Hanlor and Hanlor

FAMILY COURT OF AUSTRALIA

HANLOR & HANLOR

[2018] FamCA 1069

FAMILY LAW – CHILDREN – where the father seeks substantial and significant time – where the mother seeks no increase in time unless recommended by psychologist ‑ where the Court finds the greatest risk to the child arises from the parental conflict created and contributed to by both parents – orders made in the best interests of the child for the child to spend substantial and significant time with the father.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

Hanlor & Hanlor [2018] FCCA 12
Goode & Goode (2006) FLC 93-286

APPLICANT:

Mr Hanlor

RESPONDENT:

Ms Hanlor

FILE NUMBER:

ADC

516

2014

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Lismore

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

18 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

Bartel And Hall

Orders

That the mother and the father have the equal shared responsibility for the child, X born on … 2009 (“the child”).
That the child shall live with the mother.
That the child shall spend time and communicate with the father during school term time, unless otherwise agreed in writing, as follows:
(a)       For the first school term of 2019:
(i)from the conclusion of school on Friday to 5.00pm Sunday each alternate week; and
(ii)from the conclusion of school until 7.00pm on the alternate Thursday.
(b)       For the second school term of 2019:
(i)from the conclusion of school on Friday to the commencement of school on Monday (or 8.30am) each alternate weekend; and
(ii)from the conclusion of school on Thursday to the commencement of school on Friday in the alternate week.
(c)       For the third term of 2019 and thereafter during school terms:
(i)each alternate weekend from the conclusion of school on Thursday to the commencement of school Monday (extended to the commencement of school Tuesday if that Monday is s public holiday); and
(ii)from the conclusion of school on Thursday to the commencement of school Friday in the alternate week.

School holiday time

That the child shall spend time and communicate with the father during school holiday periods as follows, unless otherwise agreed in writing:
(a)During the end of term four (4) 2018 school holidays the current interim order made 13 October 2015 shall continue with changeovers to occur at McDonalds, Suburb B;
(b)During the end of term one (1) 2019 holidays for a continuous period of three (3) nights (in addition to the Easter arrangements) on dates agreed;
(c)During the end of term two (2) 2019 holidays for a continuous period of four (4) nights on dates agreed;
(d)During the end of term three (3) 2019 holidays for a continuous period of five (5) nights on dates agreed;
(e)During the end of term four (4) 2019 holidays, for one (1) week in December 2019 and one (1) week in January 2020 on dates agreed;
(f)For the 2020 end of term one (1), two (2) and three (3) holidays and thereafter the holidays shall be shared equally, with the child to spend time with the father for the first half in even numbered years and the second half in odd numbered years;
(g)For the end of term four (4) 2020 holidays, the child shall spend the first two (2) weeks with the father; then the next two (2) weeks with the mother, with the balance of the school holidays to be shared equally and with the child returning to the mother by 5.00pm on the Friday before school recommences;
(h)The end of term four (4) 2021 holidays and the end of term four (4) holidays thereafter, shall be shared equally, with the child to spend time with the father for the first half in even numbered years and the second half in odd numbered years
(i)The father is, for the purpose of Orders 4(b), 4(c), 4(d) and 4(e) to give the mother not less than thirty (30) days’ written notice before the end of term, of the dates he seeks to spend time with the child for the forthcoming holidays;
(j)If the father is not able to spend any part of school holidays during any of the designated periods under this Order, then the father shall give to the mother not less than thirty (30) days’ written notice before the end of that forthcoming term, of his non-availability dates;
(k)If a dispute arises as to the agreed dates in 2019 for school holidays or any request by the father to reduce or vary the length of school holiday time the child will spend with the father, the parties, in their exercise of equal shared parental responsibility, will consult to resolve the dispute;
(l)To avoid any doubt, when the child is not spending time with the father for school holidays, the child shall live with the mother.
That the time the child spends in the care of his parents pursuant to Orders 3 and 4 hereof, be suspended to enable him to spend time with each of his parents on special occasions as follows, unless otherwise agreed between the parents in writing:
(a)At Christmas:
(i)in 2018 and each alternate year thereafter, with the father from 5.00pm on Christmas Eve until 3.30pm on Christmas Day and from 5.00pm Boxing Day to 5.00pm on 2 January 2017 and with the mother from 3.00pm on Christmas Day until 5.00pm on Boxing Day;
(ii)in 2019 and each alternate year thereafter, with the mother from 5.00pm on Christmas Eve until 3.00pm on Christmas Day and from 5.00pm Boxing Day to 5.00pm on 2 January 2019 and with the father from 3.00pm on Christmas Day until 5.00pm on Boxing Day.
(b)At Easter:
(i)in 2019 and each alternate year thereafter:
a.with the mother from the conclusion of school (or 3.00pm if a non school day) on the Thursday immediately before Good Friday until 5.00pm on Easter Saturday; and
b.with the father from 5.00pm on Easter Saturday until the commencement of school the following Tuesday (or 8.30am if a non-school day).
(ii)in 2020 and each alternate year thereafter:
a.with the husband from the conclusion of school (or 3.00pm if a non-school day) on the Thursday immediately before Good Friday until 5.00pm on Easter Saturday; and
b.with the wife from 5.00pm on Easter Saturday until the commencement of school the following Tuesday (or 9.00am if a non-school day).
(c)On Father’s Day, with the father from 9.00am to 5.00pm if that is not ordinarily a time that the child would be living with the father.
(d)On Mother’s Day, with the mother from 9.00am to 5.00pm if that is not ordinarily a time that the child would be living with the mother.
(e)On the child’s birthday on ...:
(i)if a non-school day, with the parent with whom the child did not wake up with, from 12.00pm to 5.00pm; and
(ii)if a school day, with the parent with whom the child did not wake up with, from the conclusion of school until 6.00pm.
That the child be permitted to travel interstate with each parent as agreed between the parents in writing provided that each parent gives the other no less than twenty one (21) days’ written notice and supplies the other parent with all flight and accommodation details, including a contact phone number and provided that such travel occurs during the times that the child is to live with the travelling parent pursuant to the Orders, unless agreed otherwise in writing.
That in relation to handovers that do not take place at school under these Orders, they shall take place at McDonalds located at Suburb B and during such handovers:
(a)the parents shall not approach the other parent; and
(b)shall not engage in any behaviour, either by word or action, that is likely to be provocative, hurtful or denigrating.
That each parent shall communicate with the child by telephone when the child is not otherwise in their care provided:
(a)the child initiates the call;
(b)the parent with the care of the child shall facilitate any reasonable request by the child to telephone the other parent;
(c)all calls shall be in private, unrecorded and uninterrupted.
The parents shall facilitate the child’s continuing engagement with Psychologist Ms C and shall:
(a)have liberty to provide a copy of the Reasons for Judgment delivered 14 December 2018 to Ms C;
(b)provide to Ms C any personal feedback or information reasonably requested by her;
(c)ensure the child attends all appointments scheduled or, if for any reason a scheduled visit cannot occur, ensure an alternate date is arranged;
(d)contribute equally to the costs of each session for the child and, if covered by a prescribed mental health plan, to share equally in the costs of any gap payment;
(e)be responsible for an individual appointment they attend with Ms C as requested by her.
That notwithstanding any intervention order which might be current now or in the future, each parent shall be entitled to attend and support the child when he is participating in any school event (to which parents are permitted to attend), sport or extra-curricular activity involving the child.
That without admission, the father is restrained and an injunction granted restraining the father from:
(a)consuming to excess or being affected by alcohol whilst the child is in his care, such that he would be at a level that exceeded the legal driving requirements in the State of South Australia for his license; and
(b)consuming or being affected by any illicit substance when the child is in his care.
That both parents are restrained and an injunction granted restraining each of them from:
(a)abusing or harassing the other parent in the presence of the child; and
(b)denigrating or making hurtful remarks about the other parent to, or in the presence of the child; and
(c)discussing these proceedings or other issues of adult conflict with, or in the presence of the child.
That both parents shall:
(a)immediately inform the other parent of any injury or serious illness affecting the child;
(b)communicate, other than in an emergency, with the other parent by SMS text messaging, email communication or a communication book; and
(c)when communicating with each other treat the other parent civilly and with the respect deserved as the child’s parent.
That all other applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hanlor & Hanlor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT LISMORE

FILE NUMBER: ADC 516 of 2014

Mr Hanlor

Applicant

And

Ms Hanlor

Respondent

REASONS FOR JUDGMENT

Introduction

The child X (now aged 9½ years), is the only child of a marriage between the Applicant father, Mr Hanlor and the Respondent mother, Ms Hanlor. The child’s parents separated under the one roof in July 2012 with final physical separation occurring 12 months later.
At this time the child was four years of age.
As the history set out below reveals, these proceedings have been lengthy – for which the Court accepts significant responsibility. The uncertainties that arise for the family from such delays is regretted.
After a hearing before me in Adelaide, in both parenting and property disputes conducted in the Federal Circuit Court of Australia over four days in October 2015, Reasons were delivered in respect of the financial issues on 8 January 2018 (see Hanlor & Hanlor [2018] FCCA 12). Final property alteration orders were made and the parenting proceedings were transferred to the Family Court of Australia for reasons identified below.
The procedural history which has occupied nearly half of this child’s life, is set out below. The parties sought finality and the orders which appear at the commencement of these Reasons, which the Court regards as in the child’s best interests, are pronounced with finality as an aim. As I indicate, whether that can be achieved for this high conflict couple only time will tell.
Statements of fact hereafter should be construed as findings of fact.

Contextual history before commencement of proceedings

The parties commenced cohabitation in November 2006 at which time the father was 39 years of age (born in 1967) and the mother was 25 years of age (born in 1981). The father has an adult son from a prior relationship, Mr D.
During the relationship after the birth of the child in 2009, I find the mother was devoted full time to the care of the infant child. I find the father, to the extent his work commitments permitted, was an interested and loving father, however the separation finally in July 2013 (when the child was four years of age), was acrimonious and shaped at times by the financial issues.
I am satisfied that the relationship between the parties, marked I infer by their age differences and different parenting styles, was also shaped by the mother’s concerns about the father’s behaviour, including an alleged assault of her in 2012 and claims the father used alcohol to excess and had a history of using illicit substances. All these claims by the mother were strenuously denied by the father. He also denied that he had exposed the child to pornography.
For his part, the father maintained these false allegations were raised by the mother to prevent him from spending increased time with the child, including overnight time.
It followed, with such a range of issues being raised, that the father saw commencing proceedings as necessary to ensure he was able to spend time with the child. On 13 February 2014, the father commenced proceedings in the Federal Circuit Court of Australia and his initial Application sought orders that the child spend time with him each weekend from 5.30pm Friday until 7.00am on the following Monday and each Wednesday overnight.
The mother’s initial Response filed 14 April 2014, which instigated financial proceedings as well, sought interim parenting orders for the child to live with her and spend time with the father on Tuesdays for three hours (4.00pm to 7.00pm) and the first three Sundays of each month from 10.30am to 7.00pm.
Those competing interim proceedings resulted in the first set of interim parenting orders (by consent) made 3 June 2014 by Judge Simpson essentially in terms of the mother’s Response, with handovers not taking place at kindergarten to take place at Suburb E Police Station.

Care arrangements since June 2014

The poor and ineffective communication between the parties has meant that care arrangements for the child has been regulated by Court order, with limited flexibility. Both parents were ordered to complete the “Kids R First” course, no doubt designed to assist parents to separate adult issues from considerations in the child’s best interests. Although I did not case manage this matter initially, recent evidence reveals that conflict and a deep sense of mistrust continues to exist between these parents. Without purporting to deal with every Court event, the relevant parenting orders, by way of history, appear to be as follows:
a)On 19 August 2014, the time arrangements were varied slightly with the highly prescriptive order made for all changeovers to occur at Suburb E Police Station and with the father to “undergo a breath alcohol test at the commencement and conclusion” of his time with the child. A “positive” test would result in a suspension of time for that visit. Additionally, the father was required to undertake no more than three random urine analysis tests;
b)A family assessment by Family Consultant Ms F ordered on 22 April 2014 was produced on 31 July 2014 after interviews and observations on 23 July 2014. This family report was updated for the trial. Since around February 2014, the child had been receiving counselling from Psychologist Ms G, as a result of a general practitioner referral made to her. Ms G’s involvement with the child has continued now for some years;
c)Orders made on 9 December 2014 incorporated some time for the child to spend with the father on Christmas Day; provided that counselling by Ms G is reportable and varied the earlier breath testing by removing the requirement for Tuesday testing;
d)On 1 April 2015, some movement by the parties towards different arrangements for the child were agreed to, with Reece to spend each alternate Saturday and Sunday (9.30am to 5.00pm) with the father and with changeovers to move from Suburb E Police Station to the mother’s home. Counselling with Ms G for the child was to continue. The father agreed not to take the child to his place of work when spending time with him;
e)The parties undertook interviews with Ms F on 21 August 2015 which resulted in a report dated 25 August 2015. The parents agreed to provide the report to Ms G;
f)Relevantly, and for the first time, on 2 September 2015 the mother sought and obtained a State Intervention Order;
g)At the conclusion of the trial on Friday, 9 October 2015, I identified a need to consider interim orders to progress the matter pending written submissions being delivered as to final orders. Final written submissions (in respect of both property and parenting issues) were filed by the mother on 22 December 2015 (by the mother’s Counsel Mr McQuade). Delays were experienced to receiving the father’s final written submissions, which were received on 18 March 2016 (from the father’s Counsel Mr Richards);
h)On 13 October 2015, after hearing submissions, the following interim orders were made by the Court:
1.That the parties have the equal shared responsibility for the care of the child [X] (“the child”) born on … 2009.
2.That the child live with the husband as follows:-
a.As and from the date of this order, each Tuesday from the conclusion of school on Tuesday until 5.00pm;
b.From the conclusion of school on Friday 16 October 2015 until 1.00pm on Saturday 17 October 2015;
c.From the conclusion of school on Friday 23 October 2015 until 5.00pm on Saturday 24 October 2015;
d.From the conclusion of school on Friday 30 October 2015 until 5.00pm on Saturday 31 October 2015;
e.As and from Friday 13 November 2015, for the first three of each four weekends thereafter from the conclusion of school on Friday until 5.00pm the following Saturday, SAVE FOR Friday 13 November 2015, when the husbands time will commence at 3.00pm on Saturday 14 November 2015 and conclude at 5.00pm on Sunday 15 November 2015; and
f.Live with the wife at all other times.
3.That the time the child spends in the care of the parties pursuant to paragraph 2 above be suspended to enable the child to spend time with each of the parties at Christmas in 2015 as follows:
a.With the wife from 4.00pm on Thursday 24 December 2015 until 4.00pm on Friday 25 December 2015; and
b.With the husband from 4.00pm on Friday 25 December 2015 until 4.00pm on Saturday 26 December 2015.
4.That all handovers that do not take place at the child’s school, take place inside the [Suburb H] Police Station until such time as the [Suburb E] police station reopens, SAVE AND EXCEPT that the handover that takes place at the conclusion of the child’s swimming lesson on Tuesday, shall take place inside the swimming centre.
5.Without admission, the husband be restrained and an injunction granted restraining him from:
a.Consuming alcohol to excess 12 hours prior to or during any time that he spends with the child; and
b.Taking any illicit drug.
6.That on a maximum three (3) occasions, the wife be at liberty to request at handover that the husband submit to an alcohol breath test in the event that the wife has good reason to suspect that the husband may be affected by alcohol.
7.That the injunctive Orders at paragraph 1.6 of the Orders made on 19 August 2014 be dismissed.
8.That the injunctive Order at paragraph 1.7 of the Orders made on 19 August 2014 do continue.
9.That the parties and the child shall continue to engage [Ms G] in accordance with her recommendations.”
The orders provided for the child to continue to engage with Ms G and provided for the child to commence overnight time, with a regime of after school Friday until 5.00pm Saturday for the first three of each four weekends to apply from Friday, 13 November 2015.
i)Although neither parent sought leave, whilst judgment was reserved, to reopen to adduce further evidence, as I indicated in my property Reasons for Judgment, I refrained from making final parenting orders until the parties considered whether they wished to adduce further evidence of relevant events in the child’s life since October 2015. Both parties, through their legal representatives, indicated on 9 January 2018 that they desired to place further evidence before the Court, and reserved the right to seek to cross examine the other party once they had seen the further evidence. As a result, on 9 January 2018, the alive parenting application was transferred to the Family Court of Australia – with its first listing before me (as a Judge of the Family Court of Australia) being on 9 February 2018;
j)On 9 February 2018, the Court noted the mother’s Affidavit filed 25 January 2018 and the father’s Affidavit filed 30 January 2018. Both Affidavits raised new issues, perhaps unsurprisingly. In any event (with both Counsel indicating no request to further cross examine the other parent), directions were made for leave to the mother to file a further Affidavit strictly in reply and any supplementary written submissions;
k)In accordance with these directions, the mother filed a further Affidavit on 27 February 2018. The solicitor for the mother procured a brief report from Ms G dated 29 March 2018 annexed to his Affidavit filed 3 April 2018. Supplementary written submissions were filed on behalf of the father on 27 April 2018 and on behalf of the mother on 18 May 2018;
l)That was not the end of the processes however. On 18 May 2018, the mother filed an Application in a Case seeking an order for the child and the parties “as may be required engage with psychologist [Ms C]”. The mother further sought an order that “any consideration of an extension of the father’s existing time with the child be in accordance with [Ms C’s] recommendations regarding that”. The mother also sought a change of venue for changeovers (when not taking place at school or swimming centre) to Suburb H Police Station. The father in response sought the Application in a Case be dismissed. After hearing brief argument on 18 July 2018, the Court ordered the child and the parents, as may be required, engage with Psychologist Ms C to provide therapeutic support for the child, with the costs of counselling to be reserved to final judgment. The counselling is to be non-reportable. I was satisfied a change of Psychologist from Ms G, as indicated by her in her report of 29 March 2018, was desirable. Regrettably, the Affidavits filed by the parties in support or in response to the mother’s Application in a Case continue to allege that the parental conflict continues to occur. Again, the evidence of the parents is untested.

For completeness, I record that the parties relied upon their trial Affidavits but no other witnesses on the parenting dispute save for the following who were the subject of cross examination:
a)Ms G, the child’s therapist; and
b)Ms F, the report writer.

Statutory principles to be applied

In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Competing proposals

The father continues to maintain the orders sought as set out in his Counsel’s written submissions, which are set out in Appendix One to these Reasons. Essentially the father sought increasing time over 12 months to a level of five nights a fortnight in a configuration of:
a)each alternate weekend from after school Friday (or 3.00pm) until the commencement of school Monday (or 8.30am); and
b)each week on Thursday overnight.
The mother set out in her Affidavit filed 25 January 2018 (at paragraphs 21.1 to 21.8 her final orders, however in lieu or addition, as her written submissions filed 18 May 2018 make clear, she seeks a variation on changeovers and the engagement of Ms C. The appointment of Ms C was confirmed by the interim order made 18 July 2018. It is noted that the first consultation with Ms C was to take place on 10 August 2018. For clarity, the orders now sought on a final basis are annexed to these Reasons, as Appendix Two.
In short, the mother opposes any increase in time for the child with his father, unless it is in accordance with Ms C’s recommendations.
I made it clear on 18 July 2018, that I would regard it as an impermissible delegation of judicial power, in a final order at least, to make an order vesting any expert with a power to define parenting arrangements. Of course, it would be hoped, in the best interests of the child, that parents who engage in therapeutic support for their child, would consider any recommendations of an expert. However, in this case, where it seems each parent takes different messages from therapy and where the father continues to assert that the child behaves differently in his home to that of his mother, the Court must make final orders doing the best it can. I do find it concerning, at one level, that the mother cannot apparently see any benefit in the child at his age spending more time with his father – where time has basically stood still for three years. As I explore below, I cannot ignore the likelihood that the child is well aware of his parents’ competing positions, and it makes it very difficult for him to tell each parent his true feelings and wishes. I also note that the mother does not propose any extended or holiday time for the child.

Family report

As noted, the Court had the benefit of two family repots prepared by social worker and Family Consultant Ms F. Ms F was the subject of cross examination.
The first report prepared from interviews conducted on 23 July 2014 contains significant historical material and whilst helpful, was in my view superseded to a degree by the report prepared 12 months later and dated 25 August 2015.
Much of that report was the focus of cross examination, although having had the opportunity to observe and assess the parties 12 months apart gave Ms F a longitudinal perspective. Sadly, Ms F opined (at paragraph 54) that:
… it was evident that the parties had made no improvements on their working relationship, trust or communication on children’s issues. Each continued to blame the other for this. This lack of major improvement was considered unfortunate, given both parties had engaged attentively with [Ms G[ from [J Group] for some time now, and would be expected to have insight into the important of this for the child.
In my assessment, on all the evidence, this opinion (which I accept) sets the context for the decision I am required to make – namely a child who is being required to navigate entrenched negative views each parent has for the other and which, at least since the incident at the mother’s home in May 2015, has further engulfed the child in the parental conflict. The effect on the child is more fully examined when considering the evidence of Ms G, his therapist, next.
With this unsatisfactory environment created by the parents, which the more recent evidence since the trial was completed establishes little improvement, it is hardly surprising that the evidence of the report writer was directed to how it might be possible to shape by Court orders, a better outcome for the child. In that respect, from the report and cross examination of the report writer, I choose to record the following matters:
a)Both parties described to Ms F a “lack of trust in the other, and a sense of a lack of control” (paragraph 14). As a result, if the parties were able to shift their proposals more to the “middle” then this would mean they would both “feel some ownership in the result”. As already identified, the parents’ position has not significantly altered even after a period of overnight time was ordered to commence in October 2015;
b)The mother, in her interviews, maintained that the father was caught drinking alcohol less than 12 hours before contact visits; smelt of alcohol on at least five occasions at changeover; continues to drive with the child in the car affected by alcohol; returned the child from the father’s care with “urine soiled pants” and “hungry, thirsty and with cracked lips from licking his lips”. The mother felt it necessary following the interviews, to email the Expert to report that “the majority of the time the child was returned late to her care”. The interview was consistent with the mother’s case advanced before me – highly critical of the father – sometimes (not referring to concerns about alcohol use) making trivial complaints – for example the failure by the father to buy the child a lunchbox or having too much sugar in his diet. I accept the evidence of the report writer that the child is well aware of what the mother thinks of the father;
c)The father, in his interview, generally denied or explained the criticisms and said the mother was “clutching at straws” to support her claim to the Court as the child has “never gone without” in his care. The father’s explanation when the child was left in the car at his work for “less than half a minute”, differs greatly from the mother’s reaction to receiving a call from the child, she claims when he was hysterical. In my view, the truth probably lies somewhere in between;
d)The father was not reluctant to share with Ms F criticisms of the mother’s parenting, even though he told the report writer (at paragraph 27) that “he was confident the child was well cared for” in the mother’s care. This “tit for tat” reaction by both parents was, in my view, a feature of the parental relationship;
e)The parents offered to Ms F their perspectives of the child’s emotional needs (see paragraphs 29 to 37) and it is clear that they assess him differently. The mother stated the child was a “sensitive boy” whose emotional needs are not being met in his father’s care and that, at that time, “the bond still isn’t there”. In this respect, the report writer in cross examination opined that she felt the child had a stronger attachment to the father than “ambivalent”. The mother was reporting things the child said to her, to support her views about the inadequacy of the father’s care which she is not in a position to observe;
f)The father’s observation of the child in his care, was not that of “an anxious child” and he did not feel that he needed ongoing therapy. Overall, the father has more robust interactions with the child, consistent with my assessment of his personality style, and dismisses concerns the child has allegedly made that he does not like “rough play”. Certainly the child seemed confident enough to confront the “class bully”;
g)I think it is very likely the child, in trying to manage his parents by, at times telling each of them what he may perceive they want to hear. The parents have revealed, because I find of their antipathy for each other, a capacity to react negatively. This is a finding consistent, although not precisely opined, with the evidence of Ms F, although she conceded the child could be showing different behaviour in each household;
h)I deal with the mother’s concerns that the father represents a risk because of alcohol misuse (at least) later when discussing s.60CC(2)(b) of the Family Law Act 1975, however in circumstances where I believe the father, whilst being a person who enjoys alcohol and has on occasions overindulged, is not an unacceptable risk to the child, the evidence and recommendations of the report writer are relevant and should be given weight in my view;
i)At paragraph 61, the expert opined that the solution is not to “reduce the child’s time with his father” but rather a trial period of overnights with the father commence. This opinion was founded, ideally, in the hope the parties would:
i)continue to work with Ms G on issues identified by her; and
ii)continue to work on improving their co-parenting relationship.
In circumstances where a different therapist for the child has now been engaged, and where I am not satisfied the parents genuinely and in a sustained effort, have worked on improving their relationship, the recommendations of Ms F should be seen in this context – some three years after they were offered to the Court.
Overall, the evidence of the report writer was cognisant of the ongoing therapy/counselling by Ms G but supported continued expansion of the child’s time with the father – not a stagnation or a reduction, as the mother proposes. The pace of increase is now very much a matter for the Court’s discretion. Certainly, at the time of the report, the expert was concerned that changeovers preferably take place at school and where that is not possible, a safe location.
I share the concerns of Ms F about a Police Station being an appropriate venue. Whilst I accept that the child has, for much of the post separation period, experienced changeovers at or near a Police Station, to do so at his age now, in my view:
a)provides the parents with an easy way for them to abdicate their parental responsibility. This child is old enough to walk from one parent to another without the parents interacting; and
b)gives the child a poor message about his parents’ relationship (even if partly correct) and the proper use of a Police Station.
Frankly, the parents should just contain their emotions and behaviour, considering it is now over six years from when the adult relationship ended. If they are not able to do so, they may benefit from more individual therapy.

Evidence of Ms G

Whilst a report from Psychologist Mr G dated 18 March 2015 was before the Court (see Annexure “TNH 10”), a more recent report dated 29 March 2018 is more relevant, in my view.
Certainly at the time Ms G was cross examined during the trial in October 2015, the child had consulted Ms G 10 times in 2014 and seven times in 2015, commencing 17 February 2014 arising from a referral by the child’s general practitioner. As her recent reports clarify, after those 17 visits, further consultations occurred:
a)In 2015 – a further three times;
b)In 2016 – 11 times, broadly monthly;
c)In 2017 - four times, with Ms G indicating there was a pause in therapy in the middle of 2017 due to disagreements about whether therapy was necessary and who would fund the same.
The last visit occurred on 13 December 2017 with Ms G. Seen in this context, before dealing with the report dated 29 March 2018, the evidence at the hearing (from the first report and her cross examination) was broadly as follows (remembering that the child was only six years of age at the time):
a)At the time of the trial, Ms G’s evidence was that the child “presents consistently as vulnerable” and found it difficult to “separate from his mother” and at times his behaviour is “emotionally deregulated”;
b)The reports by the parents during therapy about the child’s behaviour, were different and seemed to echo what they said to Ms F as set out above;
c)Ms G raised some reservations as to “how much weight to place on the child reports/some aspects of his behaviour may be helpful, because given [Ms Hanlor’s] concern for [the child], she may struggle at times to adopt the matter of fact/normalising approach that will most benefit the child”. I accept this cautionary approach to the child’s reports;
d)The child who prefers “play therapy” to “talking therapy” and is very good at avoiding questions he does not wish to answer. However at the time he was indicating he would like more time with his father, although the child at times sees his father as angry and frustrated. Ms G observed the father as frustrated with the Court process; and
e)At the time Ms G was aware the father was not convinced therapy was required, but also that he “needs to accept the complexities of [the child’s] behaviour” and be willing to take on board advice regarding how to manage and support the child.
In recommending the continuation of therapy for the child, Ms G opined that because of the child’s awareness of the conflict and his exposure to each parent’s reactions, words and conduct, if nothing changes his “potential for reaching his potential is poor”.
From the position at the time of the hearing, the only reliable further evidence (noting no notes of the therapy were produced or subpoenaed), is the most recent report of Ms G. This report needs to be seen in the context of the father losing, it seems to me, some confidence in Ms G. My impression is that after so many visits, he felt that more improvement in the child’s “vulnerability” could be expected. The mother continues to seek “guidance” and direction, reflected in her final orders sought and the power she seeks to vest in the counsellor – now Ms C.
As the new report is short, yet untested, I record its contents as below:
It took [the child] time to form a therapeutic relationship with me and be comfortable opening up about his thoughts and feelings. When there were longer gaps between appointments I would need to spend time re-establishing trust/confidence. That being said, over time the therapeutic relationship has continued to strengthen. However, actual progress has been impacted by ongoing disagreements about [the child’s] need for therapy.
My assessment of [the child] is that he is a sensitive young boy, who has been exposed to significant conflict between his parents, and possible domestic violence, both pre- and –post separation (depending on what the Federal Circuit Court finds, and what the Magistrates Court finds with regards to the allegations of the Intervention Order having been breached).
I am of the view that when last seen [the child] continued to demonstrate symptoms of anxiety (e.g., clingy behaviour, avoidance behaviour, excessive worrying, hypervigilance – the child demonstrates a startle response to unexpected noises, etc.). In the last few sessions [the child] also impressed as having a significantly flat mood, a possible indicator of depression.
[Ms Hanlor] reported that the child continued to display a range of emotionally reactive behaviours, such as being excessively sad, and/or clingy. [Ms Hanlor] also reported that the child continues to experience some difficulty with wetting, and he had developed a rash around his mouth because of a habit of licking his lips that she considered anxiety –related.
In terms of other areas of vulnerability for the child, I note by way of background that the child had some coordination difficulties and speech difficulties in the past, and in late 2017 [Ms Hanlor] advised that [the child] was soon to be assessed by an educational consultant through the school, due to issues around concentration and reading comprehension.
In my opinion [the child] requires ongoing psychological support to help him manage the symptoms of anxiety, and now possible depression, and manage the stress of living between two homes in the context of a highly acrimonious relationship between the parents. Unfortunately I have been not able to offer that this year, nor am I able to explain the reasons for this.
I am not sure as to whether I can be the person to offer the child ongoing support, if the Court supports this recommendations. While it would be of benefit for [the child] to have continuity in who he sees, given a number of factors, again some of which I am currently unable to detail, it may be that the time has come that [the child] needs to see a psychologist, who has had no part in the legal proceedings.
I would also recommend that orders regarding who and how therapy can be accessed for the child are very specific, to reduce the risk of an ongoing dispute about this, as has occurred with my involvement, and as noted above, hampered progress and the child’s access to therapeutic support.”
The concerns raised by Ms G are indeed troubling. Yet, as I will return to the critical issue below, the parents continue to focus on the certainty of their view about the cause of the child’s troubles – the other parent – without adequately understanding that the solution probably lies in their hands to modify their behaviour. This is something they have shown they are unable to do.
At least at one level, I speculate, whether it is not the child who should be in therapy, but rather whether each parent needs therapy to enable them to accept and have insight into their behaviour and contribution to the ongoing, unrelenting conflict.
I will consider the competing proposals within the matrix of the relevant primary considerations (s.60CC(2)) and additional considerations (s.60CC(3)) and in so doing I rely upon but do not necessarily repeat the findings already made above in these Reasons.

Primary considerations

I find, and the parents’ competing proposals suggest, that the child will benefit from having a meaningful relationship with both his mother and his father. The meaningful relationship is rarely “optimal” if it is created in such a high conflict environment. It is more than the number of nights or days the child spends with a parent. Courts, when shaping orders, are alert to the risk that it is not possible to achieve a “meaningful relationship” for one parent in isolation generally from the relationship with the other parent.

Section s.60CC(2)(b) requires the Court to give consideration to the need to protect the child from “physical and psychological harm from being subject to, or exposed to, abuse, neglect or family violence”. I begin my discussion of this critical issue, with my finding that I am satisfied that the greatest risk to the child arises from the parental conflict created and contributed to by both parents. Although I will deal with other risks asserted which are relied upon, at this boy’s age this conflict must stop or the damage to his sense of self; his identity and his confidence could be damaged further with long term adverse effect. Sadly, orders cannot of themselves stop parental conflict. Only parents can do that. It serves no useful purpose to attempt, somewhat artificially, to apportion “blame” for the conflict. At times, I am satisfied the father has provoked the mother (and continues to do so by simply at times being late for changeovers, which I accept has occurred) and the mother has provoked the father by not genuinely supporting time increasing for the child with his father (relying always it seems on “experts”).
I deal with the range of other issues that could, if they exist, create a risk to the child within the meaning of s.60CC(2)(b), namely:
a)Father’s alcohol use. The father has, in the past at times drunk alcohol to excess and been convicted of driving a motor vehicle under the influence of alcohol. As a result, very strict conditions as to breath analysis and urine analysis were made by the Court. There is no evidence of any breach of those Orders offered by the mother, and as a result, when the 13 October 2015 interim orders were made, many of those conditions were relaxed. Although the mother alleged, at times, the father in the past attended changeovers “smelling of alcohol”, I am not satisfied he was under the influence of alcohol at those times in breach of the Order.
The mother’s concern, and her desire to collect evidence if possible (she says to protect the child), is demonstrated by paying for a private investigator to conduct surveillance of the father to ascertain whether he drank alcohol less than 12 hours before a contact visit. On one occasion she asked Police to make sure the father did not drive when he said he was walking home from school with the child. He did walk home. The father says he uses alcohol responsibly when the child is with him. There is no convincing evidence to the contrary over the last few years. In the circumstances I am satisfied the final orders will prescribe that the father be restrained from using alcohol to excess whilst the child is in his care. I do not regard it as now necessary to impose conditions on the father about his conduct 12 hours prior to visits. For completeness, although the father admits casual use of illicit substances years ago, I am satisfied that this is not a continuing pattern of behaviour. I find the mother is “hyper vigilant” and as she holds little trust in the father, I find it difficult to accept that she would allow visits to occur if, as she claims, at changeovers he was affected by alcohol.
b)Parents’ denigration of each other. I am satisfied both parents have on occasions made denigrating or hurtful remarks about the other parent to, or in the presence of, the child. This is a manifestation of their ongoing conflict. The mother has at times reacted, understandably, to some hurtful remarks by the father and has shown her distress by crying. This sensitive boy would empathetically feel for his mother at such times. He did witness the angry incident in May 2015, which Ms G says, and I accept, distressed the child. It is likely the child has a sense of trepidation if the parents are coming together. These occasions, likely to increase in the future as both will be entitled to attend his school and sporting events to support him, could be the opportunity for the parents to “role model” politeness and courtesy. These traits, I am sure his parents would demand of him. They should reveal their capacity to do so themselves.
Of the other issues raised during the hearing and since, many are frankly trivial and merely demonstrate the different parenting styles around disciplines, diet, sleeping times etc. As Ms G observed, the child can be difficult to manage. Both parents have their way to do so in their home – although differently. No unacceptable risks arise from their personally preferred strategies.

Additional considerations

I am prepared to accept the father’s recent evidence that the child tells him he wishes to spend more time with him. The child enjoys going to the rural retreat at K Town. His father is an active father (when the child is with him), and although the mother is more emotionally attuned to the child, the male identification the child is undertaking at his age of development is well catered for by the strong male role model the father presents. I do not accept that the child “hates his father”, as he has in the past uttered. So much of the child’s behaviour has to be seen in the context of the boy trying to manage his parents’ conflict.
The child’s primary relationships are his mother and father. His history of care reveals the mother has been the primary carer for his life and naturally the child feels very bonded and comfortable with her. However the increased time since October 2015, which under the orders I pronounce will increase further, continues to strengthen the child’s bond with the father. There is no doubt that both parents deeply love the child. He knows that to be true. Yet he will in time understand that parents make mistakes and say things they ought not say. I am not satisfied the mother is alienating the child from the father – although I accept from the father’s perspective her inability to negotiate extended time might be seen by him as much. Rather, I see it as a highly protective mother trying to juggle what she feels are the best outcomes for her sensitive son, whilst not trusting the father to meet his emotional needs.
The mother says the father has failed to avail himself of the opportunities to spend time with the child under the Orders on a number of times – citing work issues. The poor communication and effect of the intervention order made in September 2015 have created hurdles to communication by telephone. At his age, it is important the father demonstrates to the child, that he is a priority in the father’s life. Children are able to understand the fact that working parents have work commitments. Not every parent works 9 – 5 hours. The father has, all his life, demonstrated a strong work ethic. That is a good value for the child to observe – but not at the risk of disappointing the child who no doubt looks forward to spending time with his father. The father gave evidence of the flexibility in his work obligations. He needs to consistently reflect that in ensuring observance with Court orders. If he does not do so, the likely result is that the child may express excuses not to spend time with his father. Because of the age of the child, there is no longer a need, in my view, to over prescribe how the father shall spend time with the child (e.g. not taking him to work). Such orders are only likely, in this family dynamic, to cause the child to be put under pressure to report to the mother where he goes and what he does.
As I set out below, I am strongly of the view that the father’s time with the child should increase and include holiday periods. The child needs to explore, from the stability offered by the mother’s household as primary carer, more opportunities to share times and the lifestyle with the father. I regret the delays that have occurred in progressing this time which has not been optimal. However as he approaches his tenth birthday, the child is able to engage with the father more fully without, in my view, putting his emotional wellbeing at risk – hopefully with the conflict between the parents subsiding so as to give him a chance to enjoy the times without feeling disloyal to his mother, or being required to choose his favourite.
The father offers financial support as is necessary and there are no real practical difficulties in spending time.
I have, in these Reasons, already made findings about the parents’ attitude to the responsibilities of parenting and their capacity to parent. I adopt those findings for the purposes of the consideration of s.60CC(3)(f) and (i).
I note the intervention order made 2 September 2015 (see Annexure “TNH 11”) but it is unclear to me whether the intervention order is still in existence. The orders I frame are assuming it is, such that conditions about coming into contact with the mother are not likely to cause a breach of the order (it having been varied on 1 November 2017 permitting texting). I note that the child is not named as a protected person. In the more recent Affidavits, the mother and father gave their versions of proceedings for breach of the intervention order, when the father pleaded guilty and was placed on a good behaviour bond for six months. Clearly the father’s conduct was inappropriate, but this seems an isolated occurrence which, of itself, does not persuade me that future changeovers need to occur at a Police Station. Having received one conviction of a breach of the intervention order, the father would be well aware that any further convictions will seriously increase the penalties. More importantly any failure to show respect to the mother, capable of founding an allegation that he breached the intervention order, will distress the child and be an example of poor role modelling.
The Court is required to consider making an order that is least likely to lead to further proceedings. Frankly, although more prescriptive orders will be made, the key to these parents getting on with parenting the child somewhat cooperatively, lies in a reduction in the overt conflict. I have said much about that issue in these Reasons. If the conflict and acrimony continue, this child is likely to be the focus of further proceedings – to his detriment I am certain.

Parental responsibility

Both parents seek an order for equal shared parental responsibility, and I am satisfied that both should be engaged and consulted on any long term decisions about the child. They both have the capacity to add value to those important discussions. I will make an order for equal shared parental responsibility.

Form of time and conditions

Neither party suggested that it is in the best interests of the child that an equal time order be made. I agree it is not in his best interests or reasonably practicable at this time to so order.
However, the use of the communication book and capacity to communicate by text message now allowed by the variation to the intervention order, makes a form of substantial and significant time reasonably practicable and in the child’s best interests based on my earlier findings. As defined by the Act, such orders will progress quickly to include school term time, holiday time and special occasions.
Whilst I accept that Ms C is now engaged, I will not be making an order for the experienced therapist to dictate how future parenting arrangements occur. Leave will be given to allow the parties to provide a copy of these Reasons to Ms C. In respect of the costs of counselling for the child, as I find both parents have contributed to the problems the child is facing, I regard it as appropriate that both share equally in the costs (or nett costs) of counselling. I make such an order conscious of the likelihood the father is still in a stronger financial position than the mother.
The progression in the orders are designed to build on the arrangements that have been in place for the last three years with some momentum.
From the start of the new school year in 2019, the child’s weekend time with the father shall increase in two steps. I will order that after approximately six months the time again increases, with a block of four nights (Thursday to Monday) and one overnight on Thursday in the off week. Where possible, changeovers at school should occur, but for the rare occasions that it not take place at school, I select the McDonalds, Suburb B as a conveniently located public venue.
The father’s proposals for school holidays do not allow for him to spend time with the child at regular school holidays. The father’s only proposal related to the Christmas school holiday period. In my view, from the start of the 2020 school year, considering the increased time the child will be spending during school terms with the father (and noting he says he has flexibility in his work arrangements), the child should spend half of all end of term one, two and three holidays and two blocks of one week with the father at the end of year school holidays. If the father is unable to spend these holiday periods with the child (and I accept neither party seemed to deal with this issue in their proposed orders), then he is to advise the mother not less than one month before the holidays are to commence, that he will spend his share of the holidays with the child. The orders I make so provide, but allow during the 2019 school year, for the father to spend graduating increasing school holiday periods with the child. The evidence before the Court does not give me the confidence to predict when the child might benefit and cope with an overseas holiday. The Court would not like an impression to be formed, by not making an order for overseas travel at this time as the father proposes, that it wishes to restrict appropriate travel overseas. Simply, at this time issues such as the likely destination; length of travel and arrangements to maintain contact with the non-travelling parent are not the subject of any evidence. Furthermore, although I believe the child will enjoy the extended periods of time with the father from 2020, it is too speculative to know how such increased time occurring overseas might suit the child, depending on his other commitments at that time (and aged 11 years). Of course, the parents’ consent for the child to leave Australia is required. There is no evidence he even has a passport. The parties should in the future be able, in the child’s best interests, to agree on suitable arrangements for a trip if financially possible, and if not an application to a court might be the only alternative.
The other conditions in the orders find a foundation in the reasons, save for many usual orders that have been part of the past orders or are merely (and hopefully) likely to provide a clear definition of what the parents are expected to do.
For these reasons, I find the orders at the commencement of these Reasons are in the child’s best interests. It is my genuine hope that the parents are now able to “lay down” their weapons of parental conflict and support their son in reaching his potential as a well-functioning and well-adjusted young man.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 14 December 2018.

Associate:

Date: 14 December 2018

APPENDIX ONE

That the husband and the wife have the equal shared responsibility for the care of the infant child X R (“the child”) born on … 2009.
That during school terms the child lives with the husband as follows:
a)In the first week after the date of the final Order:
i)from the conclusion of school on Friday until 5:00pm the following Saturday;
ii)from the conclusion of school until 7:00pm on Thursday.
b)Thereafter, until three (3) months from the date of the Final Order:
i)from the conclusion of school on Friday until 5:00pm the following Sunday;
ii)from the conclusion of school until 7:00pm on Thursday.
c)As and from three (3) months from the date of the Final Order, for four (4) nights a fortnight as follows:
i)each alternate weekend, from the conclusion of school on Friday (or 3:00pm) until 5:00pm the following Sunday and each alternate week thereafter;
ii)each week, from the conclusion of school on Thursday (or 3:00pm) until the commencement of school the following Friday (or 8:30am).
d)As and from twelve (12) months from the date of the Final Order, for five (5) nights a fortnight as follows:
i)each alternate weekend, from the conclusion of school on Friday (or 3:00pm) until the commencement of school the following Monday (or 8:30am) and each alternate week thereafter;
ii)each week, from the conclusion of school on Thursday (or 3.00pm) until the commencement of school the following Friday (or 8.30am) and lives with the wife at all other times.
NOTE:
Whilst the husband at Trial sought for his time pursuant to paragraphs 2(a)(ii), 2(b)(ii), 2(c)(ii) and 2(d)(ii) be (or commence) on Tuesdays, the husband has instructed that he wishes to transpose those same times (in accordance with the recommendations of Ms F) to Thursdays, to accommodate him being able to take the child to sports practice after school each Thursday.
That during the Christmas school holidays at the conclusion of Term 4 each year, the child lives with the husband for a period of one (1) week as agreed between the parties in writing and in default of agreement from 5:00pm 2 January to 5:00pm on 9 January.
That the time the child spends in the care of his parents pursuant to paragraphs 2 and 3 above, be suspended to enable him to spend time with each of his parents on special occasions as follows, unless otherwise agreed between the parties in writing:
a)At Christmas:
i)in 2016 and each alternate year thereafter, with the husband from 5:00pm on Christmas Eve until 3:30pm on Christmas Day and from 5:00pm Boxing Day to 5:00pm on 2 January 2017 and with the wife from 3:00pm on Christmas Day until 5:00pm on Boxing Day;
ii)in 2016 and each alternate year thereafter, with the wife from 5:00pm on Christmas Eve until 3:00pm on Christmas Day and from 5:00pm Boxing Day to 5:00pm on 2 January 2017 and with the husband from 3:00pm on Christmas Day until 5:00pm on Boxing Day.
b)At Easter:
i)in 2016 and each alternate year thereafter:
A.with the husband from the conclusion of school (or 3:00pm if a non-school day) on the Thursday immediately before Good Friday until 5:00pm on Easter Saturday;
B.with the wife from 5:00pm on Easter Saturday until the commencement of school the following Tuesday (or 9:00am if a non-school day).
ii)in 2017 and each alternate year thereafter:
A.with the wife from the conclusion of school (or 3:00pm if a non school day) on the Thursday immediately before Good Friday until 5:00pm on Easter Saturday;
B.with the husband from 5:00pm on Easter Saturday until the commencement of school the following Tuesday (or 8:30am if a non-school day).
c)On Father’s Day, with the husband from 9:00pm to 5:00pm if that is not ordinarily a time that the child would be living with the husband.
d)On Mother’s Day, with the wife from 9:00pm to 5:00pm if that is not ordinarily a time that the child would be living with the wife.
e)On the child’s birthday on …:
i)if a non-school day, with the parent with whom the child did not wake up with, from 12:00pm to 5:00pm;
ii)if a school day, with the parent with whom the child did not wake up with, from the conclusion of school until 6:00pm.
f)On the husband’s birthday on …:
i)if a non-school day, with the husband from 12:00pm until the commencement of school the following day (or 9.00am if a non-school day);
ii)If a school day, with the husband from the conclusion of school until the commencement of school the following day.
g)On the wife’s birthday on …:
i)if a non-school day, with the wife from 12:00pm until the commencement of school the following day (or 9:00am if a nonschool day).
ii)if a school day, with the wife from the conclusion of school until the commencement of school the following day.
h)Any such other times as may be agreed between the parties in advance in writing.

That the child be permitted to travel interstate with each parent as agreed between the parties in writing PROVIDED that each parent gives the other no less than twenty one (21) days written notice and supplies the other parent with all flight and accommodation details, including a contact phone number AND PROVIDED that such travel occurs during the times that the child is to live with the travelling parent pursuant to the Orders, unless agreed otherwise in writing.
That the child be permitted to travel overseas with each parent as agreed between the parties in writing PROVIDED that each parent gives the other no less than sixty (60) days written notice and supplies the other parent with all flight and accommodation details, including a contact phone number AND PROVIDED that such travel occurs during the times that the child is to live with the travelling parent pursuant to the Orders, unless agreed otherwise in writing.
That in relation to handovers:
a)From the date of the Final Order, all handovers shall occur at the Suburb H Police Station reverting to Suburb E Police station upon it reopening.
b)As and from three (3) months from the date of the Final Order, all handovers shall occur at the child’s school save for the handover at 5.00pm on Sundays that shall occur at the McDonalds located at Suburb B.
The child be at liberty to contact the non-residing parent via telephone at his request.
The parties and the child continue to engage with Ms G, as per her recommendations.
Without admission, the husband is restrained and an injunction granted restraining the husband from:
a)consuming alcohol to excess twenty four (24) hours prior to or during any time that he spends with the child;
b)consuming any illicit drug;
c)exposing the child to any drugs, drug use, drug paraphernalia or guns (actual or replica).
Both parties are restrained and an injunction granted restraining them from abusing, harassing and denigrating the other parent to, or in the presence of, the child, or permitting anyone else to do so.

APPENDIX TWO

That the Husband and the Wife have equal shared parental responsibility for X born on …09.
That the child spend time with the Husband as follows:
a)On the first two occasions of the date of the final Order on each alternate weekend from 4.00 m on Friday until 5.00pm on Saturday.
b)In each alternate week from the conclusion of school until 5.00pm on Tuesday.
c)Thereafter for a further 12 months:
i)On each alternate weekend from 4.00pm on the Friday until 5.00pm on the Sunday.
ii)In each alternate week from the conclusion of school on Thursday (or 4.00pm if not a school day until the commencement of school the following Friday) or (8.30am if not a school day).
d)That during the June school holidays commencing June 2016 for two nights from 5.00pm on the Friday until 5.00pm on the Sunday.
e)That during the September school holidays commencing September 2016 for three nights from 9.00am on the Friday until 5.00pm on the Monday.
f)That during the Christmas school holidays commencing 2016/2017 for an additional four nights in December and an additional five nights in January at times to be agreed between the parties.
In 2015 and in each alternate year thereafter the child spend time with the Husband from 4.00pm on Christmas Day until 4.00pm on Boxing Day and with the Wife from 4.00pm on Christmas Eve until 4.00pm Christmas Day.
In 2016 and each alternate year thereafter the child shall spend time with the Husband from 4.00pm on Christmas Eve until 4.00pm on Christmas Day and with the Wife from 4.00pm on Christmas Day until 4.00pm Boxing Day.
From 9.00am to 5.00pm on Father’s Day on the proviso that if then in the Father’s care the child spend time with the Mother from 9.00am to 5.00pm on Mother’s Day.
That the father spend time with the child for a period of 2 hours on the child’s birthday for school day and for a period of 5 hours if not a school day.
That the father spend time with the child for a period of 2 hours on the Husband’s birthday for school day and for a period of 5 hours if not a school day on the proviso that if the child is in the Father’s care on the Wife’s birthday the Father shall return the child to the Mother for a period of 2 hours if a school day and 5 hours if not a school day.
That the father spend time with the child at such other times as the parties agree.
That the Father’s time with the child shall be conditional upon:
a)The Father refraining from consuming any alcohol or any illicit or nonprescribed drugs for the period spanning 24 hours prior to the commencement of the Father’s time until the end of the Father’s time.
b)That in relation to handovers from the date of the final Order all handovers save those occurring at swimming shall occur at the Suburb E Police Station if open and at the Suburb H Police Station if not open or such other place as may be agreed.
The parties and the child further shall continue to engage with Ms G according to her recommendations and at the cost of the husband and shall both engage with such therapy or counselling as she may recommend.
The parties shall keep and utilise a communication book.
That the child live with the Wife.
That each party facilitate the child telephoning the other whilst in their care.

[2018] FamCA 1069

14 December 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies