HERON & PEMBROKE

[2015] FamCA 120

FAMILY COURT OF AUSTRALIA

HERON & PEMBROKE [2015] FamCA 120

FAMILY LAW – CHILDREN – Interim Parenting – Best interests of the child – Where there is one child who is 17 months of age – Where there has been some difficulty in the child being able to spend time with the father – Where the father seeks an increase in time spent with the child – Orders made for the child to spend frequent short periods of time with his father.

Family Law Act 1975 (Cth) – ss 60CC, 61C, 61DA,

APPLICANT: Ms Heron

RESPONDENT: Mr Pembroke

FILE NUMBER: SYC 4058 of 2014

DATE DELIVERED: 9 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 9 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Giacomo

SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton, SC

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

1. That by consent orders are made in accordance with the hand-written Minute of Consent Orders filed in Court today signed by the parents and their respective solicitors and by Johnston J and placed with the Court papers as set out hereunder:-

By consent

1.That in relation to the application for contravention of parenting orders filed by the father on 24 October 2014:

1.1The mother admits that she contravened the orders made 30/7/14 in that she did not make the child [B] born …2013 available to spend time with the father on 27, 28 and 29 September 2014; however

1.2The mother contends that on each occasion of contravention she had a reasonable excuse; and

1.3The application for contravention is adjourned for mention on a date to be allocated by the docket registrar after the release of Chapter 15 single parenting expert report.

1. That orders are made in accordance with the document headed Minute of Order Sought by the Mother signed by Johnston J and placed with the Court papers as set out hereunder:-

1.That order 3 of the orders dated 11 November 2014 be suspended pending assessment by the single expert [Dr C].

…

5.That pending provision of the Report of [Dr C], the child shall spend time with the father in accordance with the document headed Minute of Order Sought by the Father [as set out hereunder] as amended in blue biro on the basis that the mother shall arrange for her mother to attend all occasions of spending time unless for good reason her mother is unavailable in which case the mother shall attend that responsibility.

Minute of Order Sought by the Father

1.That by way of implementation and further definition, that the orders made by Senior Registrar Campbell on 11 November 2014 be specified such that the father shall spend time with the child [B] (“the child”):

a.In [D Town] on the following dates:

Saturday, 21 February 2015 from 10 am – 1 pm

Saturday 14 March 2015 from 10 am – 1 pm

Saturday 28 March 2015 from 10 am – 1 pm

Saturday 18 April 2015 from 10 am – 1 pm

Saturday 16 May 2015 from 10 am – 1 pm

Saturday 6 June 2015 from 10 am – 1 pm

Saturday 27 June 2015 from 10 am – 1 pm

Saturday 25 July 2015 from 10 am – 1 pm

b.In [E Town] on the following dates:

Saturday 7 March 2015 from 10 am – 1 pm

Sunday 8 March 2015 from 10 am – 1 pm

Saturday 11 April 2015 from 10 am – 1 pm

Sunday 12 April 2015 from 10 am – 1 pm

Saturday 2 May 2015 from 10 am – 1 pm

Sunday 3 May 2015 from 10 am – 1 pm

Saturday 23 May 2015 from 10 am – 1 pm

Sunday 24 May 2015 from 10 am – 1 pm

Saturday 20 June 2015 from 10 am – 1 pm

Sunday 21 June 2015 from 10 am – 1 pm

Saturday 11 July 2015 from 10 am – 1 pm

Sunday 12 July 2015 from 10 am – 1 pm

Saturday 1 August 2015 from 10 am – 1 pm

Sunday 2 August 2015 from 10 am – 1 pm

1. That the mother shall arrange for the child to be delivered to the father at his residence at D Town in accordance with these orders at the commencement of each of the times for the child to spend with the father there and arrange for the collection of the child at the father’s residence at the conclusion.

1. That the father shall collect the child from the mother’s residence at E Town at the commencement of each specified time and return the child to the same place at conclusion.

1. That on all occasions when the grandmother shall be present, she is the person who should changeover the child and she should do so in the absence of the mother.

1. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders 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 by this Court under the pseudonym Heron & Pembroke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4058 of 2014

Ms Heron

Applicant

And

Mr Pembroke

Respondent

REASONS FOR JUDGMENT

1. These are further interim parenting proceedings in relation to a very young child, B who was born in 2013 and therefore is 17 months of age.  The child’s parents are Ms Heron, to whom for convenience I shall refer as “the mother”, and Mr Pembroke, to whom also for convenience I shall refer as “the father”.

2. The brief background matters are that the father was born in 1981.  The mother was born on in 1983.  They commenced cohabiting in December 2012 and they separated in January 2014.  At that time this young child was approximately five months of age. 

3. There has been some difficulty in terms of the child being able to have appropriate opportunity to develop a relationship with his father.  There have been two previous sets of orders made and I shall come to those in due course. 

4. The second set of orders was made in November 2014.  The mother says that those orders have not worked, and I shall come to the details of those orders shortly.  The orders which the mother is now seeking would suspend the operative part of the orders of 11 November which provided time between the child and his father.  The mother proposes a change to an order which was made by the learned senior registrar for the appointment of Dr C as Chapter 15 single expert and that instead of Dr C, Dr F be appointed for that responsibility.  Dr F would be able to see the parties on 18 February 2015 as distinct from Dr C with whom appointments have been made for interviews at the beginning of May 2015.  The mother also proposes that pending the report of Dr F, the child spend time with his father each weekend on Saturday and Sunday at E Town for two hours as agreed, and failing agreement, from 9.30 am until 11.30 am in the presence of the mother.

5. On the other hand, the father seeks orders which would involve the child seeing him for approximately three weekends out of each four weekends over the period between now and August this year.  What the father proposes is that firstly, the mother would bring the child to him at D Town on a whole range of dates starting with 21 and 22 February 2015 for four hours each day and then a couple of weekends in March and similarly over successive months.  Secondly, he would travel to E Town where the mother and the child live and spend time from 1.00 pm to 5.00 pm each day of various specified weekends which, as I say, in aggregate would turn out to be something like three out of four weekends. 

6. The major difference between the parties is that the mother says that the child really has no relationship with the father, that there have been difficulties, certainly including real difficulties following the making of the orders in November with the child acting out and becoming very distressed after spending time with the father.  The mother proposes that her mother, in the first instance, or, failing her mother being able to be available, she would spend the specified times between the child and father to support the child.

7. The father says that initially he had quite a deal of experience with the child and he said he took two weeks leave from work following the child’s birth.  He assisted the mother with bottle feeding, changing the child and caring for him.  He said that when he returned to work he would change and feed the child in the mornings before he went to work, but he said that the child was asleep when he returned home after work so there was not opportunity on those occasions for him to spend time with his son.

8. One of the difficulties about this case is that whereas previously the parties were living together in G Town, within a couple of weeks of separation the mother moved with the child to E Town.  The mother is staying in a home which was described as her family home at E Town.  There is some issue about the extent to which the mother’s mother has a relationship with the child.  I have been informed across the bar table that the maternal grandmother lives most of the time also in the same home at E Town with the mother and child, although she owns a studio apartment in Sydney.  There have been occasions when the mother and child have come to Sydney and used that apartment for the child to spend time with his father.  But for the major part the maternal grandmother is living in E Town with the mother and the child.

9. As I say, within a short period, the mother moved with the child to E Town and, understandably the father was very unhappy about that turn of events.  This was because he believed it would adversely affect his relationship with the child.  And on the basis of the material that is before the Court it seems pretty clear that that has been the case. 

10. The father saw the child on 18 and 19 January 2014 a few days after separation.  On 11 February 2014 he spent time with the child in Sydney in the mother’s presence.  The parties agreed that the father would spend time with the child in E Town on 1 and 2 March 2014, but he had motor vehicle difficulties and he was unable to attend on those occasions.  On 15 March 2014 the father spent approximately 90 minutes with the child with the mother present.  The following day he spent approximately 60 minutes with the child with the mother present.  On 3 April 2014 he spent approximately 75 minutes with the child.  On that occasion the child had an appointment with the paediatrician and the father was able to attend and he spent time with the child then.  The following day he spent approximately three hours with the child with the mother present.  Then there was somewhat of a gap until he next spent time.  He spent approximately one hour on 13 June and some time on 14 June 2014.

11. I referred to there being some initial court orders.  Those were consent orders made on 30 July 2014 under which the father and the child were to spend time over a four-week cycle from 10.30 am to 1.30 pm Saturdays, Sundays and Mondays at E Town in the first week of that four-week cycle, and then in the third week they were to spend the same times in Sydney.  Those arrangements were to be supervised by one or other of the father’s parents, although on the first weekend it was the mother’s mother who was to supervise.  That was for 16, 17 and 18 August.  In any event, the father and child spent time on those occasions as well as on 30 and 31 August, and 1 September 2014.  Then on 13, 14 and 15 September.  By October there appeared to be real difficulties.  The mother had not facilitated time between the child and the father for something in excess of a month and the father filed a contravention application.  That application has been stood over pending completion of the expert’s report.

12. As I say, on 11 November 2014 proceedings were before Senior Registrar Campbell for interim hearing and then there were orders made for the child to spend time with his father in an eight-week cycle.  Three weeks in Sydney three days a week from 1.00 pm to 5.00 pm and then during that eight-week cycle three weeks in E Town, three days a week for the same hours, and certain time on special days.

13. The mother said that she opposed those orders, that is, in the terms upon which the learned senior registrar made them on 11 November 2014.  This was because in her view, the child had not been coping with the times under the earlier orders, that is, the July orders, and that the relationship between the child and his father had not improved. 

14. Under those orders the first appointed time was 22 November 2014.  That was a Saturday and it was in Sydney.  The mother said that after the child returned to her care she noticed he had bitten himself in the car on the way home.  She said that he also bit her and bit himself a second time.  The mother said that when they arrived home he did not seem to be himself.  She said that he had a blank stare and he was silent.  She said that he ate little of his dinner, became unsettled, was crying and grizzling at nothing and was clingy. 

15. The next visit was the following day, Sunday, 23 November.  The mother said that when she collected the child at 5.00 pm he was crying.  She said that his face was red and his eyes were bloodshot and swollen.  She said that he started screaming when his father was having difficulty unlocking the screen door and that the child began kicking the door.  She said that when the door was opened, the child threw himself at her and buried his face into her, sobbing.  The mother said that when they arrived home he remained vacant and distant and had a blank stare.  She said that he did not settle down to bed in the usual way and she said that night he awoke twice crying and biting at his pyjama sleeve.  She said that he seemed terrified of letting her go.

16. The next visit was the following day, 24 November 2014.  As with the previous occasions, the mother said that when he returned to her care he bit her, long and hard on the neck.  She said he buried his face into her shoulder and would not say goodbye to his father.  She said that the father tried to touch the child’s hand and that the child pulled away and bit her hard repeatedly.  She said that night he refused to eat at all.  She said that he looked vacant and was different from his usual self.  She said that he would not let go of her and, when she laid him down for bed, he began screaming and writhing.  She said that each time she picked him up, he would bite her.  She said that he awoke several times during the night. 

17. The next opportunity for time to be spent under the orders was 13 December 2014 at E Town.  The mother said that at the handover the child began to cry and was clinging to her.  She said that as she handed him over to his father, he bit her on the neck.  She said that at the conclusion of the time, the child bit her on the neck, but she said he seemed to settle more readily than previously.  The mother thought overall that the visit on 13 December 2014 had gone better than the previous visits. 

18. The next occasion was 14 December 2014.  The mother said that at changeover, when the child saw the father he cried in a high-pitched tone and became agitated.  She said that he was thrashing from side to side in her arms.  She said that he bit her arm when she handed him to the father.  She said that he was crying.  The mother said that at collection, when the child saw her, he made a strange high-pitched sound and was kicking in his father’s arms and he started to cry.  She said that when she and the child arrived home, the child was frantic and could not settle. 

19. She said that he bit her several times and would go from being noisy to silent.  She said that she was able to settle him in the bath but when she took him out of the bath, he became frantic.  He ran around almost uncontrollably.  She said that he burst into tears several times and became almost hysterical.  He kept biting her and also her mother.  She said that night he clung to her and screamed.  She said that he was in great distress and that this unsettled behaviour continued through the following week. 

20. The parties saw family consultant Ms H before the November orders were made by the learned senior registrar.  Ms H had an opportunity of seeing the child with the parents.  At paragraph 11 of her assessment report, Ms H said as follows:

    In observation of [the child] with his mother, [the child] appeared generally content and appeared able to use her for security to explore the unfamiliar surroundings.  It appeared as though that [sic] [Ms Heron] was directing [the child] in play at times which may have interfered slightly with his exploration.

21. And in paragraph 12, she went on to say:

    In observation of the child with his mother and father, the parents were asked to behave as they would if the mother was supervising [the child’s] time with his father.  [The child] was observed to initially only engage with his mother while his father sat close by and tried to enter the play at times but he did not appear intrusive.

22. And then she says:

    The mother did not appear to encourage the father’s interaction much in her play with [the child].  At a point during the observation the father managed to engage [the child] in a game of peekaboo which made the child laugh, and the child was running back and forth between his father and his mother.  The mother seemed to try to pick [the child] up a few times when he would run to her which would have directed him away from his father, but [the child] ended up running back to his father.

23. And then paragraph 13:

    In observation of [the child] with his father, the child’s mother told him she was leaving and [the child] did not appear to initially notice the mother leaving as he was playing with a toy but after a few minutes [the child] noticed her absence and he appeared worried.  The father appeared to observe this and picked [the child] up and held [the child] and tried to distract him with some toys.  [The child] appeared interested in the toys for a moment but then returned to appearing worried and seemed very hesitant to play with the toys.  The father tried to encourage [the child] and showed different toys until [the child] found a toy that seemed to distract him from his worry and cause him to smile.  For the rest of the observation, [the child] moved between having moments of appearing to be happy and playful and having moments when he appeared worried unable to explore and play.  The father also did not appear intrusive with [the child] in this observation.

24. Then in paragraph 14:

    In observation of [the child] returning to his mother, [the child] appeared relieved and was able to use his mother for comfort.  [The child] appeared tired by this stage and was rubbing eyes.  He also appeared to be patting or rubbing the back of his head but it was unclear whether this behaviour was related to him being tired or a reaction to having spent time with his father, away from his mother. 

25. And then at paragraph 24 in Ms H’s evaluation she says as follows:

    At the time of the parents’ separation, [the child] was, and still is, at a critical stage in terms of the development of his attachment relationships.  These relationships help children to feel safe, to explore their environment, and to regulate their emotions, which are necessary for a child’s healthy development.  Children generally form these relationships through receiving regular, consistent and sensitive care from an adult.  For a child [the child’s] age to develop and maintain an attachment to a parent they do not live with, it is generally advisable for the child to spend time with their parent every few days to help build or maintain the child’s familiarity with that parent. It is generally advisable for them to spend time with that parent, initially for short periods of time of one to three hours because a young child can be distressed by long absences from their primary attachment figure.

1. And paragraph 25:

   Observations of [the child] with his father seem to suggest that [the child] does not have the kind of relationship with his father at this point that helps him feel safe to explore and helps him regulate his emotions.  This is perhaps to be expected considering that the child is unable to spend more frequent time with his father, and also considering that he has not spent time with his father in approximately six weeks.

2. Ms H goes on to report:

   If [the child] is to develop a relationship with his father that is conducive to him feeling secure and thus supports his development, ideally, he would be spending time with him each week.

3. And paragraph 26:

   The mother claims that [the child] is responding negatively to spending time with his father.  From brief observation, the father did not appear to behave in a way that should cause [the child] to have a negative reaction but further assessment of this may be needed.  It may be that [the child] is having a negative reaction to spending time with his father simply because it is distressing for him to be away from his mother who is his security figure, and he spends time with his father too infrequently to be able to form or maintain a similar relationship with.  If the child is worried and having a negative response to spending time with his father, it may have a negative impact on his development to continue to spend time with his father as per the current schedule.  (That was the earlier set of orders.)

4. And then Ms H reports:

   An option may be for the schedule to be amended for [the child] to spend shorter periods of time, more frequently with his father, but given the distance between the parents, this may not be possible.

5. And that was a time when the father was in G Town and the mother was in E Town. 

6. And paragraph 27:

   Even if the parents were able to support this schedule, [the child] may continue to be distressed by spending time away from his mother/with his father, and it may be more comforting for [the child] to spend time with his father with the mother present, at least for some portion of their time together.  The difficulty with the mother being present is that it may not be a positive environment for [the child] to develop his relationship particularly if the parents’ relationship is strained. or if the father has been abusive to the mother.  In addition, the mother may struggle to encourage the relationship between [the child] and his father.

7. It seems that both options are problematical.

8. The orders were then made by the learned senior registrar, and opportunities were provided for time between child and father.  As I have said, the mother said there have been real problems. 

9. There was a very strong submission on behalf of the father that he received quite a positive report in terms of his co-parenting ability and what was observed of him by Ms H on the occasion of the interview.  That is certainly the perception that I have from reading her report.

10. It was also submitted very strongly that given the poor relationship between these parents, it would not be of much assistance to the child to be placed in a situation where the opportunity which is presented for him to be able to develop a relationship with his father, is in fact supervised by the mother.  This was said to be for a variety of reasons, such as the child would look to the mother for cues, and that it would be hard for the father to keep control.  It was submitted that it would be difficult for it to be meaningful in terms of developing a relationship between the child and his father. 

11. Secondly, it was submitted that because the relationship between the parents is poor the Court would have some reservations about the likelihood that each of the parents would be able to behave at all times in such a way that one or other or both of them would not bubble over, perhaps from frustration or some other reason, and things would be said which would then give the child the impression of the poor relationship between them.  This would not be in the best interests of the child.

12. The statutory provisions which guide the Court in its determination of parenting proceedings is set out in Part VII of the Family Law Act 1975 (“the Act”). When considering making a parenting order, the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act. I am not going to go through those in detail, but I note them. In deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. Section 60CC of the Act sets out specific criteria which must be considered in determining what is in the child’s best interests.

13. And then s 61C talks about parental responsibility.  Section 61DA(1) provides in effect that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child, for the child’s parents to have equal shared parental responsibility for the child.  I have noted also the provisions of ss 61DA(2) and 61DA(4). 

14. How the Court is to go about determining what is in a child’s best interests is set out in s 60CC(2) and (3) of the Act.

15. The primary considerations are set out in s 60CC(2) of the Act. These are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents, and secondly, the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect, or family violence. And s 60CC(2A) requires the Court to give greater weight to the latter consideration. I shall return to those considerations after making some observations about the additional considerations.

16. The first of the additional considerations – and these are set out in subsection 60CC(3) of the Act – are 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. The child is, as I say, 17 months of age. In those circumstances, that is not really a relevant matter.

17. The next matter is the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.  It is clear that the child has his primary relationship with his mother.  He has always been in her care subject to a few occasions when that has not been the case by reason of orders to provide opportunity for the child to have a relationship with the father. 

18. The child was forming a relationship with his father but then the parties separated and there has been limited opportunity, really, since that time for the child to develop a relationship with his father.  There are real difficulties in terms of that.

19. The next matter is the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child.  Clearly, the child’s father has been at pains to endeavour to have opportunity with the child and as frequently as can be accommodated given the needs of the child and also the professional responsibilities on the father.  But there have been the occasions that I have referred to. 

20. The next matter is the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child.  I am not aware that there are any difficulties about that. 

21. The next matter is the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or another child or another person – including any grandparent or any relative of the child.  The evidence is limited in respect of this matter.  One would hope that when there has been opportunity for one or other of the proposed single experts to assess the family and assess the child, one would be better placed to form a view about that matter.  But, certainly, on the mother’s case she says that the child is having real difficulty separating away from her and transitioning to his father.  She is concerned that the child is under stress being absent from her on those occasions.

22. The next matter is the practical difficulty and expense of the child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents.  It is, as I say, a matter of real disappointment on the part of the child’s father that the mother was not able to find a way to remain within close proximity in G Town where they had been living.  As I have said, the mother moved away to E Town.

23. What has since occurred is that the father has taken on new employment and moved to D Town.  He is on a period of probation and, no doubt, hopes that he will be able to maintain employment in that area.  That has had the advantage of him moving closer to the child’s residence.  But there remain practical difficulties because there are a few hours involved in travelling between those two places. 

24. The next matter is the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs.  This is something which will also need to be explored by the single expert.  The mother appears to have good capacity for caring for the child.  But the father is critical of the extent to which he thinks she would be prepared to let him have a relationship with the child.  He seems to see her as manifesting some anxiety about the time of the child spending time with him.  He is worried that, in fact, she does not have the capacity to be able to promote a relationship between the child and him and he is concerned that her longer-term objective is to ensure that the child does not have any relationship with him.  That is not a view that I have at the present time and it would be important to see what the expert says about that matter.

25. But in terms of being able to care for the child and nurture the child and attend to the child’s physical needs and, presumably, much of the child’s psychological and emotional needs the mother appears to have the capacity to be able to do those things.  As I say, the father has not had much opportunity to demonstrate his capacity.  I referred to involvement by him after the child’s birth.  Also there were positive observations made by the family consultant, Ms H, about his child appropriate behaviour and being able to engage the child and play with the child in an appropriate way.

26. The next matter is maturity, sex, lifestyle and background of the child.  There is very little that one needs to say about that other than that this is a very young child. 

27. The next matter is the attitude to the child and to the responsibilities of parent demonstrated by each of the child’s parents.  Each of the parents has, by their behaviour, indicated that they are most desirous of being able to parent their child to the best of their ability. 

28. This is not a matter where it is asserted that there is family violence.  There is no family violence order in these proceedings.

29. The next matter is 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.  I do not know which order might be least likely to lead to an institution of further proceedings.  As I have said, this will be the third set of orders that the Court has been called on by these parents to put in place. 

30. I return to the primary considerations.  On the one hand, clearly it would be to the benefit of the child to be able to have a meaningful relationship with both of his parents.  Each of these parents would appear to me to have a lot to offer this child.  It would be to his advantage to have two parents contributing to his welfare and for him to be able to have a meaningful relationship with both of them. 

31. On the other hand, the Court has to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.  The mother said that the child has been acting in a way so as to cause her to have very serious concerns that the current orders – made in November –are not in the child’s interests.  She says that the periods are too long, that the child was having difficulty coping with the earlier orders and that the child is having difficulty coping with these orders.  In my view, on the evidence to date, it would appear likely that the big problem in the case is that there has not been sufficient opportunity for the child to be able to form an attachment to his father or, at least, a relationship which enables him to pass out of his mother’s care easily into that of his father.  Clearly, that is an important consideration and must be weighed in the landscape of arrangements that would provide appropriate opportunity for the child to have a meaningful relationship with his father.

32. Ms H indicated something along the lines that the arrangements thought most likely to be consistent with the best interests of very young children provide frequent opportunities for time with the absent parent.  But not for long periods.  I recall her saying that each week would be good for up to three hours.  I do not think there is really any contest about the three hours.  I rather had the sense that the father – although he would like more at this point – would accept three hours and I propose to put that in place. 

33. The other matter is the frequency of the orders.  It seems to me that, until we are better advised, what is proposed in the father’s schedule in terms of its regularity would appear to be in the interests of the child.  The mother says that she would have difficulty delivering the child on two occasions to D Town over a single weekend as set out.  She said she would be able to do one occasion on each of those weekends.  In my view, it is not critical that there be two occasions.  I am told she is a pensioner.  The father is in professional employment.  I accept her submissions about that at this point.  It may well be that this would be revised once we get the expert’s opinion. 

34. Accordingly, in my view, it is in the interests of this child for the mother to arrange to have the child presented to the father in D Town on the dates of the weekends in each of the months as set out but not on each of those occasions.  So we could say the first occasion of each of those weekends.

35. On the other hand, the father says that his schedule and other practical matters would enable him to be able to go to E Town on the dates that he sets out.  I can see no problem with those dates.  Each of the parties has indicated that 10.00 am would probably be an acceptable commencement time, bearing in mind the time that it takes to travel to each of those places.  Accordingly, 10.00 am to 1.00 pm on each of those occasions would be appropriate.

36. The mother wants the occasions of time spent between father and child to be supervised either by herself or by her mother.  Given the child’s behaviours as described by the mother above, and because I have a concern that there might not yet be any attachment of the child to his father, in my view appropriate supervision for a period would appear to be in the interests of the child.  It was submitted that given the poor relationship between the mother and her mother on the one hand and the father on the other, attendance by either for supervision would be likely to be counter-productive.  I am not persuaded by this submission.  Whichever adult is providing the supervision needs to keep it in mind that it is highly likely that the child will benefit greatly in life from having a meaningful relationship with his father and this needs to get off to a good start.

37. That leaves the issue about the expert.  As I had indicated, I do not think it is a matter of burning urgency to involve the expert.  It seems to me that the really critical thing is to put in place a regime for this child which enables the child to be able to spend time with his father.  I accept the validity of the mother’s concerns at this point, in the absence of some expert opinion that those concerns might not being properly based.  My reasons for not acceding to the mother’s submissions about substituting Dr F for Dr C (Dr F could see the family much sooner than Dr C) is the fact that this matter has already been litigated before this Court and I am not so persuaded to the need for urgency that I would regard it to be appropriate to change experts.

38. The mother agrees that she would endeavour to make her mother available to supervise for most of the opportunities that would be presented in the schedule.  She says in the event that her mother was not available – and I understand implicit in that is for reasonable cause – she would make herself available to ensure that the child did not miss that time with his father. 

39. I propose to put orders in place in terms of this schedule with some amendment.  I have crossed out the second of each of those occasions for D Town.  I have substituted D Town for Sydney and I have changed the times to 10.00 am to 1.00 pm. 

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 9 February 2015.

Associate:     

Date:              3 March 2015