Henb and Awling

FAMILY COURT OF AUSTRALIA

HENB & AWLING

[2009] FamCA 927

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT:

Mr Henb

RESPONDENT:

Ms Awling

INDEPENDENT CHILDREN’S LAWYER:

Westminster Lawyers

FILE NUMBER:

MLC

13138

2007

DATE DELIVERED:

24 July 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

1-4 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Applicant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Coleman

SOLICITOR FOR THE RESPONDENT:

Coleman Lawyers, Level

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Westminster Lawyers

Orders

IT IS ORDERED

That all existing parenting orders in relation to the child … born … October 2002 shall be and are hereby discharged.
That the father shall have the sole parental responsibility for the child.
That the child shall forthwith live with the father.
That the child shall spend time with and communicate with the mother as follows:
(a)On each alternate week-end from Friday at the conclusion of school until Monday at the commencement of school, starting on 31 July 2009;
(b)On each Wednesday in the other week from the conclusion of school until Thursday at the commencement of school, starting on 5 August 2009;
(c)During the Term 2, 2009 holidays in accordance with the regime in paragraph 4(a) and (b);
(d)Commencing the third term school holidays in 2009, for one week in each school term holidays, as agreed, but failing agreement, in the first week;
(e)In the 2009 summer holidays, for two separate weeks as agreed, and failing agreement, for one week commencing 27 December 2009 and one week commencing 17 January 2010;
(f)Commencing in the 2010 summer holidays, for one half of the summer holidays, as agreed, but failing agreement, for the first half in odd years and the second half in even years, save that in even years the child shall be returned to the father’s home no later than two clear days prior to the commencement of Term 1 in the next school year;
(g)By telephone on Tuesday and Thursday, with the father to facilitate the child telephoning the mother and communicating with her, at 7.00pm;
(h)On 24 December at 4.00pm until 25 December at 1.00pm in odd years and from 1.00pm on 25 December until 5.00pm on 26 December in even years, but if the child is with her mother in the first half of the holidays then she shall be returned to her father for Christmas from 24 December at 4.00pm until 25 December at 1.00pm in even years and from 1.00pm on 25 December until 5.00pm on 26 December in odd years;
(i)On the chld’s birthday as follows:
(i)     If on a school day, for three hours from the conclusion of school;
(ii)    If on a week-end when she would otherwise be with her father, for four hours, at times agreed, but failing agreement from 1.00pm until 5.00pm;
(iii)   If on a week-end when she is already with her mother, then her time with the child shall be suspended for four hours, at times to be agreed, but failing agreement from 1.00pm until. 5.00pm;
(j)On Mother's Day from 9.00am until the commencement of school the following morning, and should Father's Day occur on a week-end when the child is with the mother, then her time with the child shall be suspended from 9.00am on Father's Day; and
(k)As otherwise agreed in writing; and
(l)Save as set out in paragraph 4(c), during school holiday time paragraph 4(a) and (b) shall be suspended and shall resume at the start of the new school term on the week-end in which it would have occurred had it not been suspended.
That any change-over that does not occur at the child’s school shall occur outside the F Police Station.
That the father shall keep the mother informed without delay in relation to all decisions made by him in relation to the child’s health, religion and education and wherever possible consult with her in relation to such issues prior to making any decisions concerning same.
That the father shall forthwith authorise the child’s school to provide to the mother at her expense if any, with any printed information including photos that the school normally provides to parents in relation to their child’s social and academic progress.
That the father shall forthwith arrange confidential therapeutic counselling for the child with Dr W or such other person as advised by her and for the period advised by her, and that the mother is restrained from taking the child to a child psychologist, therapist or counsellor without first obtaining the written consent of the father.
That the mother, her servants and agents shall be restrained from attending the child’s school for any activities (unless there is prior written agreement by the father) on any day other than when she is to collect her pursuant to these orders.
That the father, the mother, their servants and agents, shall be restrained as follows:
(a)From denigrating the other, or any member of their family, to or within the hearing of the child; and
(b)From discussing these proceedings with or within the hearing of the child.
That the parents shall forthwith exchange landline and mobile telephone numbers and keep each other informed of any changes.
That all existing proceedings shall be otherwise dismissed.
That the ICL shall give a copy of my reasons for judgment to Dr W who is requested to explain the orders to the child.
That after Dr W has explained these orders to the child, she shall be removed from the child-minding room of this court by her father.
That the appointment of the Independent Children's Lawyer shall be dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Henb & Awling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13138 of 2007

MR HENB

Applicant

And

MS AWLING

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The subject child is 6½. She has lived with her mother since her parents separated at the end of 2003, when she was 14 months’ old. Her parents have litigated over her for years. In June 2008 they agreed to final orders that provided for shared parental responsibility, and for the child to live with her mother and spend substantial and significant time with her father. Sadly, within just months, the arrangements fell apart.
This round of litigation started in December 2008 when the mother applied for a Recovery Order, and a suspension of the orders for the child to spend time with her father. Cronin J dismissed her applications.
The mother claims, as she did before the last proceedings, that the child is sad and distressed at the prospect of spending time with her father, and cannot cope.
The father says that if the child is sad and distressed, she is responding to her mother’s sadness and anxiety about contact with him, but she readily settles and is relaxed and happy in his care. There is support for his account in the detailed Family Report.
In her application, the mother sought sole parental responsibility and that the child’s time with the father be dramatically reduced to daytime only and on just one day per week. Following receipt of the Family Report, she then sought orders for shared parental responsibility and for the June 2008 orders to be mainly continued, so the child would spend every second week-end, one overnight in between, and half school holidays with her father.
The father’s case is that the child should live with him, as the mother’s anxiety is impacting adversely on the child’s health and well-being. He says her relationship with him will continue to be undermined by the mother, and in her care, the relationship will never be permitted or supported.
The ICL supports the father’s position. He points to the fact that although the mother now says she agrees to the child spending extended periods with her father, she shows no sincerity in that regard and certainly no indication that she has shifted in her staunchly held views that the child is distressed, unsafe, and cannot cope.
The parties agree that I should determine the substantive issues, which will include whether or not there has been a change of circumstances, rather than considering a change of circumstances as a preliminary issue.

BACKGROUND

The father, Mr Henb, is a 31-year-old teacher. The mother, Ms Awling, is aged 37 and is engaged in home duties.
There is some conjecture as to when the parents’ relationship started and finished. On any view, it was relatively short. The child was born in October 2002, and her parents did not live together for very long before or after that.
The father married his current wife Mrs Henb about three years ago. They have two children, J who is aged 2½ and N who is aged 4 months.

MATERIAL RELIED UPON

The mother relied upon the following documents:
a.Her Amended Application filed 22 April 2009
b.Her affidavit filed 22 April 2009
c.The affidavit of her sister Ms P filed 12 May 2009.
The father relied upon the following documents:
a.His Response filed 24 December 2008
b.His affidavit filed 15 May 2009
c.The affidavit of his wife Mrs Henb filed 15 May 2009
d.The affidavit of his father, the paternal grandfather, filed 15 May 2009.
The father represented himself. I ensured at the start of the hearing that he received a copy of relevant sections of the Family Law Act 1975 (as amended). He conducted the proceedings intelligently and thoroughly, and was assisted by reasonable concessions of counsel, for example to enable him to cross-examine after the ICL, so that he could better understand how to frame questions.
The ICL relied upon the two Family Reports of Dr W, dated 17 March 2008 and 26 May 2009. He also called the child’s GP, Dr D, who gave evidence by telephone.

RELEVANT LEGAL PRINCIPLES

Part VII of the Family Law Act was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act.
Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below.
Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. It can be rebutted. I shall return to that below.
The court is then required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)). It is not proposed by either parent in this case.
If the Court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA(2)(c)).

THE ISSUES

The issues can best be determined under the umbrella of the various s 60CC considerations. I will first consider the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Both parents claim that the child needs a meaningful relationship with each of them. The genuineness of that claim, and their ability to promote the relationship, lies at the heart of the case and must be considered in detail.
It is clear that the child has a meaningful relationship with her mother. She lives with her and is primarily attached to her.
It is also clear that the child’s relationship with her father is very important to her. Although counsel for the mother seemed to concede that in final submissions, and in evidence the mother had purported to acknowledge the need for the relationship, her evidence overall was to the contrary.
The father says that the child has a meaningful relationship with him, and the expert evidence supports that. However, the mother is adamant that the child has consistently complained about having to see her father, and that she is sad and distressed at the prospect. She also claims he is physically and verbally abusive to the child. I need to consider where the truth lies, and analyse the cause of any anxiety and distress shown by the child.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
This consideration too is at the heart of the case. If the mother’s account is to be believed, the father and his family are “cruel” to the child. The mother says that he was emotionally and physically abusive to her during the relationship, and that he treats the child in the same way. She has referred to him slapping the child across the face, and calling her “a little shit”. She talks of him leaving the child with his parents for extended periods, and of his parents treating the child as “a slave”, making her clean, cook, and do other housework despite her young age.
If true, the behaviour would be abusive. And, if it has been the mother’s genuine belief, and remains so, it is hard to understand why in June 2008 she agreed to orders for the child to spend so much time with her father, and why she agrees again now. Her excuse that she did not have legal representation in June 2008 did not impress as a reasonable one, particularly as she did consult the duty lawyer that day. In any event, that excuse cannot apply to her current proposal. She is legally represented this time.
The father denies the mother’s allegations and says that he and his family have a close and loving relationship with the child, and he would not harm her or permit her to be harmed. The observations of the Family Report writer, Dr W, of the child with her father, and the child’s talk of her enjoyment of spending time with him, support his account.
The father’s concern is that the child is at risk of psychological harm from the mother’s anxiety and reinforcement to her that her father is bad, that she should not enjoy her time with him, and that her mother is very sad when they are apart. Again, there is support for that concern in the Family Report.
I shall discuss the detail below when it comes to the following additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The mother’s version is that the child is always very distressed at the prospect of spending time with her father. She swore (at para 27 of her affidavit):
If my daughter was happy to attend the respondent’s I would not have any problems with her spending time with the respondent. I would be happy. However, I am very concerned as [the child] always cries and becomes anxious and distressed before and after contact with the respondent. [The child] begs me to keep her at home.
She said that the child made it very clear to her after the June 2008 hearing that she did not like what had been agreed. The mother swore (at para 31):
[The child] was very distressed and not settling with this agreement. [The child] has expressed to me her concerns including, ‘Mummy why do you send me there?’, ‘Do you love me?’, ‘It’s too long for me mummy’, ‘It’s too hard for me mummy’, ‘Why do you take me there?’.
In her affidavit, the mother went on to say that the child had told her that “she wishes the respondent was invisible and doesn’t like him”. At the same time, she swore that the child complains that she is predominantly cared for by the paternal grandparents and that the respondent does not even spend time with her.
She said that the child does not like staying in the paternal grandparents’ home as there is no one to play with of her age, and there are no toys. She said (at para 37):
[The child] grabs her head while she tells me her Grandmother ‘makes her head go round and round’. I am concerned that [the child] is being forced by the paternal grandmother into their Arabic culture. All of the respondent’s siblings have had arranged marriages apart from the respondent. The respondent’s sister was not allowed to wear make-up or go out, all she did was wait until a suitable husband was found for her from Lebanon.
The mother swore that she does not want her daughter brought up like that, or to have the paternal grandmother and father as role models. She swore (at para 38):
…[the child] has told me that she does not want to cover her body, serve coffee or clean ovens as she is forced to do whilst with the respondent and his family.
The mother swore that the child wants to “be with her mother”. She said that the child has told her that she is sent to her room for crying for her mother, and that she is very upset to call the father’s wife “mum”. She swore that the child complains that she is “sad” because “they are mean to me” and “they don’t let me call you mummy.” She says the child reports that they call the mother a “drunk”, and tell the child that her mother does not love her or care about her.
Overall, the mother says that the child cries and is very sad to leave the home and be without her. She says that the child complains that “It’s too hard for me” or “Why do I have to go back and forth?” or “Why do I have to go there?” and “I don’t even like it.”

The father denies the mother’s allegations of mis-treatment of the child by him or his parents. He refers to the fact that these are the same as the allegations made by the mother in the past, and that although she then agreed to the child spending substantial and significant time with him, the allegations have continued since then.
He emphasises that his parents are good people who love their granddaughter. Allegations of “slavery” and such are absurd. He talks of his strong bond with the child. He talks of a little girl who has a happy and loving involvement in his family, and is an adored and adoring big sister to her half-brothers J and N. He talks of her close relationship with his wife Mrs Henb, who has known the child since she was two, but that the stepmother in no way tries to take her mother’s role.
Dr W has prepared two Family Reports, one in early 2008, the other one just before this hearing. It means she met the family on five occasions. Recently, the child told her that she enjoyed seeing her father, and wanted to continue to see him, but she wanted to stay with her mother more. Dr W wrote (at para 29):
…And she again interacted very positively with her father. So overall, she presented as being less anxious about spending time with her father, and her relationship with him appeared stronger and more stable, but she still expressed concerns about being away from her mother, although these concerns were easily addressed with her, and the writer gained the impression that she continues to mirror her mother’s anxiety about seeing her father on the mid-week days, as it had been hypothesised in the previous report.
Dr W continued that, based on reports by the child and the father, although the child appears to become anxious and distressed about going with her father on days when her mother attends the school at lunchtime to see her or when her mother is present, after a short time with her father she calms down and actually appears to “really enjoy herself”. Dr W said that it seems that when she goes back to her mother she becomes upset again. The child said to her “When I go back to mum’s I get sick always because I miss her a lot.”
The child told Dr W that she enjoys spending time with her father, her stepmother, and her half-brothers J and N. She said “she had fun there” and enjoys seeing her grandparents (although not staying over at their house all the time) and her cousins. She told Dr W that her father and the stepmother “were always nice to her”.
The child herself denied many of the allegations made on her behalf by her mother. Dr W reported that the child said her father never slaps or hits her. In her report, Dr W noted that the child said he never slapped her “now that she is bigger”. When questioned about it in court, Dr W explained that the child had added that her father never slapped her at all. The child also denied that her father had ever told her that she could not bring her suitcase to his house (an allegation made by the mother and one that she said upset the child a great deal), just that it was not necessary for her to bring casual clothes as he had them at his house as well. The child herself referred to an incident in October 2008, to which I shall return, when she was crying at school at the prospect of going to her father’s home, described by her mother as “a breakdown”. The child told the report writer “I got over it and I was fine”.
The child reported that neither her father nor her grandparents have ever said anything to her about having to cover up or wear a head-scarf when she gets older, or about whom she might marry. When asked if she ever wet the bed after returning from her father’s (as the mother claimed), the child laughed and said she had not wet the bed since she was a baby.
As to the child’s interaction with the stepmother and J and N, Dr W noted (at para 38):
[The child] was also observed interacting with [the father’s] partner [Mrs Henb], and this was again very positive, with [the child] appearing to be animated, talkative, confident, and secure in her presence. [The child] was also observed with her half-brothers [J] and [N], and she appeared to have a particularly close relationship with [J] although she seemed to enjoy mothering or bossing him around. She also appeared to enjoy helping with baby [N].
Dr W summarised the child’s feelings (at para 36):
In short, whilst [the child] reported that she did not want to reside with her father because she would miss her mother too much, she reported that she loved spending time with her father, and she even became a little jealous when her father paid more attention to [J] than her.
Dr W said that the child had “a very positive, strong, and stable bond with both her mother and her father”, and that both interacted with her “positively and appropriately.” There was however an exception when it came to the child’s relationship with her mother. Dr W referred to the mother talking to her in front of the child about the child not being truthful to Dr W. Then she “repeatedly” told the child she needed to be truthful, and acted in such a way “as to cause [the child] to become upset and anxious”.
That observation and Dr W’s concern that the anxiety expressed by the child responds to and mirrors her mother’s anxiety, shall be discussed in further detail below. The concern about the mother’s influence is an important aspect in considering the child’s expressed views.
I shall also bear in mind that the child is described as a perceptive, intelligent child. However, I cannot overlook that she is very young.
(b)the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)   other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(f)the capacity of:
(i)     each of the child’s parents; and
(ii)   any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
These matters overlap in this case.
Each parent (and the step-mother) can provide for the child’s daily needs. They can care for her intellectual and educational needs. The issue is about her emotional needs.
The child has always lived with her mother and is very attached to her. She is doing well in most aspects of her development, schooling, and friendships. The concern is that she exhibits a degree of attachment that precludes her from being able to openly enjoy her relationship with her father, and it is impacting severely on her daily life. On her mother’s account, the child’s anxiety is on such a scale that she has been physically unwell, required a great deal of medical attention, needed psychological counselling, and missed significant schooling, due to her distress surrounding time with her father.
If those things have occurred, it begs the question as to whether the child is suffering because she has to see her father, or because her mother places her under such emotional stress that she feels pressured against enjoying the time with her father, and anxious about her mother’s sadness surrounding her spending that time with him. What is troubling is that there is evidence (to which I shall return) that suggests the mother promotes the child’s anxiety, and exaggerates it in her account.
The mother says that the father is violent and abusive to the child, just as he was violent and abusive towards her (the mother) in the course of their relationship. He denies both. As to violence in the adult relationship, she is supported by the evidence of her sister Ms P.
Ms P was an unimpressive witness. I cannot rely on her evidence. She was strongly partisan towards her sister, and she displayed an unattractive prejudice towards the father and his family, despite her protestations that she was “not a racist”.
Ms P had sworn that it was “inappropriate” for the child to be raised “according to Lebanese culture” (as she claimed the father’s family wanted) and she should be brought up “according to Australian values”. When pressed in oral evidence as to what that meant, she said she was concerned about “grooming”, claiming that the child was “not allowed [by the paternal grandparents] to expose any skin.” She was concerned that the child had returned to her mother “doing provocative dances” like a “mature-aged belly dancing woman”. And at the paternal grandparents’ home, the child was “exposed” to Arabic news and current affairs “24 hours per day”. In addition, she was “subjected” to their “very high pitched form of communication”.
I am satisfied that Ms P’s account (and the mother’s in this respect) is ignorant, ugly, and as it happens, factually incorrect. The Henb family are Lebanese Christians. The paternal grandfather has lived in Australia for more than 40 years. References to any pressure on the child to be covered, let alone veiled, or married off, are absurd. The father himself has chosen two partners now. Mrs Henb, his wife, like the mother, is not Lebanese. Mrs Henb appeared in court in what might be described as regular day-wear, not unduly covered, and certainly not veiled. There was nothing to suggest any strictures on her as to how she dressed.
I accept the father’s evidence that he and his siblings have not been raised in the restrictive way suggested by the mother. I accept that his sister is a highly educated woman who has worked around the world and has lived independently. That is quite unlike how the mother or Ms P portrayed her.
As to the mother’s claim generally as to the father’s violence and abuse towards her, I cannot make a definitive finding. He has consistently denied any physical abuse of the mother. There were no formal complaints or proceedings during the relationship. The father consented to an intervention order soon after separation. It was never breached. It has expired.
I can say that I am satisfied that it was a volatile relationship. The bitterness between the parents is a testament to that. So was what I regard as the very honest evidence of the paternal grandfather who, when living opposite, observed the police being called to various volatile arguments to which both parents contributed. The father himself readily conceded such arguments.
The mother complains that the father has slapped the child. He vehemently denies it. I do not accept the mother’s evidence. I have already noted that although Dr W’s report that the child said her father never slaps or hits her “now that she is bigger…”, raised the spectre he had hit her when she was smaller, Dr W clarified that in oral evidence. She said she asked the child about that, and she denied that her father had ever hit her. Dr W also spoke of the level of comfort and security that the child exhibited in her father’s care. There appeared to be no basis for a concern that he was violent or abusive towards her.
The evidence persuades me that any anxiety exhibited by the child surrounding time with her father is as a result of her mother’s anxiety, rather than her own fear or anxiety about spending time in her father’s household. I am satisfied that the child has a loving relationship with her father, enjoys spending time with him, loves her paternal grandparents, does not spend excessive time in their care, has an appropriately fond and close relationship with her step-mother, and has a normal love and affection for her two little half-brothers.
I am also satisfied that despite that, and whether by design or default, the mother is committed to the view that it is bad for the child to be in her father’s care, that she is not properly treated or cared for, and that she cannot cope. It seems that it is in fact the mother who does not cope when separated from, or at the prospect of being separated from, the child. This plays out in a number of ways that are adversely affecting the child’s well-being.
First, the mother’s attendances at the child’s school appear to be excessive. She is heavily involved in school activities. I am not critical of her for that. Such involvement is frequently welcomed in primary schools. However, although the mother claimed that she only had lunch with her daughter at school on several occasions, or took her home for lunch on several other occasions, her evidence was vague and unimpressive. I conclude she intruded more often at lunchtime.
Although the relevant witness from the child’s school could not be located by the ICL, so I have not heard their direct evidence, Dr W noted that the school had suggested to her that the mother “had her own agenda”, and her actions in removing the child from school on many occasions when the father was due to have time with her, was a manipulation of court orders. The school reported to Dr W that the mother showed extreme anxiety about separating from the child on occasion at school, to the extent that she was the only mother who still carried the child into the school grounds last year, not because the child was anxious or upset, but because, according to a worker at the school, the mother is “absolutely besotted” with the child and still considers her as her “baby”.
The mother has taken the child to the doctor 27 times in the past 12 months. The doctor, Dr D, said it was “definitely” more than one would expect for a normal healthy child. He described the child as not particularly unwell, that is, a normal child in the sense that she gets the “normal bugs” that children of her age get at school.
The mother has frequently obtained medical certificates to cover the child’s absence from school, although she has had only a minor health issue. The concern is that the child has been taken for many medical appointments, in order for her mother to garner material with which to justify keeping the child from time with her father, not because medical attention has always been needed.
Although the mother’s case was that she had generally not interfered with court orders, there are three recent occasions that prove to the contrary. She has failed to make the child available for three of the seven or eight mid-week contact periods in the 2009 school year, claiming ill-health on the child’s part. On each of those three occasions, she took the child to the doctor. The doctor gave evidence that, medically, there was no reason why the child could not have gone to her father’s home. She was not so ill as to warrant being kept at home, or away from her father.
The doctor’s evidence obviously put a lie to the mother’s claim that the child was simply too ill to go. And, although the mother was admonished by Cronin J after the December 2008 hearing, and reminded by his Honour in February 2009 of the need to comply with orders, she did not do so. It is unimpressive that she has been embroiling the child in the medical system in order to interrupt the time she spends with her father.
Twice, the mother has unilaterally decided to take the child to see a psychologist for the purpose of obtaining a report to the effect that she should not be spending time with her father. The mother claims that she took the child in order to seek assistance for her. The fact that she did not involve the father in the process, together with the timing and the nature of the reports, count against what she claims.
The first report was dated 14 January 2008, and was written by a psychologist, Ms M, who saw the child twice. It was obtained by the mother just days before the case was due to go on before Senior Registrar FitzGibbon, on 17 January 2008.
By the time of the second report, the mother should have been aware from the previous proceedings that a report obtained by one party was not considered an appropriate way to involve the child. Still, she sought a referral within just a few months of consenting to the orders in June 2008. Ultimately, she did not see the therapist recommended by her GP. Her explanation as to how she chose the subsequent “therapist” was not compelling. She said she rejected the therapist proposed by her doctor because when she rang the receptionist it “seemed like a busy clinic” and she wanted more “one-on-one” counselling. However when she finally took the child to a psychologist, some months later, it was not for therapy or counselling. She sought a consultation followed by a report, from a counsellor who should have known better than to make far-reaching recommendations in a complex Family Court case on the strength of meeting only the mother and child. Cronin J was rightly critical of the report when he dealt with the matter between December 2008 and February 2009.
The mother tried to justify this report in terms of not only the child’s on-going distress from the time of the June 2008 orders, but particularly from what she described as the “break-down” experienced by the child at school in October 2008. This was the occasion when staff at the school needed to comfort the child as she was crying and upset, purportedly about going with her father for overnight time due to start that afternoon. The child herself spoke of the incident with Dr W. Her account was consistent with the father’s version of events. She said her father told her it was his time and he wanted her to come with him. It was apropos this incident, as noted above, that the child volunteered to the Family Report writer that while she was crying at first, she “got over it and was fine”.
Some weeks then passed without the father seeing the child for the mid-week time. He said that he cancelled one period as he and his wife were not available, but that thereafter the mother withheld the child. I found him honest in most respects, but I believe the mother on this score, when she said that they agreed to a “trial period” without the mid-week overnight contact. Although the father claimed that his references in SMS messages to the mother to “the trial period” were references to “something else”, he could not recall what. That undermined the reliability of his evidence on this point.
In any event, it is apparent from the same text messages that, within just several weeks of not seeing his daughter mid-week, he advised the mother that the trial period was over. Nevertheless she continued to withhold the child. What the mother attempted to portray to the court on 22 December 2008, in her ex-parte application for a Recovery Order and suspension of time with the father, did not convey the whole story.
On about 18 December, the father had collected the child from school to start her holiday time with him. He admitted to using “self-help”, in arriving at school early to collect her. In the context, I am not critical. He had experienced an on-going problem with the mother removing the child early from school, or keeping her home, on days when he was due to collect her. I accept his evidence about that. In addition, the mother had unilaterally “suspended” his time with the child leading up to that holiday period.
I note here that the mother’s evidence was extremely unimpressive about the “suspension” she had imposed. I could not regard her evidence as truthful or reliable. She said she stopped the child spending time with her father, that is she stopped compliance with the court orders, because she had received “legal advice”, and “advice from DHS” to do so. She produced no evidence in that regard. Her evidence was vague and evasive. It made little sense. She claimed she obtained advice from a number of different legal sources, via Legal Aid, and via names supplied by the Law Institute. She could not explain why she needed to obtain advice from more than one source. She could not recall any names or give any details of people from whom she had received the advice. Although she kept meticulous notes about other issues relevant to her daughter and this case, she apparently had no notes or documents about the purported advice.

I am satisfied that the mother simply made the unilateral decision to stop the father’s time with the child. When she brought ex-parte proceedings, Cronin J made it clear to her that the father needed to be served. After he heard from both parties, his Honour was critical of the mother and of her conduct.
The child’s own observations to Dr W were very telling. They cast light on her experiences. Although she said she wanted to stay with her mother “more”, she spoke positively about her time with her father and how she enjoyed it. When the child expressed concerns about being away from her mother, Dr W found that her concerns were “easily addressed”, and a lot of her anxiety or sadness was inter-related and overlapping with that of her mother.
As noted above, Dr W said that the child appeared to become anxious and distressed about going with her father on the days when her mother attended the school at lunchtime to see her, or when her mother was present, but that after a short time with her father she settled and really enjoyed herself.
The child told Dr W that “when I go back to mum’s I get sick always because I miss her a lot.” Dr W noted (at para 33) that the child reported that whilst her mother never told her not to go to her father’s house, she thought her mother “gets sad”, because “I get sad too…and I miss her a lot.” The child described that her mother:
…feels sad…she feels like crying…and so do I…but we stay strong because we know that my dad is going to have time with me.’.
The mother was cross-examined about her own feelings surrounding the father’s time with the child, and the impact on the child. Frequently she gave non-responsive answers, in favour of what was akin to “a script” as to how the child simply cannot cope with the time with her father. I refer to “a script”, not in the sense of a definitive finding that she is deliberately lying, but to depict that her fixed and unwavering view was such that she could not hear, let alone contemplate contrary views.
Dr W’s professional view is that it is likely the mother is suffering some form of disorder which renders her incapable of accepting the child’s separation from her. Having made similar observations in her earlier report in March 2008, Dr W referred to it in the recent report a number of times in a number of ways. Dr W spent many hours with the family over a number of interviews in the process of preparing the two reports. She concluded that the mother may be suffering “irrational anxiety and distress” about the child spending time with her father. Moreover, her “separation anxiety” may be severe enough and invasive enough to be classified as an emotional and psychological disorder, since she seems unable to be supportive of the child’s relationship with her father in any way.
Dr W is of the professional opinion that the mother may be “manipulating events” for her own purposes. She noted a “pattern” whereby the mother was:
…manipulating events and [the child] in order to create anxiety in [the child], whether consciously or unconsciously, in order to minimise her own anxiety about being separated from [the child];…
Although Dr W had not conducted a formal diagnosis of the mother, her concerns about the manipulation, and a likely disorder, were based on a number of things, including the child’s presentation and views, each parent’s account, and what she was told by the school. In addition, the mother’s conduct in the course of the interviews was important.
Dr W observed an incident first-hand where the mother “badgered”, “manipulated”, and “upset” the child when she was about to see her father. Dr W noted (at para 48):
… [the mother’s] disturbing actions and behaviours during interview, in that she in effect badgered [the child] to tell the writer the truth after over-hearing [the child] answering in a way she did not think was right, giving [the child] a clear indication that she didn’t like what she had told me, and she manipulated [the child] into becoming upset and reluctant to go with her father after the interviews by telling her not to cry and become upset, when clearly she wasn’t crying and wasn’t upset at the time, and by telling her that she loved her and would miss her, as if [the child] was going to be away from her for weeks, not a few nights. Again this was a clear message to [the child] that she should be upset because her mother was, and [the child] of course responded to this message. This becomes even more significant when you consider that the writer was able to easily calm [the child] down, and once [the mother] left, [the child] took a few moments, but quickly reverted back to her usual happy self, and then proceeded to enjoy her time with her father.
The mother tried to portray this scene quite differently. Where her version conflicted with that of Dr W, I accept Dr W’s account. The mother’s evidence was unimpressive. She insisted that she was “embarrassed” and “upset” that when the child was being interviewed by Dr W, she could overhear what the child was saying, while she waited outside. She said that when she joined the child in the interview, she was not manipulating the child to dissuade her from going to her father’s, but was simply trying to get her to tell Dr W “the truth”. She wanted the child to tell her that she was upset about not being able to take a bag or her teddy to her father’s home.
The mother’s version did not ring true, particularly as the bag and the teddy were not issues that concerned the child at all when she was asked by Dr W. As noted, it is much more likely that the mother was manipulating the child into being upset about going to spend time with her father. That was certainly the effect of her behaviour. The mother’s conduct bolstered Dr W’s hypothesis as to her disorder, and that the child is mirroring her mother’s anxiety rather than experiencing it herself, and that she is acting in ways she expects her mother wants “by taking cues from her”.
The fact that the child is overall a happy child who only exhibits anxiety surrounding the time with her father, is another factor that has led Dr W to conclude that the child is mirroring her mother’s anxiety.
According to Dr W, the mother’s behaviour is “even more disturbing” in that, despite being confronted about it, she was still unable to accept or see how her behaviour had caused the child’s distress. Instead, she continued to insist that the child was scared and anxious about seeing her father, when the child’s behaviour clearly communicated otherwise.
In both her report and her evidence, Dr W emphasised how hard she had tried to explain her concerns to the mother. She described the mother as “single minded”, “focussed on her own beliefs and attitudes”, and appearing to “ignore alternative explanations” for the child’s behaviour, despite Dr W taking the time to explain why the child’s behaviour was not consistent with her experiencing real anxiety.
It is clear that the mother still has not understood or heeded what Dr W explained to her. Although at the start of the case she amended her proposals so that, rather than severely reducing the father’s time with the child, as she had sought, she proposed that it remain the same as in the June 2008 orders (with one less mid-week overnight), and, rather than continuing to seek sole parental responsibility, she proposed shared parental responsibility, it was apparent that she had no belief in or commitment to the amended proposals.
Despite Dr W’s explanations to her at interviews, for the two separate reports, the mother was still “surprised” by Dr W’s opinion. She does not believe that she has anything wrong with her, or is contributing to the child’s anxiety in any way. She does not believe that she needs any help or therapy, despite Dr W’s strong and clear suggestion. Her proposal for the June 2008 orders to be continued was a thinly veiled proposal, and it did not take long for the veil to be lifted, to expose the reality that she does not actually believe the orders were appropriate, but believes that she has to make those proposals.
Although the mother could say nothing positive about the father and gave me no reason at all to believe she is capable of encouraging the child’s relationship with him, I am also concerned about the capacity of Mr and Mrs Henb to foster the child’s relationship with her mother.
I am satisfied that the father dearly loves his daughter and genuinely wants to support and look after her. He has been steadfast in his efforts for a strong relationship with her, despite the history of the mother’s resistance, and the obstacles put in his way. But he made it clear that he did not like the mother. I saw text messages from his household, the worst of which was “You have already made a fool of yourself. You are a very sad and sick woman”, and, “Maybe if you weren’t so evil, you could find some friends to occupy your time.”
The father admitted that he had thought of proposing that the child spend no time with her mother, in order to settle in his household, but he was concerned that such a proposal would “paint him in a bad light” with the court.
He conceded that he and his wife had spoken between themselves against the mother, and that there was the possibility that the child had overheard them.
These things combined raise the spectre that he might not properly encourage the child’s relationship with her mother.
So far as the text messages are concerned, I have a very incomplete history of them. I accept the evidence of both the father and his wife that equally unpleasant messages were sent to them by the mother. I accept the stepmother’s evidence that at least for a year now she has not participated in sending messages, having learned that it is unhelpful.
Otherwise, I am heartened by several things. First, the father was generally forthright in his evidence. He was clearly frustrated, angry, and upset by the mother’s obstruction of his relationship with his daughter. He did not conceal that. I accept him at his word when he says that he will fully comply with all court orders. That accords with the way he has conducted himself over the years. In an ideal world, he would do more than that, but the ground-work has not been ideal, given the impediments placed by the mother, and the bad blood between the parents. His full compliance with orders is a good start, and significantly better than I anticipate the mother is capable of, based on her past conduct, and her continuing attitude to the child spending time with her father.
I do note that the child told Dr W that when she was at her father’s she wanted to telephone her mother at times but was not permitted to do so. The father said that she did not ask him. I accept that. He was fair and reasonable in suggesting that it may well have been that, just as the child tried to please her mother, she was trying to please him as well, and thought it might upset him. Again, I was heartened that he had the insight to consider that.
I am also satisfied that the father does understand how difficult any change of residence will be for his daughter, and it is likely he will respond to her needs in ensuring she is able to have the relationship she so profoundly will need with both of her parents.
The father’s frustration was particularly clear when he said that if the child continues to live with her mother, he will consider “walking away”, that is, he would be involved only marginally in his daughter’s life by seeing her sometimes at school. There are several possible interpretations open to me. The first is that he intended it to put some sort of pressure on the Court. The other is that he is simply concerned for the child, and exasperated by the lack of progress that has been made while he has pursued a solid loving relationship with her over a number of years and through protracted litigation.
I gained the impression that it was the latter, and that indeed his main motivation was to save his daughter the heartache and anguish to which she has been subjected. I am satisfied too that although at times in his evidence he was difficult or loud in his manner, that was borne of the same frustration.
Otherwise, it was the mother’s case that in the father’s household, the child would effectively be cared for by others. That is not a fair assessment. He works as a teacher. His hours are not unreasonably long and he is available in school holidays. Although he plays cricket or football at week-ends, depending on the time of the year, I am not concerned about that. His explanation that the child and the family can be, and often are a part of that, is a reasonable one. It is a good and healthy activity for the children to observe.
It is also reasonable that the child, if part of his household, will be cared for by his wife with the other children. The child has a good relationship with the stepmother, who, although only 22, seems mature and well-balanced, and is clear as to her role as opposed to the child’s mother’s role in the child’s life. The child will also spend some time with the father’s family. They are a close and loving family. So is the mother’s. The child is lucky in that respect.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no question that a change from her mother’s residence will be a profound change for the child. Dr W emphasised that. She noted (at para 52) that the child appears to have a very strong positive bond with her mother, and while she appears to be a very happy, confident, well-adjusted, and socially adept girl, the danger of removing her from her primary attachment figure is that:
…she may become extremely anxious and distressed, she may regress in her behaviour, she may develop behavioural and/or psychological disorders, and she may have trouble developing new attachments and in forming and maintaining new relationships in the future. [The child] may also become very angry with her father for causing this separation from her mother, and she may resent him indefinitely.
Later she said (at para 55):
…[the child] is almost inevitably going to feel loss and anger if she is removed from her mother, and she is likely to become anxious and distressed for a short period of time at least, and she may not only be angry with her father and the court, but she may also be angry with her mother, because she will not fully understand why she cannot be with her, and may experience this as rejection instead. The danger of course is that she is then unable to attach to anyone, and this will cause on-going emotional, psychological, and behavioural problems, that will most likely impact her home, school, and social life.
It is important to note that Dr W then added in her report that the child may in fact “adapt quite quickly”. In her oral evidence, she suggested it could be within two to three months. She spoke about how difficult it was to predict, but she referred to the child’s apparent natural resilience.
In her recent report Dr W set out three alternative recommendations, the first two having the child live with her mother with certain conditions (to hold the “sword of Damocles” over the mother’s head), and the third alternative being a change of residence to live with her father. Ultimately, taking everything into account, in particular that the mother still cannot recognise that she has any problems in the way she is handling her daughter’s relationship with her father, Dr W said she favoured the third alternative, with a change of residence for the child.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors are not relevant in this case.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
This is an important consideration, given the child’s right to be exposed to all aspects of her heritage. I am satisfied that the attitude of Ms P, set out above, is shared by the mother, who described the child’s time with the paternal grandparents in such pejorative terms.
The mother’s family background is European. I am satisfied that the child is entitled to understand and be proud of both her European and Lebanese backgrounds.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
This aspect has been dealt with above.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is imperative that the child now have the opportunity to grow up enjoying both her loving parents without the spectre of litigation, and the inevitable pressures that it brings to them, and by consequence to her as well. I have already noted that I have greater confidence that it is the father rather than the mother who will comply with court orders. If the child lives with her father, it is less likely to lead to future proceedings. This far she has always lived with her mother and there have been on-going proceedings and applications over the years.

CONCLUSION

I need to decide the question of parental responsibility and the child’s living arrangements.
In most aspects of her life, the child is a happy, healthy child, developing well. Both parents deserve credit, but in particular her mother, with whom she has primarily lived. That is a fundamental consideration in deciding what orders will now promote her best interests.
There is however one large caveat to the child’s healthy and sound development. That is the mother’s attitude towards her relationship with her father, and the profoundly negative impact of that on the child.
She has been the subject of litigation for most of her life. She exhibits distress and anxiety surrounding seeing her father. That is despite the fact that she thoroughly enjoys her time with him and within his family, with her step-mother, her little half-brothers, and paternal grandparents and relatives.
This is more than just an occasional issue in this little girl’s life. It impinges dramatically, not only because it is interrupting her capacity for a loving relationship with her father as well as her mother, but the distress she is apparently exhibiting at both the start and the end of time with her father is happening over a number of occasions in every fortnight, and has been involving her in an excess of medical appointments, several unnecessary psychologists’ assessments, being kept from or removed early from school, and being robbed of the capacity for a calm and normal childhood, free of her mother’s anxieties and the on-going litigation.
The evidence satisfies me that Dr W’s concern that the child is simply mirroring her mother’s anxiety and distress at separation, is well-founded. No formal diagnosis of the mother has been made, but Dr W has had the opportunity to assess the family over two reports and a number of meetings and interviews.

Ultimately, given the mother’s incapacity to accept that she needs any help or treatment in how she is approaching the child’s time with her father, Dr W was persuaded that, despite the inherent risks, the child should how live with her father. Although she said no-one could predict with certainty what would occur, in her view the child is resilient enough to do well despite the initial upset of the change in her living arrangements.
Mr Coleman for the wife urged me to adopt an alternative proposal, whereby the mother would seek and have treatment as a condition of the child living with her. Although, he based his submissions on the mother’s understanding as to the seriousness of the situation and her contribution to it, unfortunately her evidence did not reveal that understanding. She was insistent that she needed no treatment, and showed no inkling of emotion about, or any realisation of, her contribution to the child’s anxiety, either in her answers or in her affect.
After the years of litigation in which the father has pursued the child’s right to a strong relationship with him, unless I make the changes sought by the father and recommended by the ICL, I fear I would be inflicting “more of the same” – more of an emotional and financial drain for the parties, and more damage for the child.
I am satisfied that the father should have sole parental responsibility for the child. The presumption in favour of shared parental responsibility is rebutted in this case. It will not be workable. The mother has not shown the capacity or insight to include the father or work with him in any way. It could not be in the child’s best interests for decisions to be required on a joint basis. As to her living arrangements, I am satisfied that with her mother, the child is simply not able to lead a healthy childhood free of doctors, psychologists and pressures surrounding her relationship with her father.
I have no doubt that in the short-term the change will be difficult for the child. I am satisfied that the father and his wife, and the paternal grandparents will support her and give her whatever assistance, including any counselling, that may be necessary. I hope that for her own sake, as well as the child’s, the mother will seek her own help and support. It will inevitably be a very difficult time for her.
I am satisfied that the father, despite his frustration at how he has been kept at arms’ length from his daughter by the mother, is likely to ensure that court orders are followed so that the child spends time with her mother. I hope he will support the relationship more fulsomely than that. He loves his daughter and should appreciate what is best for her in having the freedom to love and enjoy both her parents.
The mother too loves the child very much. I hope that love will enable her, despite her inevitable disappointment, to enjoy her time with her daughter. Ideally the mother will commit to the help that she needs so that the child can spend more time with her in the future.
As I discussed at the end of the case, I am satisfied that the child needs my orders described, in an age-appropriate manner, via the professional assistance of Dr W, with whom she is familiar. That has been arranged to occur forthwith.
That leads me to an issue that was not specifically addressed, and about which I now seek some guidance by way of submissions. It relates to whether the early periods of time between mother and daughter should and/or could be supervised. It is the time when emotions will run at their highest and the child needs to be protected from undue or added distress. I welcome submissions about that and about any other details of the proposed orders. I am conscious that the parties have not and could not address every detail of orders in final submissions, not knowing the base orders that would be made. I have largely adopted the orders proposed by the ICL, with adjustments in accordance with the father’s proposal, or other orders I believe are in the child’s best interests.
First, I am satisfied that the child should spend every alternate Wednesday night with her mother as well as alternate week-ends. I am aware of the possibility of her being unsettled, but on balance I have decided at her age she is likely to find it hard to go for longer periods without seeing her mother.
I agree with the ICL’s proposal that in the upcoming July holidays, the school term time regime should apply, with holiday time not starting until the September holidays. That will better enable the child to settle in her father’s household. For the same reason, I have adopted the father’s proposal that the child’s holiday time with her mother shall be allocated in shorter blocks in the upcoming long summer holidays.
I accept that the mother should not attend school on days the father is collecting the child. That will avoid the disruption that has occurred in the past. She will still have each alternate Friday and the intervening Wednesday when she can attend for school activities. No-one suggested to stop that.
The father also proposed that the mother undertake treatment before the summer holidays. As I have said, I hope she will choose to do so. However I will not order that. I have not predicated her time on treatment otherwise, so that condition is not a logical one at that time.

THE ORDERS

The orders I propose, subject to the submissions I shall allow, and submissions as to form, are as follows:
1.That all existing parenting orders in relation to the child … born … October 2002 shall be and are hereby discharged.
2.That the father shall have the sole parental responsibility for the child.
3.That the child shall forthwith live with the father.
4.That the child shall spend time with and communicate with the mother as follows:
(a)    On each alternate week-end from Friday at the conclusion of school until Monday at the commencement of school;
(b)    On each Wednesday in the other week from the conclusion of school until Thursday at the commencement of school;
(c)    During the Term 2, 2009 holidays in accordance with the regime in paragraph 4(a) and (b);
(d)    Commencing the third term school holidays in 2009, for one week in each school term holidays, as agreed, but failing agreement, in the first week;
(e)    In the 2009 summer holidays, for two separate weeks as agreed, and failing agreement, for one week commencing 27 December 2009 and one week commencing 17 January 2010;
(f)     Commencing in the 2010 summer holidays, for one half of the summer holidays, as agreed, but failing agreement, for the first half in odd years and the second half in even years, save that in even years the child shall be returned to the father’s home no later than two clear days prior to the commencement of Term 1 in the next school year;
(g)    By telephone on Tuesday and Thursday, with the father to facilitate the child telephoning the mother and communicating with her, at 7.00pm;
(h)    On 24 December at 4.00pm until 25 December at 1.00pm in odd years and from 1.00pm on 25 December until 5.00pm on 26 December in even years, but if the child is with her mother in the first half of the holidays then she shall be returned to her father for Christmas from 24 December at 4.00pm until 25 December at 1.00pm in even years and from 1.00pm on 25 December until 5.00pm on 26 December in odd years;
(i)     On the child’s birthday as follows:
(i)     If on a school day, for three hours from the conclusion of school;
(ii)    If on a week-end when she would otherwise be with her father, for four hours, at times agreed, but failing agreement from 1.00pm until 5.00pm;
(iii)   If on a week-end when she is already with her mother, then her time with the child shall be suspended for four hours, at times to be agreed, but failing agreement from 1.00pm until. 5.00pm;
(j)     On Mother's Day from 9.00am until the commencement of school the following morning, and should Father's Day occur on a week-end when the child is with the mother, then her time with the child shall be suspended from 9.00am on Father's Day; and
(k)    As otherwise agreed in writing; and
(l)     Save as set out in paragraph 4(c), during school holiday time paragraph 4(a) and (b) shall be suspended and shall resume at the start of the new school term on the week-end in which it would have occurred had it not been suspended.
5.That the father shall keep the mother informed without delay in relation to all decisions made by him in relation to the child’s health, religion and education and wherever possible consult with her in relation to such issues prior to making any decisions concerning same.
6.That the father shall forthwith authorise the child’s school to provide to the mother at her expense if any, with any printed information including photos that the school normally provides to parents in relation to their child’s social and academic progress.
7.That the mother shall be restrained from taking the child to a child psychologist, therapist or counsellor.
8.That the mother, her servants and agents shall be restrained from attending the child’s school for any activities (unless there is prior written agreement by the father) on any day other than when she is to collect her pursuant to these orders.
9.That the father, the mother, their servants and agents, shall be restrained as follows:
a.From denigrating the other, or any member of their family, to or within the hearing of the child; and
b.From discussing these proceedings with or within the hearing of the child.
10.That all existing proceedings shall be otherwise dismissed.
11.That the ICL shall give a copy of my reasons for judgment to Dr W who is requested to explain the orders to the child.
12.That the appointment of the Independent Children's Lawyer shall be dismissed.
13.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: 24 July 2009

[2009] FamCA 927

24 July 2009

Key Legal Topics

Areas of Law

Family Law