that has occurred in relation to arrangements.
The father has unfortunately also on many occasions been less than full and frank with the mother in relation to arrangements, and has then been critical of the mother for her not immediately agreeing to what he might propose. Obvious examples of that include a request for an early pickup and a late return of the child on an occasion of time to be spent by the father with [X], without an explanation of, as he noted in cross-examination, the fact that he was leaving town for a couple of days with the child for time to be spent with friends or family. When the mother agreed to one of the times being changed, but not another, the father simply, as he put it, “let it lie” and no change occurred in relation to arrangements with regard to time being spent, rather than simply explaining that there were opportunities which, with a few more hours, might be able to be availed and they could be used.
The father criticised the mother. He, as he put it, expressed his disappointment in those communications but in fact it was much more than that and was a somewhat heated exchange between the mother and the father. On other occasions the father has threatened the mother with regard to, “revoking his approval of pre-arranged plans”, unless his particular requests were met. When questioned about that by counsel for the Independent Children’s Lawyer, the father referred to it as an idle threat but I am unfortunately more inclined to the view that is part of the communication technique that exists only between the mother and the father, not between anyone else with whom they might communicate, socially or professionally, and was more than an idle threat, but rather an application of emotional pressure to achieve what he might want in relation to the child.
There are many examples of the behaviours of the father in that regard and no doubt there were many occasions where the mother felt pressured to agree to what the father proposed in relation to time being spent by the father with the child, rather than a real discussion of what might or might not be appropriate, in relation to arrangements with regard to the child.
I should note, of course, and will comment upon it later in these reasons, referring to the mother, that to some extent the father no doubt felt that without being, as he sometimes described it in his evidence “ambitious in his proposals with regard to time with [X]”, then he would have little opportunity to spend time, because whilst he sought to push for more time, the mother was clearly reluctant to consider any additional time with the father, and those two diametrically opposed positions led to many of the difficulties that then continued, in relation to the interaction between the mother and the father.
The father was also on occasions disparaging of what was offered or made available by the mother. It was troubling for example that on at least two occasions in September of 2009, and September of 2010, his family visited north Queensland and whilst the father wanted more time and opportunities for [X] to spend periods with his parents, there were opportunities made available for that to occur and, to their great credit, the paternal grandparents were thankful for such opportunities. When being questioned about that, however, as to the fact that additional times did occur, the father I think lacking any grace or generosity in his response, simply said that additional times occurred that, “suited the mother”. There was a total failure on the part of the father to recognise that the mother had made additional opportunities for time to be spent.
The father no doubt lashed out at the mother in relation to some of those communications and it again should be noted that the mother similarly on occasions lashed out in the most unpleasant of manners towards the father. But what is abundantly clear is that two mature and well-educated people were unable to communicate appropriately with each other, in relation to the most important thing in their lives, the future care and provision for their only child.
It is an unfortunate circumstance because, as I noted earlier in these reasons, this child is blessed in many ways with two such caring and devoted parents as she has and yet the two most important people in her life are unable, unfortunately, to work together in any real or courteous manner to make decisions in relation to her future parenting.
The father’s suggestion that there were many occasions when they were able to reach agreement, flies in the face of the obvious concerns that have arisen in only recent times with regard to the kindergarten to be attended by the child, or, in time to come, the school to be attended by the child. It does give rise to very great concerns as to the parties’ capacity to put to one side the animosity they each, at least to some extent, feel toward the other and to ensure that the first and only real consideration is the best interests and the welfare of the child.
Issues with regard to parental responsibility therefore loom large in relation to this matter, though as should be noted from earlier in these reasons, the proposals that have been put on a final basis in relation to the proceedings on behalf of now the mother, the father, and the independent children’s lawyer, all recommend equal shared parental responsibility. I still have some concerns that that may again be an example of hope over experience, but will address that issue later in these reasons.
There are matters that obviously give rise to concern with regard to the father, but I must say that one response that was given to the father was I thought absolutely and critically significant in relation to this matter. The father was asked by counsel for the Independent Children’s Lawyer what he thought of the mother as a parent. Without hesitation, he described her as a good mum and, when asked about the mother’s strengths as a parent, became quite upset and, I thought was most sincere and genuine in the praise and support that he provided for her.
In essence, he said that he has had no real opportunity to observe the mother’s capacity to parent [X] and their interaction. He said however that it had been something that he had dreamt of and, seeing [X] as a happy child, an intelligent child, a child achieving over and above what might normally be expected for one of her age, and, as the father finally described her, a beautiful little girl, he could have, as he said it, no cause to criticise or distrust the mother’s parenting.
The father was in my assessment absolutely genuine in those statements and whilst there have been occasions where he has lashed out, perhaps without much thought toward the mother, I have no doubt whatsoever of his real appreciation of what the mother does in respect of the parenting of this child and perhaps in one way, that explains his absolute drive and determination to be more fully involved himself in the life of the child because he wishes also to contribute as the mother has more significantly done to date, in allowing [X] to achieve all that she is able to in relation to such matters.
Whilst there are issues of criticism in relation to the father, I would have no hesitation in finding that he is absolutely devoted to his child and, in every way, would be able to meet her physical and emotional needs, other than perhaps fully appreciating the possibly serious consequences for the child of the continued dispute between he and the mother.
I turn now to the evidence of the mother in relation to this matter. The mother is employed [details omitted]. She holds a Masters qualification in [omitted] and is no doubt an extremely intelligent and capable woman. She is also in many respects an extremely capable and appropriate mother in relation to this little girl, and the observations that the father has made in respect of the mother are very much the same observations that I would make from what I have seen and read in relation to this little girl.
She is clearly a very lucky child to have the parents that she has and, at least to date, it must be recognised that much of what this little girl has been able to achieve and succeed in is as a direct result of the primary attachment to the mother and the care and capable parenting that has been provided by the mother for the child.
However, there is one area of real difficulty that arises in relation to this child and, unfortunately in my assessment, it would be if unresolved either by way of very precise orders or perhaps by way of a change of attitude of both parties, a real concern in respect of the future well-being of the child.
The mother’s early evidence in relation to this matter related to the communication, particularly email communication between she and the father. She was asked about the exchanges of emails and other correspondence and commented understandably, that much of the correspondence was excessive, that there were occasions where sometimes there were as many as three or more emails or communications received by her each day. She described them as incredibly problematic and led to problems with her not being able to agree to wishes expressed by the father, because of the staccato nature of them being directed to her.
She said early in her evidence words to the effect, “A mother can’t facilitate time each day to answer all of the queries and still have a normal life herself.” To some extent, I appreciate and accept that as a reasonable statement of the hopes and expectations that any individual might have, but of course there must also be a consideration of the other issues that arise in relation to the queries of the father. The mother made much of the fact that she was a first time mum, that she could make mistakes, and understandably, that she would wish to enjoy some of the time to be spent with her new baby and, of course, as time has gone on, her growing little girl.
But unfortunately I did gain very early on, the impression that the mother also failed to appreciate the hopes or aspirations of the father in exactly the same terms. He wanted as much involvement as he could have in the child’s life. He sought as much information as could possibly be provided in relation to this little girl but the mother’s response in many respects in that regard, was to simply see it as an annoyance on the part of the father or, even more significantly, as interference by the father in relation to her right to this relationship with [X]. It was a recurring theme and a matter that clearly troubled me in relation to the determination of these proceedings.
The mother is an intelligent and well-educated woman. A number of her answers were however evasive in the extreme or sometimes simply attempts to avoid giving answers that were going to be difficult in relation to proceedings. I do not intend to go through, at length, such matters but note for example that her own counsel in evidence-in-chief asked her about taking [X] for the first time to the doctor. She indicated that she had done so and when asked whether she had noted the father in the doctor’s records had responded, I thought rather incredibly, that she had not done so because when she had first taken the child to the doctor, he was not in Australia.
When asked again by her own counsel when she put his details on the doctor’s records she was evasive at best and avoidant at worst when she said that she had let the doctor know that the father may be seeking details in relation to the child, but did not actually answer the question as to whether she had ever placed the father’s details on the medical chart. It was troubling that from the very first occasion that this little girl was at the doctors, there was at least an indication that the mother was intending, perhaps even unknowingly, to exclude the father in relation to certain information.
He was obviously able to seek information, but understandably would have wanted his parentage of the child to be known. The mother simply could not see that that was an issue, though I must say that I repeatedly gained the impression that the mother’s attitude would have been entirely different and was entirely different when she thought that she may have been excluded from inclusion in certain records. That became clear when the father made enquiries himself in relation to a kindergarten and the mother was quite disturbed when her name had not been included on the records and that therefore any communications may not be directed to her, as well as to the father.
In fact, subsequently it became clear that the records, at least insofar as placing the child on the waiting list, as the father had done, did include the mother’s details, but there was still no concession by the mother that her response to an apparent slight of that nature was not one that could just as justifiably be taken by the father, in relation to such behaviours.
The mother also gave an answer early in evidence in chief which I thought evidenced precisely the difficulties that were experienced from the time of [X]’s birth to now, and which unfortunately continue to be experienced. She was asked about [X]’s relationship with her father. She acknowledged that it was warm. She acknowledged that the father would not act in a way that would be harmful to the child. They were positive responses but then the mother’s real issues became clear in relation to this matter when she said, “Any issues I have are not to do with the father’s parenting but mostly in his manner with me”.
It was an indication of the mother’s underlying influences in relation to this matter. It was the fact that she felt affronted by certain of the correspondence that was exchanged between her and the father, that she did not feel that she was respected appropriately as the person providing primary care of the child but it failed to recognise that there were of course two sides to be considered in relation to the matter.
The mother emphasised repeatedly during her evidence that there were issues of trust that arose, that she had never seen the father parent the child, and that she would need to be satisfied that the father was appropriately able to parent the child, notwithstanding that she had already acknowledged that the father loved the child as the child loved him and that he would not harm the child.
More particularly, she had heard the statements by the report writer which had been made at interview and which were repeated later when her evidence was taken, that the father was a capable parent, and that he was able to meet the needs of the child. The fact was that the animosity that the mother felt toward the father was the overriding influence in relation to the difficulties that continued in respect of the mother’s interaction with the father and of course, the continuing difficulties in respect of the time that the father sought to spend with the child.
The mother had been in her communications with the father just as hurtful and, as was noted by Ms L in her evidence, was certainly on occasions willing to lash out at the father if she thought that there was some slight or inconsistency in what the father proposed. There were again, as was the case in the father’s communication with the mother, a multitude of examples of that but two are referred to here simply to show the difficulties that arose from both sides, in relation to interaction with each other.
On 13 March 2012, the mother forwarded an email to the father in these terms:
“Dear [Mr Gainford], I have just found out today that a colleague who has done considerable work in the area of my research is coming to Cairns tomorrow.
It is not imperative that I meet with this person but it would benefit my work. I am not sure of what your availability is tomorrow. I understand that this is late notice but I have only had advice of this today. If you are able to care for [X] tomorrow for about 5 hours that would be great (9.45am-2.45pm). If not, then it’s not a big deal as there are other opportunities for me to video conference meetings etc.
If you could let me know your availability tomorrow, that would be appreciated. Many thanks.
The father responded about three and a half hours later on 13 March 2012 when he wrote:
I have re-arranged my work and appointments and can have [X] tomorrow as requested.
I assume the same pick up and drop off arrangements as usual will apply.
The mother responded an hour or so later and at the commencement of her email said:
Thank you. I asked you as Court orders mandate that I do. You have also previously declared in an affidavit you currently work only 40 hours a month and I didn’t expect you would have to re-arrange anything. As you constantly remind me, you want much more time with [X]. It is something I thought you would have no hesitations in doing. Again, my attendance tomorrow is not mandatory but beneficial and if it inconveniences you in any way I am happy to not attend.
The mother seemed to think that that was a perfectly understandable response. It was not. It was clearly an opportunity to attack the father. It was unnecessary when the father had simply advised that whatever he may have arranged could be re-organised, because he would obviously wish to take the opportunity to spend time with the child. The mother lashed out unnecessarily and in a manner which was totally unwarranted.
Her response when questioned about that was to simply to say that it simply showed perhaps her degree of frustration in the dealings with the father, but it was in my assessment entirely over the top and was just as clear an example of difficulties in communication as might have been obvious in many of the emails forwarded by the father.
What was troubling however, was that after giving that answer with regard to her degree of frustration the mother was not prepared to simply let that lie but had another “dig” at the father, in that she then went on to say:
I think I have been a lot more transparent than has been the father.
The mother’s attitude was one of differentiation between unpleasantness directed toward her by the father as opposed to unpleasantness directed by her toward the father. It was troubling that that should occur because again it is a reflection of the very real difficulties that exist and continued to exist only a matter of a few months ago, in relation to the simplest of requests and the most innocuous of replies that was received by one parent or the other.
The mother, I thought, was very quick to paint herself as the “victim”, in relation to the interaction between she and the father. I must say, unfortunately, from the mother’s perspective, I did not gain that impression at all. Rather, and it reflects poorly on both parents, I gained the impression that each was very quick to lash out at the other and, as I have noted previously, to draw the worst connotations that could possibly be drawn in relation to any communications between the two.
Whilst much of the communication is innocuous, and much of it has led to some form of appropriate resolution of issues between the parents, there is still a clear and underlying current of distrust existing between both of the parents and, perhaps more directly, a determination on the part of the mother to control the situation between she and the father, at least insofar as his opportunities for time to be spent with the child.
Another element of the communication between the parents that troubled me was that which had occurred some two years ago, when the father was previously represented by a solicitor, Mr Cameron. In communication of 28 April 2010, the mother emphasised in bold in an email directed to the father:
A Family Court judge will soon be assessing the case. Until that happens I am not prepared to change these arrangements.
More particularly, in communication of 31 October 2010, the mother sent an email to the father which commenced in bold:
Yes, I won’t be negotiating out of court.
It then went on however, perhaps more troublingly, to say:
It will go to a judge and [X] will know that you did this to her and to me. But please stop pretending to like me or want any civility from here on. I will share my darling daughter and her development with people that really care and I will hopefully marry one day.
The mother indicated that those comments were perhaps the result of continued pressure and distress caused to her by the father’s continued requests for more and more opportunities for time to be spent with [X]. Ms L noted when I raised the issue with her, that it was probably more an indication of the mother lashing out, than of any direct or real intent on the part of the mother to involve the child in the proceedings, or to tell the child what the father did to her and the mother, or to exclude the father from the child’s life by ensuring that she would be shared with “people that really care”.
Whilst it is an obvious explanation in relation to the matter, and both parents have much that they need to consider with regard to their interaction with each other, there is also unfortunately a recurrent theme in much of the communication by the mother with the father, and in fact I noted it during the proceedings, of a proprietary interest in the child. The mother persistently referred to “my daughter”, and in fact in the correspondence, “my darling daughter”, as well as on a considerable number of occasions in cross-examination referred to “my daughter and Mr Gainford”. There appeared to be, to me at least, a real concern arising as to the mother’s real intent in relation to the child and a real issue of control or interest in the child, which was only to be made clear as and when the mother thought it would be appropriate.
The mother had a proprietary interest in the child and continues unfortunately, I would think, to have a view that her wishes, her relationship and her decisions are the far more important and significant ones to be made in relation to the child.
The mother was cross-examined about those matters to which I have just referred arising from the email of 31 October 2010, and when asked by counsel for the Independent Children’s Lawyer, what could be inferred from the reference to “her and to me”, the mother indicated that it was an indication that she would protect her from any negativity, though she then sought to explain it by indicating that it was said, in heated circumstances.
In March of 2011, emails were exchanged between the mother and the father which were of a far more conciliatory nature. The mother was in fact asked by counsel for the Independent children’s lawyer whether there was in fact able to be inferred from the communication a hope on her part for some form of reconciliation. The mother indicated that that was not the case but rather it could be seen as hoping to keep the matter generally out of court. The mother said she hoped to arrange more time and then, rather off-handedly but I think significantly, said in evidence “it’s always about more time” and that she hoped for some kind of appeasement.
The fact here, is that the mother simply seems again to have a view, that if the father wishes more time with the child that he has such a close and loving relationship with, then that is hurtful to her and it is because of that, that there needs to be control exercised by her. The distinct impression that I gained in relation to this matter that whilst the mother on many occasions spoke of her firm view that the father had, as she put it, no respect for her at all, there was at the very least, a corresponding assessment that could properly be made that the mother had little, if any, respect for the father insofar as the importance to him of a relationship with [X], the importance to [X] of further and better opportunities for time to be spent with the father, and that there were real issues of concern about the mother’s real appreciation of the importance of this little girl having a relationship with the father.
The mother was continuously seeking to draw negative connotations in relation to the father. She suggested that the father’s objection to the child’s attendance at [P] Kindergarten was not because of other more convenient centres being available or perhaps a consideration of the fact that the child was a product of two Catholic parents and was being suggested by the mother to attend a Lutheran kindergarten, but was rather again an attempt by the father to control her.
It was an attempt she suggested by the father to sabotage her ability to work, because [P] kindergarten offered longer-term care after the conclusion of kindergarten and that the other kindergartens did not necessarily do so. The mother was unable, it would appear, or certainly unwilling to consider that the father might have just as genuinely held beliefs as she, in relation to what was in the best interests of the child.
The mother repeated in cross-examination by counsel for the Independent Children’s Lawyer, a lack of trust for the father but it went further than that I thought, when the mother was critical of the father for taking the child to local [sport omitted] games. She indicated that she was at one of the games and saw [X] there. She indicated that she had not seen other children of similar ages at the [sport omitted] and, whilst she acknowledged that it was for many people, a family event, she again couldn’t help taking the opportunity to have a “dig” at the father, by suggesting that if it were a family event, it would be one in which a child which would have been given an opportunity for an afternoon sleep before going.
The mother suggested that the father taking the child to the [sport omitted] was indicative of poor parenting. She initially suggested that that was the case but when asked about it at trial, gave I think the answer that she thought she had to give rather than the answer that was true and correct, in that she indicated that whilst she had concerns previously about taking the child to the [sport omitted] being an indication of poor parenting, she was now not of that view.
Unfortunately I do not believe the mother, but am more inclined to assess that she simply was willing now to say what might be required, in relation to achieving the goals that she sought.
The mother was unfortunately I thought, controlling in relation to the father’s time with the child. Whilst no doubt the father had pressed and pressed for more and more opportunities for time in a multitude of different ways, the mother was just as clearly determined to obstruct and cause difficulties for the father in relation to arrangements for time.
Indicative of that was a request by the father to have [X] collected by a friend on an occasion when he was away. The mother had a considerable number of reasons why the father’s friend, Ms P, could not collect the child, but in the end it came down to a lack of trust. When questioned at length in relation to that matter, the mother was finally asked about arrangements that the father had made, the suitability of his place of residence and the adequacy of care arrangements that she had known him to make, and she noted that they had been “appropriate”.
She was then asked and acknowledged that there was no reason to be concerned as to the arrangements that the father might have sought to make, particularly with regard to collection and care by Ms P, and she acknowledged that that was the case. And then when finally asked why she then didn’t agree, she said that it came back down to the issue of a lack of trust because she and the father had never parented together.
The simple fact here is that the mother would not agree to the arrangements that were proposed by the father and that it led, once again, to a heated exchange between them in writing and reinforced each parent’s view that the mother was seeking to preclude any opportunities for time to be spent, and the father was pressing the mother unreasonably for additional time to be spent with the child.
There were many matters of concern that arose in relation to the exchanges that arose between the mother and the father. There were concerns with regard to their communication with each other and their capacity to accept that the other parent might have different views in relation to what was appropriate or inappropriate in relation to the parenting of this little girl.
Whilst, as I indicated some considerable time ago, I have no doubts as to the father’s capacity to provide daily for the needs of the child, I similarly have no concerns as to the mother’s capacity to meet the various physical needs of this child. It needs to be noted, however, that whilst the father had, I thought, an underlying respect for the mother’s role in relation to the parenting of this little girl, I did not gain the same impression insofar as the mother’s recognition of the importance of the father in the life of the child.
She couched it repeatedly in terms of trust, but I am unfortunately more inclined to the view that it arises more from a desire on the part of the mother to control the circumstances existing in relation to [X] and her parenting, rather than one of simply not having sufficient information in relation to the father’s capacity.
The information and assessment particularly provided by Ms L is clearly to the effect that the father is able in all proper respects to provide for and to meet the needs of the child.
I turn now, having addressed at considerable length issues with regard to the parents of the child, to the evidence of Ms L. In that respect
Ms L has provided the two reports in relation to this matter, a little over a year apart and it’s noteworthy that Ms L’s recommendations, as contained within the second report attached to the affidavit of 3 July 2012, lean more toward additional time being spent by the child with the father. The recommendations are set out in paragraphs 86 through 99(c) of the report and are in these terms:
86. The writer recommends equal shared parental responsibility.
87. The writer does not support relocation.
88.In the event this matter requires a judicial determination, the Court may see merit in addressing the matter of relocation regardless if the matter is tabled by Mr Gainford.
89.The writer recommends [X] live with Ms Clarke and spends time with Mr Gainford.
90.The writer recommends commencing immediately [X] spends two nights a week with Mr Gainford. In contrast to the previous report, the writer is of the opinion such time should be two consecutive nights. The writer sees merit in a regime such as 9am Friday until 5pm Sunday on week one and from 9am Thursday until 5pm Saturday on the second week.
91.The writer recommends if Mr Gainford is unable to avail himself of his scheduled time with [X] that he notify
Ms Clarke at least seven (7) days in advance and if she is unavailable to care for [X] that Mr Gainford be financially liable for day care costs.
92.In the event Mr Gainford opts to reside away from Cairns, the writer recommends he be given the option of availing himself of the arrangements outlined in paragraph 90.
93.In the event Mr Gainford opts to reside away from Cairns and is unable to sustain the travel that would underpin spending the time outlined in paragraph 90, the writer recommends [X]’s time with him not exceed two consecutive nights in any one block nonetheless a more feasible yet less frequent (say two out of three weekends or alternate weekends) cycle be considered.
94.The writer recommends specific arrangements be made for celebratory dates of note ([X]’s, Mr Gainford’s and Ms Clarke’s birthday, Father’s Day, Mother’s Day and Christmas Day).
95.The writer recommends commencing 2014, [X]’s time with Mr Gainford be increased to three consecutive nights during the school holidays.
96.As of 2014, the writer sees merit in suspending the weekly arrangements to enable [X] to spend five consecutive nights with Mr Gainford during each of the April, June/July and September-October school holidays. Likewise, the writer recommends [X] to spend five consecutive nights with Mr Gainford per two week cycle during the December-January school holiday period.
97.The writer recommends when [X] is enrolled or registered with a kindergarten, school, medical or allied health practitioner that Mr Gainford and Ms Clarke be listed as [X]’s parents and next of kin. Furthermore, the parent who is enrolling/registering [X] provides their permission for the other parent to speak with the school, medical or allied health practitioner regarding [X].
98.The writer recommends prior to enrolling [X] in any extra-curricular activity that the other parent be consulted. Such consultation needs to address costs of the proposed activity and the commitment expected of each parent.
99.The writer also recommends:
(a) The mother and father will keep the other informed at all times and consult with the other prior to making any arrangements, other than that of a routine nature, in respect of [X]’s attendance on a general practitioner, medical specialist or allied health practitioner.
(b) In the case of a medical or other emergency, the parent with whom [X] is with, will notify the other parent as soon as possible, and consult with the other parent with respect to any major treatment recommended for [X].
(c) In the event [X] is required to attend a medical specialist or allied health practitioner, both parents are at liberty to attend the appointment.
Ms L however was questioned at length about the real issue of concern that arises in relation to this matter, the issue of co-parenting arising from difficulties in communication. Ms L noted at paragraph 78 of the first report of 25 May 2011, and of course it should be noted that [X] was only 2 and a half years of age at that time, that the crux of the matter related to Mr Gainford seeking to spend more time with [X] than Ms Clarke believed was developmentally appropriate. At paragraph 78, Ms L said the following:
It is evident to the writer that Mr Gainford and Ms Clarke struggle with the challenge of co-parenting. Whilst there may be a number of contributing factors, the crux of this matter is Mr Gainford is seeking to spend more time with [X] than Ms Clarke believes is developmentally appropriate. The writer notes [X] will be turning three in [omitted] 2011. Whilst research suggest regardless of parental co-operation, shared overnight care (i.e. 5 nights or more per fortnight) may be associated with adverse emotional and behavioural outcomes for the child of [X]’s age. Furthermore, research suggests a co-parenting system is more stressed when a 2-3 year old child is involved. Possible contributing factors include: prior to the age of four children require closer physical supervision and proximity is still high; personal hygiene and self monitoring and management of emotion and physical needs is yet to be achieved. Likewise, day sleeping is still common. Many of these issues are no longer applicable after the child turns four years of age.
The notation at the conclusion of paragraph 78 noted that many of the issues, particularly with regard to attachment theory and concerns with regard to separation from the primary carer, are no longer applicable after a child turns 4 and, of course, [X] turns 4 in a matter of a few months time. In particular it was noted by Ms L in cross-examination, that the child is a particularly astute and intelligent little girl and her assessment would be that whilst there might be three months or so to go before she turns 4 years of age, to all intents and purposes the assessment to be made in relation to this matter should be made on the basis of a child of at least 4 years of age.
Ms L in answers to questions directed to her by counsel for the Independent Children’s Lawyer, spoke of the surprise that she felt at the difficulties that existed in relation to communication between the parties, noting their occupations and intelligence, as well as the skills that they had in relation to communication. She simply said they should communicate much better and that obviously is an appropriate assessment in relation to the matter.
She also noted what she recorded as amazement, at how similar the parents long-term aspirations were in relation to [X] and yet that there were surprisingly significant areas of conflict over the day-to-day issues, in relation to the child. Her experience and I must say that of many practising in this jurisdiction is that it is the long-term aspirations that are more often the cause of heated debate between the parties than the day-to day issues that are far easier to resolve.
It is simply one more of the real difficulties that arise in relation to this matter that the parents can agree on the big things but take issue in relation to the little things, such as pick-up and return times, care arrangements and issues in respect of matters such as the particular day-care rather than the general expectations of day-care.
Ms L was of the view that if there was some greater certainty or particularity in respect of the arrangements with regard to each parents time to be spent with [X], then there would be a hope that there would be far less correspondence between the parents and that limitation in correspondence would lead to a reduction in the issues of dispute. Unnecessarily I would have hoped, but unfortunately it occurred in relation to this matter, Ms L felt it necessary to note that the communications between the parents should be courteous and that the parents should be mindful of the fact that when they were interacting with each other, especially in circumstances of [X] being present, that they should not engage in what she described as “a silent war”.
By that statement I assume that a child as intelligent and astute as [X] would pick up on issues of body language, of questions being asked by one parent of the other and short, sharp or even non-responsive answers being given to the other parent.
Ms L noted, as appears obvious from all of the evidence in relation to this matter, that it is the little issues that raise problems between the parties and that the communication that flows as a result of those little issues can be, as she put it, “protracted and involve a snipe at each other”. The parents should be aware of such issues. They are intelligent persons and it is troubling that such matters should continue to develop between them.
That except where otherwise specified until the child commences Kindergarten, the Father will collect the child from [location omitted] at the commencement of his period of contact and the Mother shall collect the child from the Father’s residence at the conclusion of the Father’s time with the child.
That upon the child’s commencement of Kindergarten, the changeover of the child take place, where possible at the child’s kindergarten. Where that is not possible the changeover arrangements should default to those in Order 5.
That the child commence Kindergarten in 2013 at [P] Kindergarten.
That upon the child’s commencement at school, in Cairns, the changeover of the child take place at the child’s school and if not practicable at such other location that the parents may agree upon.
That the child commence Prep in 2014 at a Catholic primary school within the Cairns Regional Council area agreed upon by both parents. If agreement cannot be reach the parents are to use the procedures set out in Order 25 to resolve the matter.
That the usual living arrangements in Order 4 continue, as relevant, throughout the whole of the year, following commencement of the 2014 school year during which the child spend time as follows:
a)the first five days at the end of Terms 1, 2 and 3 school holidays with the Father.
b)in the Christmas long vacation on an alternating basis with each parent for five days with the first five day period to be spent with the father.
c)from 2015 half of school holidays to be spent with the father for the first half in even numbered years and with the mother in the first half in odd numbered years.
That irrespective of whether the child is attending school, the Christmas School Holiday period be defined as:
a)The child’s designated school holiday period at the conclusion of term 4;
b)Commencing on the last day that the child is required to attend at school for the purposes of the previous school term;
c)Concluding on the first day that the child is required to attend at school for the purposes of the new school term;
d)Including all public holidays and pupil free days as scheduled by the school from time to time; and
e)The mid point of the holiday period be at 9.00am on the day which falls in the middle of the school holiday period.
That for the purpose of these Orders, the school holiday time to be enjoyed by the parent with the child shall be computed as follows:
a)when a parent’s time falls in the first half of the holidays, it shall commence after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be the last of that half of the holidays;
b)when a parent’s time falls in the second half of the holidays, it shall commence at 5.00pm on the day calculated to be the last day of the first half of the holidays and conclude at 9.00am on the day the school term commences;
c)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.
That the child shall spend time with the parents on special occasions as follows:
a)For the Christmas period, the child be in Cairns or Brisbane, unless otherwise agreed in writing by both the Mother and Father, and will spend time in the following manner:
i.From 2.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years with the Father and in odd numbered years with the Mother;
ii.From 2.00pm Christmas Day until 2.00pm Boxing Day in odd numbered years with the Father and in even numbered years with the Mother;
b)For the child’s birthday the child is to spend from 2.00pm, (or the conclusion of the school day) on the day prior to her birthday [date omitted], until 2.00pm on the child’s birthday [date omitted] in even numbered years with the Father and in odd numbered years with the Mother.
c)With the Father on Father’s Day (in a non-contact weekend) from 9.00am until 6.00pm with the Father to be responsible for the collection and return of the child;
d)With the Mother on Mother’s Day (if a non-contact weekend) from 9.00am until 6.00pm with the Mother to be responsible for the collection and return of the child;
e)Should the child not be in the care of the Father on the Father’s birthday, then the Father will spend time with the child from 9.00am until 6.00pm on a non-school day, however, if a school day, for at least three hours with the Father to be responsible for the collection and return of the child.
f)Should the child not be in the care of the Mother on the Mother’s birthday, then the Mother will spend time with the child from 9.00am until 6.00pm on a non-school day, however, if a school day, for at least three hours with the Mother to be responsible for the collection and return of the child.
That in the event that either parent is not able to care for the child pursuant to these Orders because of their unavailability, they shall use their best endeavors to provide the other parent 7 days notice of their unavailability to spend time with the child.
That in the event that either parent is not able to care for the child for a period longer than 3 hours pursuant to these Orders because of personal, work or other reasons, the parent shall offer the other parent the first opportunity to care for the child. Both parents shall use their best endeavours to provide the other parent 24 hours notice of their unavailability to spend time with the child for a particular period.
That in the event the other parent is not available to care for the child under the circumstances set out in Order 14 or 15 and involves an overnight, the child should spend this time with the other parent and then resume their time with the scheduled parent when they are available. Should neither parent be available to care for the child including for an overnight period then it is the responsibility of the scheduled parent to arrange and fund any appropriate care for the child by a responsible third party.
That each parent be at liberty to take the child on a holiday outside of the Local Government Area (LGA) the child resides in during their time with the child provided that if the parent proposes to take the child out of the LGA for a period in excess of two (2) days, they provide the other parent with the following information forty-eight (48) hours prior:
a)Proposed holiday destination or destinations;
b)Travel arrangements and accommodation details for the child;
c)Persons with whom the child will be staying whilst on holidays; and
d)A telephone contact number for the child whilst the child is on holidays.
That the relevant parent provide 2 months notice of any intended international travel with the child and provide:
a)Proposed holiday destination or destinations;
b)Travel arrangements and accommodation details for the child, including a copy of the itinerary as soon as it is available;
c)Persons with whom the child will be staying whilst on holidays; and
d)A telephone contact number for the child whilst the child is on holidays.
That each parent have reasonable regular telephone communication, Skype or communication via text message or email or letter while the child is with the other parent, with each parent to actively facilitate and encourage the child to speak to or otherwise communicate with the other parent.
In relation to such communication each parent shall:
a)establish and maintain Skype accounts within their respective households and keep the other advised of the particulars of the accounts.
b)Ensure that the child is available to receive the telephone call;
c)Arrange for the child to telephone the other parent on the following night, if for any unforeseen circumstance the child misses the scheduled telephone call from that parent;
d)Ensure that the child has privacy during the conversation.
That the parents authorise, by this Order, any kindergarten, daycare centre, school, medical, health, cultural or sporting providers attended by the child to release to each parent information about and discuss the child’s educational progress and/or health, other needs and related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost). That each parent provide such further written authority as may be required from time to time and inform the other of the names and addresses of such medical, health, cultural, sporting or educational service providers.
That the Mother and the Father inform each other as soon as possible, in the event of an emergency, a substantial change of health, or any substantial issue concerning the safety, health or welfare of the child while the child is in their care and provide the other parent with the name and contact details of any medical provider or other person providing treatment, assistance or care to the child.
That in the event either party is informed by a medical practitioner of the need for a specialist medical appointment then that parent shall notify the other parent within 24 hours and provide the parent with a copy of the referral and details of the appointment and invite the other parent to attend the appointment.
That during the time the child is with either parent, that parent shall:
a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
b)speak of the other parent respectfully;
c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That the process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:
a)The parents shall consult with a Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;
b)The parties shall jointly appoint a Family Dispute Resolution Practitioner;
c)In the event that the parents are unable to agree on a Family Dispute Resolution Practitioner, the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability and the Mother shall choose one of the listed practitioners within seven (7) days of receipt of the list but in the event that the Mother fails to choose then the Father shall choose;
d)In the event that the parents are unable, for any reason, to have an appointment within 30 days with the Family Dispute Resolution Practitioner or Family Relationship Centre and cannot agree on an alternative Family Dispute Resolution Practitioner, the procedure at (c) above shall apply; and
e)The parents shall pay the costs of the Family Dispute Resolution Practitioner equally.
That unless there are some emergent circumstances, before an Application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in the preceding Order.
That the Father and the Mother be restrained and an injunction is hereby granted restraining them from discussing these proceedings with the child or in the hearing of the child and both parents use their best endeavours to ensure that no other person discusses these proceedings with the child or denigrates the Mother or the Father or their respective families to or in the presence or hearing of the child.
ANNEXURE B
That all previous orders be discharged.
The child [X] born [in] 2008 live with the mother.
Parental Responsibility
Except as otherwise stated, the mother is to have sole parental responsibility for the major long term issues for the child including but not limited to:
(a)her education (both current and future);
(b)her religious and cultural upbringing;
(c)her health;
(d)her name;
(e)changes to her living arrangements that make it significantly more difficult for the child to spend time with each parent.
The mother is to advise the father in writing at least 21 days prior to making any long term decision to provide the father the opportunity to consider the decision and provide any response in writing. The final decision will be that of the mother.
Notwithstanding the provisions of order 3 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the child when they are living with or spending time with her.
(b) The Father be responsible for the day-to-day care, welfare and development of the child when they are living with or spending time with him.
(c) In the event that either parent is not able to care for the child pursuant to these Orders because of their unavailability, they shall use their best endeavours to provide the other parent 7 days notice of their unavailability to spend time with the child.
In the event that either parent is not able to care for the child for a period longer than 3 hours pursuant to these Orders because of personal, work or other reasons, the parent shall offer the other parent the first opportunity to care for the child.
Living Arrangements
The child spend time with father as agreed between the parties but failing any agreement as follows:
2012
(a) From the making of final Orders until [X] commences kindergarten from Tuesday 9.00am until 5.00pm each week and in Week One Friday from 10.00am until Saturday at 5.00pm; In Week Two from 9.00am Thursday until 9.00am Saturday;
2013
(b) When [X] commences kindergarten each Tuesday from 2.30pm until 5.00pm and in Week One Friday from 10.00am until Saturday at 5.00pm; In Week Two from 9.00am Thursday until 9.00am Saturday
2014 when [X] commences school
(c) During the Catholic Education school term and school holiday periods in 2014 each alternate week from 3.00pm on Friday until commencement of school on Monday or if Monday is a public holiday/ student free day or during the school holiday period the child will be collected by the mother at 3.00pm, with such time to be spent by the Father with the child to re-commence on the second weekend after the resumption of each school term, notwithstanding with whom the child may be spending the second half of any school holiday period.
2015
(d) During the Catholic Education school term each alternate week from 3.00pm on Friday until commencement of school on Monday or if Monday is a public holiday or student free day the child will be collected by the mother at 3.00pm, with such time to be spent by the Father with the child to re-commence on the second weekend after the resumption of each school term, notwithstanding with whom the child may be spending the second half of any school holiday period.
(e) For five consecutive nights in each of the Easter, June/July and September school holidays with the father having the first week in odd numbered years and the second week in even numbered years.
(f) For a period of five consecutive nights each alternate week during the Christmas school holiday period with the father having the first week in 2015 and each alternate year thereafter.
(g) The school holiday period commences after school on the Friday on which school concludes and each alternate Friday thereafter.
Special Days
Notwithstanding the provisions of any other orders the child shall spend time with the parents as follows:
(a)Should the child not be with the relevant parent on either Mother’s Day or Father’s Day then the relevant parent shall collect the child at 5.00pm on the day preceding Mother’s Day or Father’s Day and return the child to the other parent at 9.00am the day after or deliver the child to kindergarten or school.
(b)If the child’s birthday falls on a non school day the parent with whom the child is not living shall spend time with the child from 2.00pm on the child’s birthday until 2.00pm the next day or return the child to school. If the child’s birthday falls on a school day the parent with whom the child is not living shall spend time with the child from after school until 6.00pm.
(c)Should the child not be with one parent or other on that parent’s birthday, the child spend time with that parent from the conclusion of school until the commencement of school the next day, provided however that should such birthday fall on a non-school day then from 3.00pm on the parents birthday until 9.00am the next day.
(d)CHRISTMAS DAY:-That the mother have the child for Christmas Day in 2012 and each alternate year thereafter and that the father have the child for Christmas Day in 2013 and each alternate year thereafter. That the parent who will be having the child on Christmas Day give the other parent written notice by the 25 October as to where they will be spending time with the child on Christmas Day. Should the parent who does not have the child in their care for Christmas Day that year be in the same locality being it Cairns, Brisbane, Sydney etc then provided that parent gives written notice to the other parent by the 25 November that they wish to spend time with the child Christmas Day then they are at liberty to spend time with her from 5pm Christmas Day to 5pm Boxing Day.
Holidays
That each parent be at liberty to take the child on a holiday outside of the Local Government Area (LGA) the child resides in during their time with the child provided that if the parent proposes to take the child out of the LGA for a period in excess of two (2) days, they provide the other parent with the following information forty-eight (48) hours prior:
a) Proposed holiday destination or destinations;
b) Travel arrangements and accommodation details for the child;c) Persons with whom the child will be staying whilst on holidays; and
d) A telephone contact number for the child whilst the child is on holidays.
Communication Arrangements
That once [X] commences school the child communicate with the father at 5.30pm each Wednesday with the father to initiate the call to the mother’s phone and the mother to ensure the child is ready and available to accept the call.
At all reasonable times if the child requests to telephone the parent with whom they are not living the parent with whom they are living will assist the child to make the call to the other parent.
Each parent is restrained from monitoring, recording or listening to any communication between the child and other parent, or permitting any other adult to do so.
Changeover arrangements
Until the child attends school or kindergarten the father shall collect the child from [location omitted] and the mother shall collect the child from the father residence at the conclusion of her time with the father.
Once the child commences kindergarten or school the father shall collect the child from child’s kindergarten or school and return the child to kindergarten or school during the school terms.
The father shall collect the child from [location omitted] during school holidays and the mother shall collect the child from the father’s residence at the conclusion of the child’s time with the father.
Exchange of Information and specific issues
The mother and father shall keep the other parent informed at all times of their residential address and landline contact telephone number and provide any change in writing within 7 days of such change.
The mother shall keep the father informed of the names and addresses of any treating Medical or other health practitioners that treat the child and authorise that practitioner to provide the father with information that they are lawfully able to provide about the child at the father’s expense.
The mother shall inform the father as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This order authorises any treating medical practitioner to release the child’s medical information to the father at the father’s expense.
Each parent shall inform the other of any medical emergency which requires the child’s attendance at a doctor or medical facility when the child is in their care as soon as practicable or within 24 hours. This order authorises any treating medical practitioner to release the child’s medical information to the mother.
The Parents authorise, by this order, the Schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of School reports, Photographs, certificates and Awards obtained by the child (at the cost of the respective parent).
Either parent is at liberty to enrol the child in extra curricular activities provided it is only on days when the child is in that parent’s care unless agreed to by the other parent in writing and the parent who enrolled the child is the activity is solely responsible for the costs of such activity unless agreed to by the other parent in writing.
During the time the child is with either parent that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not discuss the Court proceedings, Court orders or any other aspects of the Court proceedings with the child or in the presence or hearing of the child;
(d)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
The Independent Children’s Lawyer be discharged.
ANNEXURE C
FINAL ORDERS SOUGHT BY MOTHER
1. The parents have equal shared parental responsibility.
2. The child live with the mother and spend time with the father as follows:.
3. UNTIL 2013:
Week 1 from 9.00 a.m. Monday until 9.00 a.m. Wednesday;
Week 2 from 9.00 a.m. until 9.00 a.m. Saturday.
4. FROM 2013 (kindergarten):
Week 1 9.00 a.m. Friday to 9.00 a.m. Sunday;
Week 2 9.00 a.m. Thursday to 9.00 a.m. Saturday
5. From 2014 (prep)
Week 1 - 3 nights;
Week 2 – 1 night
6. From 2015 (Grade 1)
Week 1 – 4 nights
Week 2 – 1 night
7. From 2016 (grade 2)
5 consecutive nights fortnight
Two (2) consecutive weeks over Christmas Holidays
8. From 2017 (Grade 3)
move to Half school holidays
9. PLAN A - CHRISTMAS
Each alternate Christmas from 5 pm Christmas Eve until 5 pm Boxing Day – with mother in 2012 and each alternate year thereafter; Father in 2013 and each alternate year thereafter.
PLAN B – CHRISTMAS
In 2012 half of Christmas Day in a location of the mothers choosing each alternate year (Cairns or Brisbane);
The child attend [P] Kindergarten commencing 2013;
Mother choose where child attend school from the following:
[H] School;
[S] School;
[M] SchoolEach parent is at liberty to choose one (1) extracurricular activity (ie: not school based activity) for child each semester (ie: no more than two (2) extracurricular activities per semester) with the parent who chooses the activity to pay for the activity. The child is to participate in that activity when in the care of the other parent.
Mother to facilitate Phone call or Skype one occasion per week when child is in her care;
When child commences spending blocks of three (3) or more nights Father is to facilitate a phone call or skype contact on one occasion whilst child is in his care.
If either parent cannot exercise time with the child pursuant to these Orders the other parent is not obliged to ‘make up’ or compensate that parent for time lost.
Handovers at child’s educational facility or [omitted].
ANNEXURE D
FINAL ORDERS SOUGHT
PARENTAL RESPONSIBILITIES
The parents have equal shared parental responsibility for the child of the relationship namely [X] (“the child”) born [in] 2008.
LIVING ARRANGEMENTS
The child live with the Mother unless otherwise provided by these orders.
Until the child commences kindergarten in 2013:-
(a)The child shall live with the Father each fortnight as follows:
i.From 9.00am Thursday to 9.00am Saturday in week 1;
ii.From 9.00am Friday to 5.00pm Saturday in week 2.
Upon the child commencing kindergarten (anticipated in late January 2013):-
(a)The child shall live with the Father each fortnight as follows:
i.From 9.00am Friday to 9.00 Sunday in week 1;
ii.From 9.00am Thursday to 9.00pm Saturday in week 2.
Upon the child commencing prep (anticipated in late January 2014):-
(a)The child shall live with the Father each fortnight as follows:
i.From after school Thursday in the first week to before school Monday in the second week.
ii.This arrangement will continue through the school term but will be suspended in school holiday periods.
(b)The child shall live with the Father in school holiday periods as follows:
i.For five consecutive nights in each of the Easter, June/July and September school holidays with such time to be taken in the first week of those holiday periods;
ii.For five consecutive nights in each fortnight of the Christmas school holiday period, with such time to commence in the first week of the holiday period.
Upon the child commencing Grade 1 (anticipated in late January 2015):-
(a)The child shall live with the Father each fortnight as follows:
i.From after school Wednesday in the first week to before school Monday in the second week.
ii.This arrangement will continue through the school term but will be suspended in school holiday periods.
(b)The child shall live with the Father in school holiday periods as follows:
i.For the second half of the Easter, June/July and September school holidays;
ii.Every second week of the Christmas School holiday period.
Upon the child commencing Grade 2 (anticipated in late January 2016) and thereafter:-
(a)The child shall live with the Father each fortnight as follows:
i.From after school Wednesday in the first week to before school Monday in the second week.
ii.This arrangement will continue through the school term but will be suspended in school holiday periods.
(b)The child shall live with the Father in school holiday periods as follows:
i.For half of the Easter, June/July and September school holidays with the Father having the first week in odd numbered years and the second week in even numbered years;
ii.For half of the Christmas School holiday period with the Father having the first week in odd numbered years and the second week in even numbered years.
For the purposes of these orders the school holiday period commences after school on the Friday on which school concludes.
SPECIAL DAYS
Notwithstanding the provisions of any other orders the child shall spend time with the parents as follows :
(a)Should the child not be with the relevant parent on either Mother’s Day or Father’s Day then the relevant parent shall collect the child at 5.00pm on the day preceding Mother’s Day or Father’s Day and return the child to the other parent at 9.00am the day after or deliver the child to kindergarten or school.
(b)If the child’s birthday falls on a non school day the parent with whom the child is not living shall spend time with the child from 2.00pm on the child’s birthday until 2.00pm the next day or return the child to school. If the child’s birthday falls on a school day the parent with whom the child is not living shall spend time with the child from after school until 6.00pm.
(c)Should the child not be with one parent or other on that parent’s birthday, the child spend time with that parent from the conclusion of school until the commencement of school the next day, provided however that should such birthday fall on a non-school day then from 3.00pm on the parents birthday until 9.00am the next day.
(d)Should the parent having the child in their care in the first half of the Christmas school holidays be in the same locality being Cairns or Brisbane as the other parent, then and in that event, the other parent spend time with the child from 2.00pm on Christmas Day until 2.00pm on Boxing Day.
HOLIDAYS
That each parent be at liberty to take the child on a holiday outside of the Local Government Area (LGA) the child resides in during their time with the child provided that if the parent proposes to take the child out of the LGA for a period in excess of two (2) days, they provide the other parent with the following information forty-eight (48) hours prior:
(a)Proposed holiday destination or destinations;
(b)Travel arrangements and accommodation details for the child;
(c)Persons with whom the child will be staying whilst on holidays; and
(d)A telephone contact number for the child whilst the child is on holidays.
The parent must provide 2 months notice of any intended international travel with the child and provide:
(a)Proposed holiday destination or destinations including a copy of the travel itinerary when available;
(b)Persons with whom the child will be staying whilst on holidays; and
(c)A telephone contact number for the child whilst the child is on holidays.
COMMUNICATION ARRANGEMENTS
The child will communicate with the Father at 5.30pm each Tuesday with the Father to initiate the call to the Mother’s phone and the Mother to ensure the child is ready and available to accept the call.
At all reasonable times if the child requests to telephone the parent with whom they are not living the parent with whom they are living will assist the child to make the call to the other parent.
Each parent is restrained from monitoring, recording or listening to any communication between the child and other parent, or permitting any other adult to do so.
CHANGEOVER ARRANGEMENTS
Until the child attends school or kindergarten the Father shall collect the child from [location omitted] and the Mother shall collect the child from the Father residence at the conclusion of her time with the Father.
The Father shall collect the child from child’s kindergarten or school and return the child to kindergarten or school during the school terms.
The Father shall collect the child from [location omitted] during school holidays and the Mother shall collect the child from the Father’s residence at the conclusion of the child’s time with the Father.
EXCHANGE OF INFORMATION AND SPECIFIC ISSUES
The Mother and Father shall keep the other parent informed at all times of their residential address and landline contact telephone number and provide any change in writing within 7 days of such change.
The Mother and Father shall keep each other informed of the names and addresses of any treating Medical or other health practitioners that treat either of the child and authorise that practitioner to provide the other with information that they are lawfully able to provide about the child.
The Mother and Father shall inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by either of the child. This order authorises any treating medical practitioner to release the child’s medical information to the Mother and Father.
Each parent shall inform the other of any medical emergency which requires the child’s attendance at a doctor or medical facility when the child is in their care as soon as practicable or within 24 hours. This order authorises any treating medical practitioner to release the child’s medical information to the Mother.
The Parents authorise, by this order, the Schools attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of School reports, Photographs, certificates and Awards obtained by the child (at the cost of the respective parent).
During the time the child is with either parent that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not discuss the Court proceedings, Court orders or any other aspects of the Court proceedings with the child or in the presence or hearing of the child;
(d)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
OTHER ISSUES
The child will attend [P] Kindergarten in 2013.
The child will attend one of the following Catholic Primary Schools as chosen by the Mother:
(a)[S] School at [suburb omitted];
(b)[H] School at [suburb omitted]; or
(c)[M] School at [suburb omitted]
Neither parent shall enrol the child in any extra curricular activities without the written consent of the other parent and each parent is to ensure the child attends any extra curricular activities in which the child is enrolled when spending with them.
The Independent Children’s Lawyer be discharged.
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