Horn and Gabin (No 2)

[2011] FamCA 729

FAMILY COURT OF AUSTRALIA

HORN & GABIN (NO 2) [2011] FamCA 729

FAMILY LAW – CHILDREN – Child  7 years – Long history of parental conflict – Mother and child live at Sunshine Coast – Father lives at Gold Coast – Father proposes to relocate to Sunshine Coast – Whether child’s time with father should be ordered according to father’s current living arrangements or prospective living arrangements – No evidence of likely effect on child of change in her living arrangements by spending increased time with father including overnight time if he should relocate to the Sunshine Coast – Child’s best interests met by not making prospective orders in the event of father’s relocation – Need for evidence of stability in father’s accommodation and employment if he relocates in the future – Need for evidence then of likely effect on child of increased time if father relocates in the future – Safety issues considered – Whether actual or likely psychological harm to child considered – Child’s meaningful relationship with father considered – Final order made for child to spend time with father on alternate Saturdays at Sunshine Coast – Changeover venue considered – Venue closer to child’s home considered to be in child’s best interests

Family Law Act 1975 (Cth) s60CC

G & C [2006] FamCA 994
Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark (2009) FLC 93-405

Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Horn

RESPONDENT: Ms Gabin

FILE NUMBER: BRC 12027 of 2007

DATE DELIVERED: 19 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 10, 11 and 12 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farr

SOLICITORS FOR THE APPLICANT: Feeney Family Law

COUNSEL FOR THE RESPONDENT: Ms McDiarmid

SOLICITORS FOR THE RESPONDENT: Pippa Coleman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ashcroft

THE INDEPENDENT CHILDREN’S LAWYER: Ms Dooley
Dooley Solicitors

Orders

IT IS ORDERED

Parental responsibility

1. The mother have sole parental responsibility for S born … January 2004 (the child) for decisions in relation to the major long-term issues concerning her including her education both current and future, religious and cultural upbringing, health, name and any changes to her living arrangements that may make it significantly more difficult for her to spend time with the parties or either of them.

2. Before making any decisions about any of those issues the mother must:

   (a)advise the father in writing of the decision intended to be made

   (b)seek the father’s written response

   (c)consider, by reference to the child’s best interests, any response by the father before making the decision and

   (d)advise the father in writing as soon as reasonably practicable of the decision.

Living arrangements

1. The child live with the mother.

2. The child spend time with the father on each alternate Saturday between 9.00am and 4.30pm.

Changeover

1. Changeovers occur at V Contact Centre at Town 1, with the mother to deliver the child to that venue at the commencement of time and the father to return the child to that venue at the conclusion of time.

Telephone communication

1. The child have telephone communication with the father each Wednesday between 6:30pm and 7:00pm, with the child to initiate the call.

2. The mother is to facilitate the child’s calls with the father by reminding the child when it is time for the calls, but otherwise must afford the child privacy for the calls.

Information

1. The parties must notify each other as soon as practicable of any serious accident or injury concerning the child, and for that purpose each must keep the other informed as to a residential or mobile telephone number.

2. The mother must authorise the child’s school to provide to the father at his request and expense copies of school reports concerning the child, school photographs and other information and documents usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Non denigration

1. The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the child.

Father not to question child about mother

1. The father must not when spending time with the child or during telephone communication with her question the child about the mother or make adverse remarks about the mother these orders or any court proceedings.

All other orders discharged

1. All other orders concerning the child are discharged.

All other applications dismissed

1. All other applications concerning the child are dismissed.

Independent children’s lawyer

1. The independent children’s lawyer is discharged.

IT IS NOTED that publication of this judgment under the pseudonym Horn & Gabin (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12027 of 2007

Mr Horn

Applicant

And

Ms Gabin

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings concern S born in January 2004, 7½ years (the child). S’s parents Mr Horn (the father) and Ms Gabin (the mother) have competing applications concerning suitable parenting orders for her.

2. This is the second set of parenting proceedings concerning S, the first being proceedings in the Federal Magistrates Court.

3. These proceedings were commenced on 18 October 2007. The matter was transferred from the Federal Magistrates Court to this Court by Spelleken FM on 21 December 2009 after the matter had proceeded to trial before her Honour but, for reasons which she then gave, made only interim orders rather than a final order.

4. The interim order made by Spelleken FM on 21 December 2009, relevantly, provided that S live with the mother and, after the fulfilment of certain conditions, that she spend time with the father, unsupervised, on alternate Saturdays between 9.00am and 4.30pm, with changeover at V Contact Centre at Town 2.

5. That regime has continued, with minor modification by me by a consent order made on 12 October 2010, when the matter came on before me as Day 1 in the Less Adversarial Trial process.

The parties’ proposals

1. By the conclusion of the trial, the father proposed that S live with the mother; the mother have sole parental responsibility for S; that in exercising sole parental responsibility he consult with her in writing; that until the father relocates to the Town 3/Sunshine Coast area S continue to spend unsupervised time with him but that it occur on alternate Sundays from 9.00am until 4.30pm with changeover to continue to occur at V Contact Centre at Town 2; that upon the father relocating to the Town 3/Sunshine Coast area S spend time with him as agreed between the parties, but failing agreement according to a staggered process comprising Phases 1- 4, namely for the first 3 months on alternate weekends from 9.00am Saturday until 4.30pm Sunday; for the next 3 months on alternate weekends from 9.00am Saturday until 4.30pm Sunday and in alternate weeks from after school Wednesday until 7.00pm Wednesday; for the next 3 months on alternate weekends from 9.00am Saturday until 4.30pm Sunday and in alternate weeks from after school Wednesday until before school Thursday; and for the next 3 months on alternate weekends from after school Friday until before school Monday and in alternate weeks from after school Wednesday until before school Thursday; with changeover at V Contact Centre at Town 1, other than in relation to changeover before and after school, and other than for the Phase 2 changeover at 7.00pm on Wednesday nights, to be at the Town 3 Police Station. Whilst the 4 phases contemplated four segments of 3 months each, it seemed to be fairly plain at the trial that after the achievement of Phase 4 it should continue by way of final order.

2. The father’s proposal included also that he contact a Dr W to arrange a mental health plan for the father to attend psychological counselling, and that he attend a Parenting Orders Program through Counselling Service 1 at either the Gold Coast or the Sunshine Coast and that he supply evidence to the independent children’s lawyer of completion of those matters.

3. The father’s proposal included also that he receive information from S’s school, and attend parent teacher interviews and other activities which parents usually attend, there be telephone communication with S on three occasions in each week, information as to the parties’ residences and telephone numbers, a non-denigration clause, and a provision that the parties encourage and not undermine S’s relationship with the other party.

4. The father’s proposal included also that the parties attend family dispute resolution if there be dispute between them as to implementation or enforcement of the orders.

5. The father’s proposal contained a notation that he intends to relocate to the Sunshine Coast area by no later than 31 October 2011.

6. The mother proposed that S live with her; she have sole parental responsibility for S, with no obligation to consult with the father before making decisions in relation to the major long-term issues; and that S spend time with the father on alternate Saturdays between 9.00am and 4.30pm with changeover at V Contact Centre at Town 1.

7. The independent children’s lawyer, at the outset of the trial, proposed that S live with the mother and that she have sole parental responsibility for the child, but with a requirement that she consult the father before any final decision in relation to the major long‑term issues; leaving open the matter of the time S should spend with the father and communication with him until the conclusion of the evidence.

8. After the conclusion of the evidence, the independent children’s lawyer proposed that S spend time with the father on alternate Saturdays between 9.00am and 4.30pm with changeover at V Contact Centre at Town 1; there be telephone communication once in each week, with S to initiate the calls; and there not be any orders predicated upon the father’s intention to relocate to the Sunshine Coast area.

Background

1. The matter is marked by a long litigation history comprising two sets of proceedings, and two trials in the second proceedings, being the current proceedings.

2. The parties had a brief relationship between late 2002 and mid 2003, during which time S was conceived. S was born in January 2004. After her birth the parties had brief periods of reconciliation. The mother says they separated finally in July 2004, however, between then and February 2005 their relationship continued on the “on and off” basis and at those times they were “living together” at the Gold Coast.

3. The father is 45 years. He lives at Town 4, on the Gold Coast. He is employed as a manager for Company 1 in the Logan City area, having held that employment for about 3 months at the time of the trial. Before that he worked in the security industry at Surfers Paradise with Company 2. He lives in an apartment at Town 4 which is rented, with the lease expiring, as at the time of the trial, in about 2-3 months. He lives alone and has not re-partnered, his last relationship finishing about 10 months before the trial. He has a driver’s licence. He had lost it for drink driving, and then unlicensed driving, but has held his driver’s licence again since January 2011. The period of suspension, it appears, was about 2 years and 8 months (8 months initially for drink driving, and then 2 years for unlicensed driving during the 8 months suspension period).

4. The father has two other children, T 19 years, and R 6½ years. T lives at Town 5 with her boyfriend. R lives with her mother. She does not spend time with the father. There are no proceedings on foot presently concerning R, whom the father has not seen for about 3½ years. R’s mother is Ms F.

5. The father said that he intends to move to the Town 3 area of the Sunshine Coast in October 2011. He has made inquiries about employment there, and provided a curriculum vitae to Company 3 at Town 6, and Company 4 at Town 7. He proposes also to make inquiries of his “boss” at Company 1 as to whether he can transfer with Company 1 to Town 1. However, the person the father needed to speak to was overseas at the time of the trial, and the father needed thus to wait until he returned, to investigate a transfer to Town 1 with Company 1.

6. He said that he proposed, upon relocation, to rent a 2 bedroom apartment, and to live alone, to ensure that the second bedroom be free for S. At the time of the trial however he had not yet investigated accommodation at Town 3, or elsewhere on the Sunshine Coast, on the basis that first he needed to secure his employment and commencement date for it and then to make accommodation arrangements.

7. The father said that he pays assessed child support for S deducted from his wages, and that a component of his tax refund was taken for child support for S. He does not anticipate any gap in employment in moving from the Gold Coast to the Sunshine Coast and thus no gap in child support payments.

8. The father has lived in the Gold Coast region for about 20 years. He said however that his motivation in deciding now to move to the Sunshine Coast is “because [S] needs both her parents”.

9. The mother is 27 years. She lives at Town 3, on the Sunshine Coast, with her partner of 5 years Mr Nixon, S, and Y who is the daughter of the mother and Mr Nixon born in March 2008, now 3 years.

10. Mr Nixon has two other children, M 12 years, and L 9 years, who spend 3-4 days in each week with the mother and Mr Nixon from Saturday until before school on Tuesday.

11. M, L and S attend the Town 3 State Primary School, M in year 7, L in year 4 and S in year 2. Y attends day care. It is proposed that she will commence at the same school in her prep year, 2013.

12. S is known at school and amongst her peers by the surname Nixon as her “preferred name”. Her surname otherwise (for example with Medicare) is Gabin, the mother’s surname, the mother explaining that “everything is [Gabin]” except for S’s known name at school as Nixon.

13. Mr Nixon is qualified in a role in the hospitality industry. He owns a hospitality business at Town 3.

14. The mother primarily cares for “the children”, meaning S and Y, as well as M and L when they are in the home from Saturdays until before school on Tuesdays. However, the mother also assists Mr Nixon in the hospitality business.

15. The children’s school, Town 3 State Primary School, is a short distance from the mother’s and Mr Nixon’s home. S and Y are driven to and collected from their school by either the mother or Mr Nixon. When M and L live with the mother and Mr Nixon they also are driven to and collected from school.

Time spent by S with the father since the parties’ separation

1. S has lived with the mother since her birth, except for the period between February 2005 and July 2006 when, pursuant to a court order obtained by the father, S lived with him. As mentioned, the parties separated initially in July 2004. In August 2004 the father commenced court proceedings concerning S. In February 2005, the parties were in a period of reconciliation. The father said that he told the mother about the court proceedings and that she did not attend. The mother said that she had no idea that the father was applying for an order that S live with him and regarded that as a deception on her. In any event, S recommenced to live with the mother in July 2006.

2. There have been ongoing court proceedings concerning S, thus, since August 2004, when she was only 7 months old. In summary:

   August 2004

   ·In August 2004 (when S was about 7 months) the father commenced proceedings in the Federal Magistrates Court for an order that S live with him

   ·In those proceedings, in February 2005, the father obtained an order that S live with him

   ·In July 2006, a final order was made in those proceedings that S live with the mother and spend time with the father as arranged between the parties

   October 2007

   ·In October 2007 (when S was 3½ years) the father commenced these proceedings

   ·The history of orders and time spent since then helpfully is set out by Counsel in a schedule: exhibit 10. The schedule shows some 6 or so interim orders in the proceedings, culminating in the interim order made by Spelleken FM on 21 December 2009, after a trial, with, as said previously, a variation of that interim order made by me, by consent, on 12 October 2010. Presently, it is not necessary to analyse exhibit 10, save to observe that it demonstrates that on occasions, and for periods, the orders have not been successful and that on other occasions and for other periods the orders have been successful. The father gave evidence that in May 2009 (see exhibit 10, p2) he explained to Ms N at V Contact Centre at Town 2, that he was unable to continue the travel regime from the Gold Coast to the Sunshine Coast, a considerable distance, particularly as for part of that time he did not have a driver’s licence. In particular, as the father’s affidavit filed 6 June 2011 demonstrates, he experienced great difficulty in train travel and the “constant battle” to see S. I will set out one paragraph of the father’s affidavit filed 6 June 2011 as illustrative:

   3.   It has been a constant battle to get up and see my daughter. I would finish work at 3.30am catch a train at 5.09am to Brisbane change to another train to [Town 2] then change again to [Town 8] and then bus to [Town 1] then walk 20 minutes to the Centre. This would happen 2 days in a row. I would get back at 7.00pm and start work at 7.00pm. There is a couple of times I did not make it but I always rang and told them. These days I would miss is due to being sick or run down or problems at work where police were involved and I would miss my train. There were times I would get all the way up there to the centre and to be told that the mother is not coming so I had to wait to 2 hours to get a bus back to the train station. It has been a constant battle to see my daughter for about 18 months I think at [V Contact Centre at Town 1].

3. In short, it would appear that the combination of train and bus travel and walking occupied 2½-3 hours in the morning, with the same in the afternoon, for the father to spend time with S on the contact days.

4. The mother, for her part, said that she always endeavoured to give timely notice of any necessary cancellation, which assertion the father disputed.

5. Counsel provided time and other records of the Contact Centre: exhibits 1, 2 and 5, emphasising cancellation dates and other matters.

6. However, it is not necessary for me, for present purposes, to refer to this evidence in detail, but rather observe, by reference to exhibit 10, and exhibits 1, 2 and 5, that in the current proceedings, which commenced in October 2007, the interim orders have had only partial success.

Issues

1. Ms B, the family consultant appointed to the matter, identified in her Children and Parents Issues Assessment 23 June 2010 the issues to be:

   ·The capacity of each parent to provide for S’s practical, developmental, emotional and social needs

   ·The impact of the parental conflict and domestic violence on S and the implications of this regarding time spent with her father.

2. As the trial developed however, the issues which emerged for determination narrowed to the following:

   ·Whether in the exercise of sole parental responsibility the mother should consult with the father before making decisions

   ·Whether, for as long as the father continues to live in the Gold Coast region, his alternate weekend time with [S] should be Saturday or Sunday, and whether the changeover venue should be [V Contact Centre at Town 2] or [V Contact Centre at Town 1]

   ·Whether it is in [S’s] best interests that at this stage and in these proceedings I make a final order concerning time [S] should spend with the father after he relocates himself the [Town 3]/Sunshine Coast area

   ·Whether (as raised by Ms McDiarmid of Counsel, for the mother) the father has caused psychological and/or emotional harm to [S], and has a limited capacity to meet her physical, developmental, psychological and emotional needs

   ·Other issues raised by Ms McDiarmid in respect of which she sought findings, which presently I will not set out but which are detailed in her written submissions at p 2.

Principles relevant to parenting orders

Children’s best interests paramount

1. Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

1. Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:

   ·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

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

   ·and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:

   ·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

   ·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

   ·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   ·parents should agree about the future parenting of their children; and

   ·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

1. Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.

2. The primary considerations are:

   ·the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The additional considerations are too numerous to set out.  However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

1. Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.

2. Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time 

1. Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:

   ·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and

   ·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

2. Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:

   ·days that fall on weekends and holidays; and

   ·days that do not fall on weekends and holidays;

   and:

   ·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

   ·allows the child to be involved in occasions and events that are of special significance to the parent, although regard may be had to other matters.

3. Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:

   ·how far apart the parents live from each other; and

   ·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

   ·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   ·the impact that an arrangement of that kind would have on the child; and

   ·such other matters as the Court considers relevant.

Prior parenting plans

1. Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

1. The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

1. Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

1. The father relied on evidence by himself.

2. The mother relied on evidence by herself, and Mr Z, whom she regards as her stepfather, and who has acted in her life as her “father figure” for many years.

3. The independent children’s lawyer relied on evidence by Dr C, psychiatrist, in relation to his reports concerning the parties dated 13 and 15 September 2008 respectively, annexed to affidavits by him each filed on 5 November 2008; two reports by Mr M, social worker, dated 3 July 2008 and 3 March 2009, annexed to affidavits by him filed on 12 August 2008 and 23 March 2009 respectively; the Children and Parents Issues Assessment dated 23 June 2010 by Ms B, as mentioned, annexed to an affidavit by her filed 23 June 2010, and a family report by Ms B dated 27 May 2011, annexed to her affidavit filed 31 May 2011.

The statutory matters

The child’s best interests

1. I turn now to the statutory matters concerning the child’s best interests. 

Section 60CC(2) – the primary considerations

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of her parents

1. The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship. 

2. Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.

3. In relation to the issues in the case, Mr B said that in her view continuance of alternate weekend time with the father, and weekly telephone communication, is sufficient for S to maintain her existing meaningful relationship with the father, and further that such would limit her exposure to conflict between her parents.

4. The father gave evidence, which there is no reason to doubt, that when S spends time with him, she enjoys herself very much and that they engage in many activities.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

1. There is no evidentiary basis to conclude that there is a need to protect S from the risk of physical abuse, neglect or harm.

2. Ms McDiarmid, for the mother, sought specific findings that there is a need to protect S from the risk of psychological harm by the father.

3. Ms McDiarmid, in her written submissions, p2, seeks the following findings (bullet points 1 and 3):

   ·no evidence was presented to establish that [Mr Z] presents an unacceptable risk to [S]

   ·the father has caused psychological and emotional harm to [S].

4. In relation to the first of these matters, some background is necessary.

5. Mr Z said in his affidavit that he is not related to the mother but has been her “father figure” for many years. He said that the mother, was a “street kid” in Sydney when he first met her, and that they have had a “father-daughter” relationship since that time. He said that when he sold his business in Sydney, and moved to Queensland, the mother came with him, having shown a willingness to assist in his business in Sydney, and that she was appreciative of the support he provided for her. Mr Z now is a retired businessman living in the Town 7 area.

6. The father alleges that during a conversation with Mr Z, at Town 9, Mr Z told him that he had slept with a 14 year old girl. Mr Z denied that such had occurred, and denied that he had told the father that, asserting that he has never had lunch with the father, at Town 9, or anywhere, and has never had a conversation with him, beyond initial introduction by the mother when she commenced seeing the father.

7. Mr Z impressed me as a witness of truth, candid in his manner.

8. He said that when he first met the father “the hairs went up on the back of my neck”, and “I said the night I saw him ‘he’s trouble’ ”, and that when the mother brought the father to his apartment to introduce him as a person she had commenced seeing, he had thought “No, this won’t happen”.

9. I accept Mr Z’s evidence, and find accordingly that it is unlikely that Mr Z would have lunched with the father, at Town 9 or anywhere else, and unlikely thus that the conversation the father asserts occurred.

10. In relation to the second of these matters, during argument I challenged Ms McDiarmid as to the existence of evidence by Ms B, or any other expert witness, that the father “has caused” psychological and emotional harm to S, as opposed to the “potential” for that to occur.

11. During submissions, the different recollection by Ms McDiarmid and by me resulted in my saying that I would order a transcript of Ms B’s evidence, 12 August 2011, having regard to the importance of this aspect of the matter.

12. Since the trial, I have examined the transcript of Ms B’s evidence 12 August 2011, and am satisfied that the effect of her evidence is the potential for the father to cause psychological harm for S, rather than that already having occurred.

13. The incidents under discussion with Ms B concern a Facebook entry belonging to the father, but not made by him, concerning his daughter T: exhibit 6; a Facebook entry belonging to him and made by him concerning a threat to “smash” at a football game a person who assaulted T and caused her physical injury: exhibit 7; a report by S to Mr Z of a statement made to S by the father about Mr Z “[The father] says Poppy kills little girls”, “Poppy” being a reference to Mr Z, who effectively is S’s grandfather figure, and asking S “Does anybody hurt you”, in an inferential context, without S having suggested that anyone had hurt her; and the father writing on a finger painting by S the name “S [Horn]”; and writing on her arm “S [Horn]”.

14. In relation to the Facebook entry, exhibit 6, the transcript 12 August 2011 shows the following, Ms McDiarmid posing the questions:

    Would you be prepared to say, just on the basis of this, that he could present an emotional risk to his daughter – I’m sorry, a risk of emotional harm to his daughter, [S]?---I think that that’s a possibility. It doesn’t necessarily follow that he would behave the same way with his daughter, [S], but what worries me is that he doesn’t appear to have the boundary to stop talking about one daughter so, in the future when [S]’s older, he could quite easily speak in the same way to her, and that would be an embarrassment to [S]. It would not be helpful with her at all.

    …

    …The gist of what I was trying to say is that although it – there are – I – I can’t anticipate that he would behave the same way with [S]. The fact that he has already done so with one daughter is concerning that he may do that with the future with – with his other daughter. (emphasis added)

15. In relation to exhibit 7, Ms B said that the Facebook entry and circumstances surrounding it were “concerning” (T7/27) and said further (T7/38-42):

    If anything did happen with [S], if she was in the environment that the father was in and she was hurt in some way, accidentally or deliberately, by somebody who the father was associating with, I would be concerned about the way the father would behave to that person - - -

16. In relation to the statement attributed to the father (which the father denies) “Poppy kills little girls”, and questions as to whether anybody had hurt S, Ms B said (T8/40-45)

    …I – I think that she is asked too many questions by her father and I think that if – if a parent asks a child, has anybody hurt you, in – in the context of a – of perhaps there being some risk or – or concern, then that – that would seem appropriate. But my understanding is that [S] is – is asked questions by her father of – of a more insistent nature and I think that she’s pressured – feels pressured by that and – and that’s not a helpful thing.

    and (T9/14-28)

    …Would you agree with me that it’s emotionally damaging for [the father] to suggest to her that she has some reason to be fearful of Poppy?---Certainly if there’s no reason for him to have those concerns, and I mean, I – I don’t know the man myself, so, I – I can’t categorically say whether he is or isn’t a harmful person to the child. But I did not get the impression from my assessment that there was any validity to any claims, and certainly, if he’s a – a man who is important in – in [S’s] life, is a support to her mother and a – significant figure in – in [S’s] life, then yes, I do think that it – it undermines that relationship.

    Yes. And similarly – I should have asked you this question before about – when I was asking you about the violent tendencies as expressed in that Facebook comment about assaulting somebody. Would you agree with me that those things we were discussing indicate that [the father] presents some degree of emotional risk to his daughter – risk of emotional harm?---Yes, I – I think there is some risk. (emphasis added)

17. In relation to the finger painting and arm painting, and use of the name “S [Horn]”, Ms B said that such suggests that the father is wanting S to understand that his name of Horn is part of her heritage. She expressed concern about the name being written on her arm, but not so much on the piece of paper “unless it created an issue for [S] herself”, but agreed that the experience could have been “confusing” for her” (T10/45 and 11/1-10).

18. In re-examination by Mr Ashcroft, for the independent children’s lawyer, Ms B said (T21/42-22/6):

    [Ms B], you were asked about or you gave evidence about the emotional abuse that the father could potentially cause to [S]?---Yes, I did.

    Is it your view that the father will or has caused emotional abuse to [S]?---It’s my view that [S] has been emotionally impacted by the conflict which has been going on since she was a baby, and I believe that that is probably the most damaging thing to her emotional wellbeing. However, I also believe that, as part of that conflict, she has additional pressure, particularly more recently from her father, to indicate that she wants to spend more time with him when she probably says one thing to him and another thing to the mother. I think it’s – she’s only seven years old and she’s feeling like she has to make the choices and say some things that, you know, she may feel one day but not the next. (emphasis and underscore added)

19. In relation to the reference in this passage to emotional impact on S by “the conflict which has been going on since she was a baby”, Ms B said earlier in her evidence that there is “higher than normal” conflict in the matter, and that it is one of “particularly high conflict”. When asked whether she agreed with Mr M’s view that the conflict was “the worst that he had seen”, Mr B said “I would probably say one of the worst” but “not the worst”: T14/32-40. The conflict plainly involves both parents. I note that in the passage extracted, Ms B referred to “additional pressure” from the father.

20. However, overall I am unable to read Ms B’s evidence as containing anywhere the opinion that S presently is suffering psychological or emotional harm, at all, let alone caused by the father, as opposed to that possibility and future potential.

21. Certainly however Ms B said that S has been “emotionally impacted” by the conflict between her parents, which has been “going on since she was a baby”, and that it is this conflict which “is probably the most damaging thing to her emotional wellbeing”.

22. I therefore reject Ms McDiarmid’s second submission that there should be a finding that the father “has caused” psychological and emotional harm to S.

23. Here, I would add reference to Ms B’s evidence in her family report, par 38, set out below, as to a conditional opinion that:

    … If the court accepts what [the mother] has said about [the father’s] pressuring of [S], then [the father] has also harmed [S] emotionally … (emphasis added)

24. This was a hypothesis, not a clinical assessment.

25. The independent children’s lawyer, by Mr Ashcroft, specifically submitted that no finding is sought by the independent children’s lawyer of unacceptable risk to S of spending time with the father on the basis of the arrangements presently in place.

Section 60CC(3) – the additional considerations

Any views expressed by the child

1. The mother said that S has never asked to spend more time with the father.

2. The father said that S constantly asks him about spending more time with him.

3. S is 7½ years.

4. The high conflict between her parents, and the litigation history, in combination with her age, have effect that any expressed views by her be given little weight.

The nature of the child’s relationships

1. S’s primary attachment is with the mother.

2. S has however a strong relationship and bond with the father.

3. S has a very close relationship with Mr Nixon, M, L and Y.

4. There is little evidence of her relationships otherwise, with extended family.

5. There is evidence however that she has “many friends from school and in the neighbourhood and happy interaction with them”.

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

1. The father criticises the mother for not having such willingness and ability.

2. The mother however impressed me during the trial as having such willingness and ability, by her agreeing in her oral evidence that if the father should relocate to the Town 3/Sunshine Coast area, his proposal as to Phases 1-4 would be in S’s best interests. She said to the effect that such is “quite hard”, given his history, but that if in the future he should show stability after a move to the Town 3/Sunshine Coast area, the father’s proposal would allow S to develop her relationship with him.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other child or person (including any grandparent or other relative of the child) with whom he or she has been living

1. It is common ground that there is no evidence of the likely effect of any changes in S’s circumstances, or on S, if the father should relocate to the Town 3/Sunshine Coast area, and his Phase 1-4 proposal were implemented, nor indeed of any change to overnight time or increased time with the father, if he should relocate.

Practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This issue arises, presently, in respect of the dispute between the parties as to changeover venue, rather than the issue of the time S spends with the father.

The parties’ capacities to provide for the child’s needs, including emotional and intellectual needs

1. This matter does not presently arise, given that it is common ground that S live with the mother, and that the issue of the time she should spend with the father, apart from alternate weekend time, is very much dependent upon whether, in the future, the father relocates to the Town 3/Sunshine Coast Area.

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

1. According to the mother, S is a healthy young girl who enjoys life, has many friends at school and in the neighbourhood and who is doing very well at school. She attends dance school at Town 3, involving two afternoons each week, after school, and has received a dance trophy. The mother says that S enjoys attending school, and her report cards have been very positive. The mother says that S is “settled at home and at school” and has a very close relationship with M, L and Y, and that together, with she and Mr Nixon, they operate as a close family unit.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Each of the parties has demonstrated love for S, and to the responsibilities of parenthood.

2. I will observe, in the father’s favour, that his commitment is amply demonstrated by the difficult and arduous train and bus travel to spend time with S, when he did not have a driver’s licence, although ultimately for a while that became too much for him.

3. The father’s stated commitment to moving to the Town 3/Sunshine Coast area in the near future, whether or not this occurs, is further indication of his commitment to S and the responsibilities of parenthood.

4. Indeed, as submitted by Ms Farr in her opening statement in submissions, after 7 years of litigation “He is still here”, meaning to endeavour to spend more time with S, because of his belief that she needs both parents in her life, and his willingness to undertake mental health therapy counselling and other programs as outlined in his proposal, to which I have already referred.

Family violence involving the child or a member of the children’s family or family violence order

1. In the past, the mother has obtained two domestic violence orders against the father, namely in 2004 and 2006, neither of which, as I understand the father’s evidence, he contested.

2. On 1 May 2008, he was dealt with for breach of the latter order, with 2 charges, for incidents on 30 December 2006 and 5 January 2007, in respect of which no conviction was recorded and he was fined $200, comprising one penalty only: exhibit 13, father’s criminal record.

3. There is no history of family violence concerning S.

4. There are no current family violence or protection orders in place.

5. It is not necessary, given the limited matters to be determined, to canvas in more detail the incidents leading to the past domestic violence orders.

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

1. Mr Ashcroft, for the independent children’s lawyer, submitted that this is a matter in which future litigation is inevitable, urging that I not make orders for increased time for S to spend time with the father on the basis that he intends to move to the Town 3/Sunshine Coast area, but that such should be considered by the Court in fresh proceedings, only if the father “puts his house in order” by in fact relocating to the Town 3/Sunshine Coast area, and demonstrating stability there in both his employment and accommodation.

2. It is difficult to assess whether, if I were to make orders in terms of the Phase 1-4 proposal of the father, and he did proceed to locate to the Town 3/Sunshine Coast area, such may be likely to lead to further proceedings because at this stage there is no evidence as to likely effect on the child or her circumstances if such orders were to be made and implemented.

3. Further, if the father does relocate to the Town 3/Sunshine Coast area, a very real question would arise as to further emotional impact on S of the parties and their conflict, particularly having regard to Ms B’s evidence that in her view S has been “emotionally impacted” by the conflict which has been “going on since she was a baby”, to which evidence I have earlier referred.

4. Thus, there are other factors in the case of more weight than whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. I acknowledge that if I do not make orders in terms of the father’s proposal, and he does relocate to the Town 3/Sunshine Coast area, further proceedings may be inevitable. However, even if I were to make orders in accordance with the father’s proposal, whether such would be likely to lead to further proceedings is unpredictable, such a regime being untested, and there being no evidence of the likely impact of it on the child, or whether such may be likely to lead to further conflict between the parties.

Other matters

1. Ms McDiarmid, in her written submissions, p2, sought the following further findings (bullet points 2, 4, 5, 6 and 7):

   ·    the mother adequately provides for [S’s] physical, psychological, intellectual and emotional needs

   ·    the father has a limited capacity to meet the physical, developmental, psychological and emotional needs of [S]

   ·    the father lacks child focus

   ·    the father’s time spent with [S] has been irregular by his own choice

   ·    the father’s commitment to [S] has been inconsistent.

2. The first of these, concerning the mother, was not seriously challenged at the trial. Ms B said in her family report (par 36) that she assessed that the mother adequately provides for S’s practical, developmental, emotional and social needs including promoting a meaningful relationship between S and the father “with due consideration for safety issues”.

3. In my view, the finding sought by Ms McDiarmid is not necessary for me to determine the matter, particularly because there is no issue that S should live with the mother, and that she have sole parental responsibility for her. However, as the finding is sought, and initially the issue was identified by Ms B in her Children and Parents Issues Assessment, I will make the finding sought.

4. The other 4 findings sought concern the father.

5. As to the first 2 of these, his capacity to meet the physical, developmental, psychological and emotional needs of S were assessed by Ms B, which included an observation that he lacked child focus: family report, pars 37 and 38 which I will set out:

   37.However I am not able to confidently say that [the father] adequately provides for all of [S’s] needs. His recent capacity to provide for her educationally has not been tested within the context of current arrangements and the distance between the parents’ homes would also preclude his active involvement in her schooling. I assess that [the father] has the capacity to provide for some of [S’s] practical needs, although it is still questionable whether he has adequate provision for [S] if she were to stay overnight. [The father] may have some degree of awareness and understanding of [S’s] developmental needs, but his comments in interview regarding the usefulness of the parenting course are cause for some concern. At times when observed in interaction with [S] [the father] lacked a child focus, tending to tire of the games she wanted to play and introducing some more teasing and conflictual elements to the game as if to liven it up for his own benefit.

   38.When [the father] refused to consider a change from Sunday to Saturday visits even though this would enhance [S’s] family time with her mother, stepfather and siblings, he displayed no insight into his daughter’s emotional need to part of that family. His response was antagonistic and competitive and not at all child focussed. If the court accepts what [the mother] has said about [the father’s] pressuring of [S], then [the father] has also harmed [S] emotionally by placing her in the uncomfortable position of being expected to choose between her parents rather than being encouraged to enjoy positive relationships with each of them without worry or guilt. (emphasis added)

6. In relation to these matters, as there is no reason to doubt Ms B’s evidence, I make findings in accordance with it.

7. As to the last 2 matters, I have observed already that the father had difficulty in travelling from the Gold Coast to the Sunshine Coast while his driver’s licence was under suspension, such that it is a little unfair I think to allege that the time he has spent with S has been “irregular by his own choice”. Accordingly I will not make that finding, particularly against the background of the parties’ own conflict. Similarly, it is difficult to assess whether the father’s commitment to S has been “inconsistent”, against the same background, and accordingly I will not make that finding.

8. Moreover, findings as to these aspects of the matter are not necessary for me to determine the matters in issue, and touch rather on the aspect of “blame”, rather than necessarily S’s best interests now.

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

1. It is necessary to 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 in particular 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; and to spend time with and communicate with the child; and has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the child; and spending time with and communicating with the child; and has fulfilled or failed to fulfil the parental obligation to maintain the child.

2. These matters have been sufficiently canvassed in the s 60CC analysis.

3. In relation to child support, it appears that the father is paying and has paid assessed child support for S, by deduction from his wages and a tax refund. In these circumstances, it is not necessary to canvas the evidence about the specific amounts paid from time to time.

Discussion and conclusions

Child to live with mother

1. It was agreed at the trial that the child should live with the mother.

Parental responsibility

1. It was agreed at the trial that the mother should have sole parental responsibility for the child in relation to the major long-term issues concerning her.

2. The mother sought that there be no obligation on her to consult with the father before making decisions.

3. The father sought that there should be such an obligation, by consultation in writing.

4. The independent children’s lawyer supported that such consultation should occur.

5. I am mindful of the history of parental conflict in the matter. However, consultation need not be face to face, and can be achieved by the mother seeking the father’s views in writing, and the father responding in writing.

6. In my view, S’s best interests would be met by her having the benefit of the father’s views expressed to the mother in relation to the major long-term issues, and for the mother to consider the father’s views before making decisions, as an aspect of parenting by the father of S, of which benefit S should not be deprived.

7. Ms McDiarmid said in final submissions to the effect that provided any consultation process be in writing, the mother could “live with that”.

8. In all of the circumstances, in my view, S’s best interests would be met by the consultation process described, and I will so order.

Equal time / substantial and significant time

1. The circumstance that the mother will have sole parental responsibility has effect that I am not required to consider whether equal time or substantial and significant time would be in S’s best interests or reasonably practicable.

2. I note that the father’s proposal for S to spend time with him after he should relocate to the Town 3/Sunshine Coast area potentially would amount to substantial and significant time, being 4 nights in each fortnight, with involvement on school days and weekend days, and other matters fitting the criteria in s 65DA(3) and (4).

3. However, in this particular case, it is preferable to approach the matter having regard to the parties’ specific proposals relating to the time S should spend with the father. Indeed, that was the basis upon which the trial was conducted.

Best interests – what order should be made in relation to the time the child spends with the father

1. It is common ground that until the father should relocate to the Town 3/Sunshine Coast area, S should continue to spend time with him on one day in each alternate weekend, either Saturday or Sunday, from 9.00am until 4.30pm.

2. The issues are:

   1.Should that day be Saturday or Sunday

   2.Should changeover be at V Contact Centre at Town 2 or V Contact Centre at Town 1

   3.Should the order be limited to such time, or include provision for increased time if the father should relocate to the Town 3/Sunshine Coast area.

Saturday or Sunday

1. The father favours Sunday on the basis that his present employment, and likely prospective future employment, in the three industries he mentioned, after relocation, inevitably will require him to work on Saturdays, so that to order Saturday time would have the effect that he would not be able to avail himself of any order that he spend time with S on Saturdays.

2. The mother said however that in her household, Sunday is “family day”. She explained that the hospitality business operated by Mr Nixon and herself at Town 3 is open 7 days per week between 8.00am and 4.00pm, except Friday, 8.00am until 7.00pm, and that she works in the hospitality business on Saturdays. She said that the economic conditions on the Sunshine Coast are such that there is “slowness” in the business community, such that many workers who reside on the Sunshine Coast now travel to Brisbane and other areas for work. She said that in consequence she has undertaken increased work in the business as it is “not financially possible to continue to employ staff with the exception of Sundays”, “when it is not possible for either of us to work because of commitments to the four children” (affidavit, 48).

3. It was put to the mother by Ms Farr that Sunday was thus the family day “by election”, to which the mother responded “Yes”. She then said however that L is involved in sport on Sundays, and that presently the children do not have extra curricular activities on Saturdays. For these reasons, the mother works in the hospitality business on Saturdays.

4. The positions of the father and the mother at the trial were intractable about this issue, with seemingly no basis to decide either way, until in her oral evidence the mother pointed to the circumstance that “We only get [M] and [L] on Saturday night”, so that “only Sunday can be the family day”.

5. The mother’s affidavit (par 46) had described that “on Saturday we also have [L] and [M] arriving and they live with us until they go to school on Tuesday morning”. This seemed to read that L and M are with the family during the day on Saturday. However the clarification in the mother’s oral evidence, that M and L arrive “on Saturday night”, has effect that if S should spend each alternate Sunday with the father, she would miss out on “the family day”, Sunday, in each alternate weekend, by her being with the father while, on the Sundays, the mother, Mr Nixon, M, L and Y are enjoying “the family day”; whereas if S should spend time with the father on alternate Saturdays, she would have the benefit both of spending time with the father on alternate Saturdays and on each Sunday enjoy “the family day”, Sunday, in the household in which she lives.

6. As mentioned earlier, M is 12 years, L 9 years, S 7 years and Y 3 years. The mother said the children are all “very close” and described the household also as “very close”.

7. Further, I listened very carefully to the father’s evidence as to his present and likely prospective future employment, during his cross examination, as to whether he could arrange with his present or any prospective future employer to not work on alternate Saturdays. The father said “It would be hard for me to get work with no Saturdays”, and “In this industry it is hard to find a job where you don’t work weekends”. He said that as manager in his present employment he is required to be there “when it is open”. He acknowledged however that the place of business of which he is presently manager is open 7 days per week, and that as he does not work 7 days per week, plainly there are times when the place of business is open when he is not there. To this, the father said that he is the only person licensed to operate the industrial machinery at the premises. When put to him that when he is not there (because he does not work 7 days per week) someone else must do this, he appeared caught out.

8. Whilst I accept that the father’s present work, and any prospective future work, requires and is likely to require that he works on some Saturdays, I do not accept that such necessarily would require him to work every Saturday, or that he could not come to some suitable arrangement with his present or prospective future employer, for example, to work Saturdays one weekend and Sundays on alternate weekends, perhaps by arrangement with his co-workers, approved by his employer. 

9. On all of the evidence, I do not accept the father’s contention that if I were to order that he spend time with S on alternate Saturdays that would have the effect either of jeopardising his present employment, or future employment prospects, or that his employment/employer’s needs would have the result that he could not thus avail himself of alternate Saturday time with S.

10. The father challenged also that “on Sundays they leave S at home with a 13 year old while they go bike riding”. Possibly, S told him this. However, even if on “the family day”, there might be such occasions where the two adults and four children are not necessarily together for the whole day, from sunrise until sunset, essentially I accept the mother’s evidence that Sunday in her household is “the family day”, and the only weekend day when all family members can be together.

11. I am strongly persuaded by these matters, and strongly persuaded that S’s best interests will be met by her not being deprived of spending each Sunday, the family days, with the mother, Mr Nixon, M, L and Y, especially in light of my rejection of the father’s contention that if the time S spends with him should be on alternate Saturdays, either his employment will be jeopardised, or alternatively that will have the result that he cannot spend time with S.

1. I will therefore order that the alternate weekend time that S spends with the father be on Saturdays.

V Contact Centre – Town 2 or Town 1

1. Town 2 is about 1½ hours drive from the Gold Coast. Town 1, further north, is about 2¼ hours drive from the Gold Coast. Town 2 and Town 1 thus are about 45 minutes drive: exhibit 11. The additional driving time for the father thus would be about 45 minutes one way or 1½ hours round trip Gold Coast/Town 1, compared with Gold Coast/Town 2.

2. Put another way, driving time for the father would be about 3 hours round trip Gold Coast/Town 2 and about 4½ hours round trip Gold Coast/Town 1. In either case, the drive is “broken” into a morning component and an afternoon/evening component.

3. Time wise, the father would need to leave the Gold Coast at or before 7.30am to arrive at Town 2 at 9.00am and at or before 6.45am to arrive at Town 1 at 9.00am.

4. The return trip from Town 2 would have the father back at the Gold Coast at about 6.00pm and from Town 1 at about 6.45pm.

5. Town 3 is about 15 minutes drive north of Town 1.

6. The father argues that Town 2 is a fairer distance for him, and that the mother should share the driving burden, by travelling from Town 3 to Town 2 return rather than just Town 3 to Town 1 return. The mother however would have a round trip twice on each alternate Saturday (morning Town 3 to Town 1 return or Town 3 to Town 2 return), and repetition of that in the afternoon, being 4 one way trips or 2 round trips because, as she has explained, on Saturdays she works in the hospitality business at Town 3.

7. The mother provided evidence that on some occasions, after she had driven S south from Town 3 to Town 2 (a 1 hour drive, one way) the father in any event then would drive with S to the Town 1 area, spend time with her there, then drive S back to Town 2, only for the mother then, after collecting S from Town 2, needing to drive her north again back to Town 3 such that for S on those days she has travelled 4 times the distance Town 3/Town 2, Town 2/Town 1, Town 1/Town 2, Town 2/Town 3. The mother relied on shopping dockets at Target Town 1 10 April 2011 and Kmart Town 1 13 February 2011 to demonstrate this. The father said however that whilst on some days he has taken S to Town 1 it is very rare that he has “doubled back” the distance to Town 1 after collecting S from Town 2, and that more often than not he has spent the time with S at Town 10, or Town 11, near Town 2, with his sister Ms X and her husband Mr X, who live there with their 2 sons aged 15 and 13, such that if changeover is at Town 1 rather than Town 2, he would have limited opportunity to take S to visit them.

8. Initially, when considering the driving “burden”, both in terms of time and petrol cost, and that generally it is considered to be fair and reasonable that the burden should be shared between parents as evenly as might be achievable, I inclined towards Town 2 as the more appropriate changeover venue, as being a shorter driving distance and less cost for the father than having to travel the additional distance (return) between Town 2 and Town 1. However, for the mother, Town 3 to Town 2 is a 1 hour drive, so that 2 round trips for her, as explained, would require the better part of about 4 hours (2 hours in the morning and 2 hours in the afternoon), whereas if the changeover be at Town 1, the mother’s driving time would be 30 minutes round trip in the mornings and 30 minutes round trip in the afternoons, 1 hour all up not 4 hours all up.

9. However, this analysis focuses only on travel time, convenience and cost, insofar as that impacts on the mother and the father. The issue, when considered from their perspective alone, is difficult to resolve.

10. Mr Ashcroft however, for the independent children’s lawyer, in submissions, drew sharp focus to the circumstance that it is the travel time for S which needs to be considered, and that her best interests would be met by minimising travel time for her.

11. Mr Ashcroft submitted thus that, because Town 1 is closer to where S lives, at Town 3, there should be focus on her travelling time, not the father’s travelling time, nor the mother’s travelling time, and that even Town 1 changeover requires travel time for S from Town 3 to Town 1 before 9.00am, and from Town 1 back to Town 3 after 4.30pm, such that it is in S’s best interests that the changeover venue be Town 1, so that she be saved, on each alternate Saturday, about 1½  hours additional driving time.

12. I accept that submission.

13. There was another matter canvassed, as between V Contact Centre at Town 1, and V Contact Centre at Town 2, as the desirable changeover point. Whilst both are owned by Company V and, it would appear, both thus have the same or similar safety policies, the mother said that she “felt safer” at Town 1 rather than Town 2 because of the “roadway layout” and the “entrance/exit doorway configurations” pertaining to each such that, objectively, there was “less chance” of she and the father coming into contact with each other at Town 1 than at Town 2. The mother relied on exhibit 12, a sketch by her, and oral evidence, as to the matters depicted in the sketch. The father disputed the layouts contended by the mother, and disputed that the parties would be any more likely to come into contact with each other at V Contact Centre at Town 2 rather than V Contact Centre at Town 1.

14. Ms McDiarmid referred to the Company V record sheets: exhibits 1, 2 and 5, as showing more “incidents” at V Contact Centre at Town 2 than V Contact Centre at Town 1. These however may have had other explanations.

15. The evidence as to “layout” was incapable of resolution at the trial, because it was raised late, such that no oral evidence was available by a representative from Company V. Indeed Counsel, together, contacted Company V by telephone and were met with the response that no evidence could be given even by telephone absent a subpoena.

16. Thus, I am unable to determine this aspect of the parties’ dispute as to whether objectively the layout at one centre or the other would have the effect of less likelihood of the parties coming into contact with each other at changeover.

17. The mother gave evidence that she “feels” safer using V Contact Centre at Town 1. In order to give this aspect of the matter any weight, however, I would need to determine whether there is any objective basis for her feeling safer at V Contact Centre at Town 1 rather than V Contact Centre at Town 2.

18. I therefore disregard the “safety” dispute which entailed because on the evidence it is not capable of objective resolution.

19. I will order that changeover occur at V Contact Centre at Town 1 on the basis of Mr Ashcroft’s submission that such is in S’s best interests, when focus is put on travelling time for her, rather than for the mother or the father.

20. I will add however that even for changeover at V Contact Centre at Town 1, it is not as if there is no driving time or cost for the mother, as explained, so that, at least to some extent, the burden is shared by the parties both in cost and time.

Should the order be limited to alternate Saturday time or include increased time if the father should relocate - Phases 1-4 as sought by the father

1. Mr Ashcroft submitted that the father’s evidence that he has decided to and proposes to relocate to the Town 3/Sunshine Coast area by 31 October this year, rent a two bedroom unit and obtain employment there is “pure speculation” at this time.

2. Although the father submitted curriculum vitae to Company 4, and to Company 3, and he proposes to investigate also a transfer with Company 1 to the Sunshine Coast, and even if it be considered that the father relatively easily could obtain employment in the Sunshine Coast area, the father said in cross examination that he has made no inquiries about accommodation availability or cost. Thus, it is not even known as yet whether the father will be able to afford suitable accommodation in the Town 3/Sunshine Coast area.

3. The father said however to the effect that he needed first to secure employment in the Sunshine Coast area, and then look for accommodation. There is in my view both merit and logic in this approach.

4. There is no reason to doubt the father’s sincerity in his present proposal.

5. It remains to be seen however whether he acts upon his stated intentions.

6. The father has lived in the Gold Coast area now for about 20 years, has secure employment there and an established peer group there.

7. At one stage in his evidence, the father said that if he did not achieve the orders in his proposal, he would not relocate to the Sunshine Coast area, as there would be no point in moving to Town 3. He quickly retracted this, however, when it was put to him that there are no aspects of his proposal which would prevent him from moving, if he wishes to.

8. Mr Ashcroft submitted that the Court is faced with a “similar” position as it was in the 2009 trial before Spelleken FM, in which her Honour made interim orders only, although after a trial.

9. In her reasons for judgment 21 December 2009, her Honour said: 36 and 43:

   36.The father did not oppose those orders and asked for orders that would provide him with equal time and if the Court made that order he would be prepared to facilitate equal time to move to the Sunshine Coast from the Gold Coast where he tells the Court he currently lives.

   …

   43.He indicated, as mentioned earlier, that if the Court was prepared to make an order for equal time he would move to a place closer to the mother to allow that time to be facilitated.

10. Mr Ashcroft submitted that the father needs to “put his house in order”, and that, put simply, the Court is not in the position to consider the father’s Phase 1-4 proposal until and if he has relocated to the Sunshine Coast area, and demonstrated, at least for some period, perhaps even a few months, stable accommodation and employment there.

11. Mr Ashcroft pointed to the long history of conflict between the father and the mother and submitted that even since the 2009 trial before Spelleken FM, there has been no improvement in the management of the parties’ conflict, despite the father’s assertion in evidence that “There is no conflict between the mother and me”, and “I don’t think conflict is an issue anymore”, although, earlier in his evidence he said “I haven’t spoken to the mother for five years”, indicating little insight by the father as to the undercurrent of ongoing conflict.

12. Ms McDiarmid submitted that the longitudinal history of the parties’ conflict, and the safety concerns addressed, in particular Ms B’s evidence as to potential or actual psychological harm to S, have effect that the father’s proposal should be rejected as being in S’s best interests in that “Whether or not the father moves to [Town 3], he poses the same risk to S at the Gold Coast or at [Town 3]”.

13. Ms McDiarmid pointed to the circumstance that because the father’s amended initiating application, seeking the orders in Phases 1-4, was filed only on 10 August 2011, on the first day of the trial, there is no expert evidence as to the likely effect on S of the change represented by the father’s proposal, in particular, progression to overnight time and extended time amounting to 4 nights per week.

14. Ms McDiarmid pointed to the circumstance that it is common ground that there is no such expert evidence, and said that in effect the current trial is “history repeating itself” in relation to the issues at the 2009 trial.

15. Ms McDiarmid submitted, in effect, that there is no evidentiary basis to consider that the father’s proposal could be in S’s best interests.

16. Ms Farr submitted that there is no dispute that “the ball is in the father’s Court”, but that “the reality is” that after 7 years of litigation “He is still here”, wanting to make arrangements to be able to put into place the Phase 1-4 orders he seeks, which he believes would be in S’s best interests.

17. Ms Farr referred to the recommendation in Ms B’s family report, par 41(3) as follows:

    41.…

    (3)If the Court is satisfied that [the father] has provided evidence [of] stable and adequate accommodation including a separate bed and bedroom for S, then the time spent as stated above [fortnightly time] expand to include overnight Saturday through to Sunday afternoon, with changeovers to continue at a contact centre.

18. However, in her oral evidence Ms B made clear that her intention in par 41(3) was that if the father had moved, not prospectively might move, and that par 41(3) was to be understood in that context: T11/14-42.

19. It was common ground amongst Counsel that this trial, being the second trial in the current proceedings, should result in a final order.

Conclusion on this issue

1. In my view, S’s best interests will be met by making only the order for alternate Saturday time, with no orders dependent on the father’s prospective relocation to the Town 3/Sunshine Coast area, and that this be a final order.

2. In so concluding, I accept Mr Ashcroft’s submission that, despite the father’s stated intention presently to relocate to the Town 3/Sunshine Coast area, such at this stage is speculation, at least from the Court’s perspective, in the sense that until and if this occurs, the Court cannot assess the father’s circumstances in that setting, nor S’s best interests in that setting; and nor can the Court assess the effect of change on S, in relation to the father’s prospective proposal, until he has relocated, and there be expert evidence in that context.

3. Further, even assuming sincerity in the father’s stated intention to relocate, it was not raised formally until the first day of the trial, 10 August 2011. There is the legal hurdle, identified by Ms McDiarmid, and Mr Ashcroft, that presently there is no evidence as to the likely effect on S of the change to her parenting arrangements represented by the father’s proposal.

4. Further, to the extent that Ms Farr relied upon Ms B’s recommendation in par 41(3) of the family report, Ms B made clear that she intended such to be premised upon proof, at the time of the trial, of “stable and adequate accommodation” mentioned in her report.

5. I appreciate that the final order may be one likely to lead to further proceedings. However, if the father should relocate, and show a period of stability in the relocation, and suitable accommodation for S to spend overnight time, then, as I said during argument, such in my view would be a significant change in circumstances so as to trigger new proceedings in which the father again would be able to propose Phases 1-4, or similar.

6. However, if and until the father in fact relocates, there cannot be proper assessment by a family consultant of the father’s proposal, in a real, rather than hypothetical, context.

Conclusion overall as to the child’s best interests and other matters

1. I am satisfied that S’s best interests will be met by a final order for her to spend time with the father on alternate Saturdays between 9.00am and 4.30pm with changeover at V Contact Centre at Town 1.

2. I am satisfied that the father’s Phase 1-4 proposal, if he should relocate to the Town 3/Sunshine Coast area, should be assessed then, and cannot hypothetically be assessed now. In particular, there is no expert evidence of the effect on S of such a proposal. I therefore reject the father’s case that his Phase 1-4 proposal should be ordered now, as is in S’s best interests, to cater for his proposed future relocation.

3. The father’s proposal includes that there be orders that he attend on a Dr W, to arrange a mental health plan to attend psychological counselling, and that he undertake the recommended counselling, and that he arrange attendance at Counselling Service 1 at the next available intake for a Parenting Orders Program.

4. However, as I made clear during argument, the father is at liberty to arrange such without Court order, and that in any event arguably such would be inappropriate unless in the context of a specific parenting order.

5. I will order telephone communication, as agreed between the parties during argument, on Wednesdays between 6.30pm-7.00pm, making clear that such is not to be necessarily half hour duration but that the call be initiated during that time, as close to 6.30pm as possible.

6. I will add that, having regard to S’s age, the mother remind S to make the call and, as canvassed during argument, afford privacy for the calls. As I said during argument however, this does not mean that the mother cannot be in the same room or vicinity, but must not “listen in” or intrude.

7. I will not order any “special day” time. This was neither proposed, nor argued. Further, the different locations of the parties’ residences at this stage would tend to preclude specific order for such. If the father should relocate to the Town 3/ Sunshine Coast area, and there be new proceedings, such can be considered then.

8. The mother did not resist that S’s school reports, photographs and the like be provided by the school to the father. The independent children’s lawyer supported this. I will include this in the orders.

9. Ms B cautioned against the father’s attendance at S’s school, having regard to the high conflict between the parties in the past, on the basis that any conflict at the school between the parties would be likely to embarrass S. At this stage, having regard to Ms B’s evidence, I will not order that the father be able to attend school events.

10. In any new fresh proceedings, this matter can be reconsidered in light of the evidence as it may then be.

11. I will include an order that the parties notify each other if S should suffer any serious accident or injury.

12. The mother, the father and the independent children’s lawyer invited a non-denigration clause, which I will make.

13. I will include an order also that the father not question the child about the mother or make adverse remarks about the mother, these orders, or any court proceedings, having regard to Ms B’s evidence that such is detrimental for S.

14. I will make an order for exchange of the parties’ telephone numbers, in S’s best interests, to allow communication should there be any serious accident or injury concerning her. However such should not be used otherwise than in relation to any emergency concerning her.

Rice v Asplund

1. I observe, as I did during argument, that if and when the father should relocate to the Town 3/Sunshine Coast area, and he be able to demonstrate stability there, in relation to both accommodation and employment, such in my view would be a significant change in circumstances, to trigger fresh proceedings.

2. This is a matter, however, for the future not now.

Final order

1. All parties agreed that it is in S’s best interests that a final order be made now concerning parental responsibility, her living arrangements, and the time she should spend with the father, in particular as there have been two trials in the current proceedings, which need to be finalised.

2. Accordingly, the orders I will make will be final orders.

3. Otherwise, I will order that all other applications be dismissed and the independent children’s lawyer discharged.

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 21 June 2011.

Associate:     

Date:              16 September 2011