Ibanez and Miner
[2013] FMCAfam 75
•6 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IBANEZ & MINER | [2013] FMCAfam 75 |
| FAMILY LAW – Parenting dispute – child conceived when relationship ended or ending – mother seeking to exclude father wholly from her and the child – father’s alleged controlling personality – whether child should spend overnight and/or increased time with father. |
| Family Law Act 1975, ss.60B, 60CC |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR IBANEZ |
| Respondent: | MS MINER |
| File Number: | MLC 9221 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing date: | 21 November 2012 |
| Date of Last Submission: | 21 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tesoriero |
| Solicitors for the Applicant: | Lampe Family Lawyers |
| The Respondent: | In person |
IT IS NOTED that publication of this judgment under the pseudonym Ibanez & Miner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9221 of 2010
| MR IBANEZ |
Applicant
And
| MS MINER |
Respondent
REASONS FOR JUDGMENT
Introductory
This parenting dispute is all about the best interests of [X] (“[X]”) born [in] 2010. Ostensibly the dispute is about whether there should be shared parental responsibility and at what pace and to what extent [X]’s time with her father should be gradually expanded. In fact, the real matter in dispute is the way the parties feel about each other and, in particular, the very negative views that the mother has of the father.
The Court has had the benefit of two family reports from Ms M, which make clear recommendations. For the reasons that follow, I am going to make orders substantially as recommended by Ms M.
Relevant history
Although there is a certain amount of, at times, vivid factual dispute between the parties, looked at objectively much of what occurred between the father and mother is relatively uncontroversial.
The father was born [in] 1966 and is a [occupation omitted], although he initially described himself as an [omitted]. He has two other children who are now respectively adult and in mid-teenage years. The father’s relationship with these children is uncontroversial, although I was told little about them during the proceeding.
The mother was born [in] 1978 and is presently employed part-time in Ballarat. She hopes to expand both her work and her studies (she already has [qualification omitted] in any event).
The parties met through a dating website which, as Dr D who reviewed both the father and the mother pointed out (in his report on the mother on page 5), appears to have contributed to a significant ambivalence in the ensuing relationship.
According to the father’s first affidavit filed on 1 October 2010 the relationship commenced in about August 2007 and ended in May or June 2009. The father deposed that he wanted the relationship to continue and that the mother did not.
The mother’s first affidavit describes the father as controlling and obsessive. She deposed that she sought on a number of occasions to end the relationship and gradually planned to move, as she eventually did, to the country to get away from him. She agreed that she told the father that the relationship was over at the end of May 2009.
Nonetheless, on the Queen’s Birthday long weekend the parties met and engaged in sexual intercourse. This was the time at which [X] was conceived. At paragraph 15 of her first affidavit filed on 12 November 2010 the mother deposed:
“I was under the impression and led to believe that [Mr Ibanez] was using contraception on this occasion, yet it became clear after the fact that he had not and I became extremely upset.”
Dr D observed in his report that he found it odd that the mother had not appreciated that the father was not using contraception on this occasion, and I agree.
It is quite clear from what the mother has subsequently told both Dr D and, more particularly, Ms M that she remains deeply distressed and upset by what she perceives as the father’s taking advantage of her on this occasion. She has accused the father of getting her pregnant on purpose. She has said she feels violated by this.
I repeat that I find it odd that the mother did not appreciate that the father was not using contraception, something he says he failed to do in any event throughout the entirety of the relationship. From materials appended to both the father’s and mother’s affidavits from time to time it is clear that the father wished the relationship to continue for some considerable period after it had ended and that the mother was adamant that it should not. The mother saw the father’s endeavours at reconciliation as a continuation of his controlling behaviour, whereas he saw this as simply a reasonable response to the fact that he continued to love her.
The mother prevented the father from having any time with the child and it was that position which led to the application before the Court.
The orders made from time to time and the progress of the matter to trial
In March 2011, and following the first family report from Ms M, orders were made for the father to spend time with his daughter and the matter was adjourned for further mention approximately a year later to await the march of events given [X]’s then very young age. On 17 January 2012 the father filed an application in a case relevantly seeking a further family report from Ms M. An affidavit filed in support of the application was the subject of objection and a further affidavit in much the same terms but omitting allegedly privileged material was filed by the father on 7 March 2012. That affidavit shows that time was eventually established on each alternate Sunday from 10:00am until midday with changeover at the [M] Police Station.
The mother’s response to the application was essentially concerned with the allegedly privileged material. She did, however, also depose that she had taken up employment which was due to commence on a part-time basis on 21 March 2012 with [omitted].
A further family report was prepared by Ms M dated 16 June 2012. Both Ms M’s reports were put on affidavit prior to trial.
Likewise, Dr D’s affidavit was filed on 21 November 2012. That affidavit annexes his reports in respect of the father dated 20 March 2011 and the mother dated 22 March 2011.
The parties’ concerns about each other
Given the nature of the matter, it is possible to put the parties’ positions in fairly short form. It is the mother’s position that the father has mental health problems associated with his dependent and controlling personality, together with a propensity for binge-drinking such as to make him an unsafe parent to care for [X].
The mother further opposes joint parental responsibility. She seeks that sole parental responsibility be given to her, a matter to which I shall return.
The father likewise raises the possibility of psychiatric problems on the mother’s part, denies binge-drinking and seeks that his time with [X] proceed in an orderly way.
The parties’ evidence in Court
Both parties gave evidence in accordance with their affidavits and were cross-examined.
The father presented to me as quiet and respectful, very neatly-dressed and generally self-controlled.
He confirmed under extensive cross-examination by the mother that he had included an apology for some of his past conduct in his most recent affidavit. He confirmed that he was not under psychiatric or psychological treatment or on any medication in relation to anxiety. He said that he had a lot of accrued leave in addition to his four weeks per year annual leave which would enable him to spend time with the child as he desired. He confirmed that his house was nut-free ([X] has a peanut allergy) and that if she was sick he would be happy to call the mother. He sought to share birthdays and Christmas time and he denied binge-drinking. He confirmed that he had seen a Ms A, a psychologist, only twice and in part in relation to the anxiety arising from matters associated with this proceeding.
I should say that on the whole the father was clearly a truthful witness who responded directly and uncomplicatedly to the questions put to him. I accept his denial of binge-drinking and I accept, subject to the observations of Dr D and Ms M, his remarks about his health.
When called to give evidence the mother repeated her concern about binge-drinking and repeated her concerns as to when overnight time should start, and for how long such time should be spent by [X] with her father generally.
Under cross-examination it took little time for it to emerge that the mother would really rather that there was no overnight time spent by [X] with her father at all. She confirmed she does not like the father, something which is very clear in any event. She confirmed that she does not like the current Court orders but that she has complied with them.
She confirmed her refusal to accept child support from the father, which the father has offered, essentially because she is concerned, as she put it, that he would want value for his money. This I took to be a reference to the fact that it is her view that the father has sought to assist her with child support and, indeed, in other ways solely to
re-establish his controlling and domineering behaviour over her.
She confirmed that she sought sole parental responsibility because there would be less conflict if this were the case. When asked if there was any benefit to [X] having a relationship with her father she said that this was hard to answer.
She confirmed that [X], along with her older sibling, [Y], have [omitted] lessons and other extramural activities on Saturdays.
It is sufficient to say that the mother has no insight into the difficulties she faces with her relationship with the father and she became visibly distressed when it was put to her that she might benefit from counselling in this regard. She adamantly refuses to attend any such counselling and she became sufficiently distressed as to be unable to properly articulate why.
The reports of Dr D
Dr D said under the heading “Mental State Assessment” of the father:
“Mr Ibanez presented as a friendly, anxious and passive man. He impressed as being open and genuine. His mental state was generally unremarkable. There were no overt signs of psychopathology other than an anxious disposition. He appeared to be a sensitive person who considered other’s needs. He emphasized his need to seek intimacy and a partner after his marriage ended. His dependency needs were quite prominent.”
The relevant personal psychiatric history described by Dr D is, in my view, unremarkable. I note that he has a close and perhaps, it would appear, a somewhat dependent interrelationship with his family who are of Macedonian extraction. This is relevant in the sense that it would appear Mr Ibanez found life when he first came to Australia somewhat difficult and it is, therefore, no surprise that he remained very close to his family.
I note the ambivalent nature of the relationship between Mr Ibanez and Ms Miner as reported to Dr D by the father, and Dr D's conclusion, which is relevantly on page 5 of his report, as follows:
“Whilst Mr Ibanez has mild personality psychopathology and a proneness to anxiety, but this should not necessarily preclude him from being a capable parent. In the event that his anxiety levels elevate he may benefit from reengagement with his GP. He has previously been willing to seek medical and psychological support during vulnerable times.”
It should be noted that when Dr D was called to give evidence and was cross-examined by the mother, he confirmed that the father has dependency traits, but that his personality traits are mild.
Dr D's report about the mother is worthy of note also. Under the heading “Mental State Assessment”, Dr D relevantly said:
“Ms Miner presented as an anxious woman. She engaged openly. She presented an account that lacked objectivity. She was focused on the difficulties she experienced in the relationship with Mr Ibanez. She felt overwhelmed by his 'obsessive' nature. When she discussed her concerns her mood shifted. She briefly became teary and her voice quivered. She was able to readily contain her emotions. She felt vindicated in her refusal to permit contact between [X] and Mr Ibanez. She did not seem to appreciate, nor value the importance, of a relationship between child and parent to be fostered from infancy. She lacked insight into these deficits. Her anxieties about Mr Ibanez did not appear to correlate with specific concerns. She had avoided contact with Mr Ibanez primarily because she didn’t want to give the impression that she was interested in seeking reconciliation.”
Having pointed to some of the mother's difficulties of attachment arising from her childhood, and having referred to the ambivalence of the relationship with Mr Ibanez which commenced through a dating website, Dr D's report relevantly asserts at page 5:
“Ms Miner avoided Mr Ibanez throughout the pregnancy. She appears to have entered into a defensive state of denial in order to ignore the reality that she was pregnant to Mr Ibanez. Ms Miner struggled to bond with [X]. The difficulty to bond appears to have been a direct reaction to the residual ill feelings she held for Mr Ibanez. Her difficulties do not seem to correlate with a period of postnatal depression, or other mental disorder. In this setting she refused to allow Mr Ibanez contact with [X]. Ms Miner seemed to have focused on her own needs during a very difficult period of her life. Her struggles were compounded by health issues with [X]. It was generally unclear if Ms Miner had reasonable concerns of Mr Ibanez. She highlighted a few issues, but they did not nearly reach a level that could legitimately be considered as reasons to prevent any contact. Ms Miner seemed to lack insight into the importance of the parent-child bond/relationship being fostered from infancy. This lack of insight may be tied to her own experience of poor attachment to both parents.”
Dr D continued on the last page of his report:
“Ms Miner may benefit from supportive counselling in the event that contact is permitted. Her anxiety levels can be expected to rise. Counselling may assist...”
I should make it clear that I entirely accept the force of Dr D's reports about each of the parents. He was an impressive witness giving evidence within the sphere of his professional competence, and his conclusions entirely accord with my own observation of the demeanour and submissions of the parties.
The Reports of Ms M
The first report dated 24 March 2011
The first report of Ms M sets out the parties' histories. In the circumstances, it is not necessary to traverse same in any detail. They form part of the generally relatively uncontroversial history that I have already referred to.
Amongst matters I would note:
a)the father's offer to pay child support and the mother's refusal of it;
b)the mother's assertion (in paragraph 36) that the father deliberately set out to make her pregnant; 'He did it on purpose';
c)the mother's acknowledgment that in response to Mr Ibanez seeking to spend time with [X], she told him 'over my dead body' (paragraph 39), albeit that this was a time when she was stressed and desperate to try to get away from Mr Ibanez. I note that Ms Miner added, 'I got sick of hearing I still love you,' something that, in my view, accurately characterises some of the correspondence sent to her from time to time by the father; and
d)The mother was 'unable to reflect on or to consider the possible benefits for [X]’ in respect of the father's involvement in her life (paragraph 44).
At paragraph 54, in the evaluation part of the report, Ms M concluded:
“… In discussion over his relationships with women, Mr Ibanez does not accept that he has difficulty in living independently but is seeking a committed relationship. He does not present as having developed mature insight in respect to his emotional needs and expectations and how these may impact upon his romantic relationships. However this writer made no observations of significant psychological concern, in respect to Mr Ibanez's alleged obsessive and controlling characteristics which may pose an emotional risk to a young child.”
Having referred to gifts given to the mother by Mr Ibanez, Ms M continued at paragraph 55:
“… This could be considered a milder form of harassment but in this writer's view, it is not inconsistent with the emotional upheavals experienced as a desired romantic relationship comes to an end. Subsequent to Ms Miner's clear rejection, it would appear that Mr Ibanez accepted this and made no further contact until after [X]'s birth.”
In respect of the mother, Ms M said at paragraph 60:
“Ms Miner presented her perspective of past events in a more defended and intense way. At times her account was fragmented, with spontaneous distractions directing blame to Mr Ibanez. Ms Miner was not observed to be reflective in respect to any personal impact on the progress of their relationship. Ms Miner refers to a troubled childhood with a traumatic event occurring during her teenage years. Ms Miner appears to have been deprived of a close emotional attachment with either parent. This is likely to have had implications for her later emotional development, sense of trust and safety in adult relationships.”
At paragraphs 63-65, Ms M continued:
“63. Ms Miner has not obtained therapeutic counselling and is of the firm view that she has resolved painful issues in her own way, also with the support of friends. This is a well-defended position which Ms Miner needs to reconsider. It is in [X]'s best interests that the current dispute over whether [X] be given opportunity to develop a meaningful relationship with her father, is not distracted or distorted by Ms Miner's difficult childhood experience or by her negative relationship with Mr Ibanez.
64. Ms Miner has moved to live in the country. By not informing Mr Ibanez of [X]'s birth or permitting him to see her, she gives every indication that she sought to raise [X] on her own, without financial or other assistance from Mr Ibanez. Ms Miner has not named Mr Ibanez on [X]’s Birth Certificate. Mr Ibanez expressed some concerns over paternity. It may be in [X]'s best interests that a paternity test be done.
65. In discussion over [X]'s needs and developing a relationship with her father, Ms Miner conveys that she has little knowledge or understanding of the potential value to [X]. She does not appear to have considered the emotional implications for [X], if she is denied a relationship with her father. Ms Miner conveyed no concern that [X] has not had opportunity to form an attachment to her father during her first twelve months of development. She is skeptical as to whether an emotional attachment can develop on a fortnightly basis but is unwilling for this to occur more often.” (sic)
At paragraph 67, Ms M continued:
“This writer has read the two Reports of Dr D. Dr D has not found reason to indicate that Mr Ibanez may pose a psychological or other risk to [X]. In general his assessment of Mr Ibanez concurs with that of this writer. Mr Ibanez does not appear to have raised the issue of paternity with Dr D. In respect of Ms Miner, Dr D noted that Ms Miner lacked insight into the 'importance of the parent-child bond/relationship being fostered from infancy'. In general, Dr D's assessment concurs with that of this writer. …”
Ms M went on to say at paragraph 68:
“… It is essential that [X] be given opportunity to develop a relationship with her other significant parent, in her second critical year of development.”
Ms M went on to recommend fortnightly time under the guidance of Ballarat children's contact centres, and noted that it might take 12 months for [X] to feel comfortable with her father in the alternate setting.
The second report dated 16 June 2012
Ms M's report reviewed the position between her first and second reports in terms that are unremarkable and require no further comment. I note that after six months:
“Ms Miner gave her agreement to [X] spending unsupervised time with Mr Ibanez. She states that she no longer feels scared of him. She had understood that the agreement for two hours time spent in [M] would be a long term arrangement and feels she was pressured into agreeing to more time and in future “will not put up with being bullied;” (paragraph 35).”
It is noteworthy, however, that the mother repeated her criticisms of the father including her assertions of being impregnated against her will (see paragraphs 44-46). At paragraphs 65 and 66, Ms M wrote:
“65. Ms Miner made a significant effort to attend the assessment in Melbourne with [X], despite her son [Y] being unwell. She made a considerable attempt to provide a more moderate account of recent progress. However towards the end of the session, often regarded as a critical point in any interview, Ms Miner’s mood notably changed as she expressed her unrelenting dislike of Mr Ibanez. Ms Miner refers to feeling emotionally and physically comprised in his close proximity although she has managed to no longer feel scared of him. Ms Miner stated that an apology from Mr Ibanez may help the situation. This writer is aware that Mr Ibanez wrote out a letter of apology but due to various considerations, this was not given to Ms Miner.
66. Ms Miner maintains that she sees no advantage for [X] in having a relationship with Mr Ibanez and expressed her concerns that [X] will be made subject to Mr Ibanez’s indulgences and possessive behaviour. However she has complied with taking [X] to the Ballarat Children’s Contact Service and has facilitated unsupervised time in [M].”
I note that at paragraphs 74-75, Ms M wrote:
“74. This writer understands that Ms Miner is opposed to any major increases in time spent and to overnight stays. However there is need for parenting arrangements to be put in place, on the understanding they may need to be modified or delayed, if [X] is not coping.
75. There appear to be no substantive reasons presented during this assessment to indicate that the parents should not share equal parental responsibility.”
It should be noted that Ms M, under cross-examination, made it clear that the qualification in paragraph 74 should be approached with caution and not taken advantage of. Ms M was clear that definite and clear orders should be made and complied with.
Ms M went on to make a recommendation for a gradual increase of the time as [X] gets older.
As with Dr D, Ms M’s evidence was given with assurance and in her area of professional expertise. I fully accept the force of her evidence.
The statutory pathway
In Goode v Goode [2006] FamCA 1346, the Full Court set out at [65] a summary of the legislative pathway.
I refer to the entirety of the matters set out at subparagraphs 1 to 10 of [65] but do not propose to set them out seriatim. That is because the issues in this case are refined to a very particular series of points.
The first question for the Court to consider is the question of equal shared parental responsibility, and whether or not the presumption triggered by a parenting order that it is in the best interests of the child for there to be equal shared parental responsibility applies, and whether that presumption may be rebutted as conflicting with the best interests of the child.
Here the father seeks equal shared parental responsibility. He is clear that he desires to be involved in [X]’s upbringing. I have already quoted the passage from Ms M which indicates that there is nothing which would render an order for equal shared parental responsibility inappropriate.
The father’s submissions pointed to Ms M’s recommendation in each of her reports for equal shared parental responsibility and while noting that the mother seeks sole parental responsibility, counsel submitted that there was nothing alleged that would rebut the presumption.
It is perhaps instructive to look at the mother’s oral submissions about this issue. The mother said that she wanted sole parental responsibility because of the father’s behaviour during her pregnancy. She said that a greater dialogue between the parties would be promoted if she had sole parental responsibility. She referred to her negative views about the father and emphasised that there would be less conflict if she had sole parental responsibility. As I indicated earlier, it is clear that in the event that she receives an order for sole parental responsibility, the mother will inform the father as to outcomes but will not involve him in any way in any decision-making concerning [X].
The evidence of Ms M is clear. It seems clear to me also that the mother’s real opposition to shared parental responsibility springs from the same source as her opposition to the father spending more accelerated and greater amounts of time with the child, namely her ongoing and very considerable personal hostility to the father.
The matter can be put shortly. The presumption is not rebutted by the matters that the mother raises and accordingly the statutory presumption must be applied.
Equal time and substantial and significant time
In the circumstances of this case these matters, which are required to be considered, simply do not require significant attention. No-one is suggesting either equal time or substantial and significant time at this stage. Given the distance between the father and the mother’s dwellings and given further [X]’s very young age, this is an entirely appropriate outcome.
The outcome that promotes the child’s best interests
As pointed out by the Full Court in subparagraphs 8 to 9 of [65]:
“Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.”
I note that at 65.11 the Full Court observed that:
“The child’s best interests remain the overriding consideration.”
Section 60B
Here it is clear that the Court should give effect to the object in s.60B(1) of the Family Law Act 1975 (“the Act”) that [X] have the benefit of both of her parents having a meaningful involvement in her life to the maximum extent consistent with her best interests. So much has been recommended by Ms M, and as I have already asserted above, it is clearly the outcome that should obtain.
There is nothing in the materials which objectively suggests that it is necessary to protect [X] from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence (s.60B(1)(b)).
The objects set out in s.60B(1)(c) and (d) are also clearly relevant, but it is not necessary to deal with them further in circumstances where the matters to which they give rise will be comprehended in the matters dealt with under s.60CC.
It should be noted, however, that the issue of counselling for the mother is one that may be thought fairly to arise under s.60B(1)(d).
Section 60CC
The primary considerations raised in s.60CC(2) are, in my view, for these purposes, already dealt with relevantly under matters set out under s.60B above and it is not necessary to repeat them. It is clearly to [X]’s benefit to have a meaningful relationship with both parents and there is no need to protect her from the risk of physical or psychological harm.
I therefore turn to the additional considerations.
Section 60CC(3)(a)
In view of her young age, [X] has expressed no views about her parenting, although I note that it is clear that she has a good and developed relationship with her father and a close and attached relationship with her mother who has been her primary carer.
Section 60CC(3)(b)
[X] has a secure and primary attachment to her mother and a “well-established relationship with her father” (paragraph 60 of the second report of Ms M).
There is no significant amount of evidence about [X]’s other relationships, but there seems no reason to doubt that she has an adequate relationship with [Y] and that she would appear to have met her stepsiblings, with her father, on several occasions without difficulty.
Section 60CC(3)(c)
It is clear that the father has sought to participate in making decisions about the long-term future of the child and to spend time with and communicate with the child. His dogged pursuit of his case before the Court is clear evidence of this, and I see no reason to doubt his expressed desires to participate in an appropriate way in [X]’s life. The mother has quite clearly been a good mother, as even Mr Ibanez generally acknowledges.
Section 60CC(3)(ca)
The mother has in one sense fulfilled very well her role as a parent. Everyone agrees that she is a good carer for the child. The father has done his best in the circumstances that have been available to him. The area in which the mother has failed properly to exercise her functions as a parent is the way in which she has failed to promote the relationship with the father. This is an obligation which, as both Dr D and Ms M pointed out, simply passes her by because of her dislike of the father.
Section 60CC(3)(d)
Relevantly for these purposes it is clear that any excessive absence from her mother is likely to be distressing to a child of [X]’s age. It is a matter of refining the orders that will promote the relationship with the father in an ongoing and developmental way with [X]’s capacity to tolerate such developments.
Section 60CC(3)(e)
There are considerable practical difficulties associated with [X] spending time with her father, which mainly arise out of the distance between where she lives, near [M], and where he lives in Melbourne. There are also expense issues associated with this, but these issues would be overcome if the mother were able to reconcile herself to accepting the child support that the father offers.
Section 60CC(3)(f)
I have no doubt that both parents are capable of providing for [X]’s needs, including her emotional and intellectual needs.
Subsection 60CC(3)(g)
There is no more to be said about [X] under this subsection. Each of the parents has their weaknesses and susceptibilities. These have been dealt with earlier in the reports from Dr D and Ms M and it is not necessary to repeat them here. It should be emphasised, however, that whatever difficulties either parent may have, they do not inhibit them in being appropriate carers for [X].
Subsection 60CC(3)(h)
Irrelevant.
Subsection 60(3)(i)
I have already dealt with the attitudes of the parents to the child and to the responsibilities of parenthood above.
Subsection 60CC(3)(j) and (k)
Irrelevant.
Subsection 60CC(3)(l)
I propose to make orders which, so far as is humanly practicable, define in a precise way the future until at least [X] is at school.
Subsection 60CC(3)(m)
There are no other matters which in my view are relevant.
Conclusion
Consideration of the matters set out above in relation to s.60B and s.60CC of the Act only goes to reinforce my view that [X]’s best interests will be met by:
a)an order for joint parental responsibility; and
b)[X] living with her mother and spending time and communicating with her father on a gradually increasing basis.
I note that the recommendations made by Ms M at paragraphs 76-79 of her report have been overtaken in part by events, namely the orders made on 21 June 2012.
Relevantly for these purposes, Ms M recommended that “from March 2013 or thereabouts when [X] is three years old, she commences one overnight stay at Mr Ibanez’s home from 12 midday Saturday to 12 midday Sunday on alternate weeks increasing over time to Sunday 4:00 pm.
In evidence given before the Court, Ms M suggested that from the age of four, a period of two nights would be possible and that holiday time should be commenced at three nights moving to five nights in the next holiday time.
I further note that Ms M recommended a prohibition on mutual denigration between the parties which is an order I think should be made in these circumstances.
Given, on one view, the relative lack of specificity of Ms M’s recommendations, I am minded to move to overnight time when [X] turns three, such time to commence in March 2013, and to two nights per fortnight when she turns four, such time commencing in March 2014.
The timing of the introduction of holiday time as recommended by
Ms M is a matter that will require further consideration.
I remain very concerned as to the mother’s presentation when the issue of counselling was pressed in cross-examination. In the ultimate, if she has a hysterical refusal to undertake it, which I suspect may be the case, then I do not regard it as in the child’s best interests to expose the mother to this degree of distress, albeit that it would be of considerable benefit to her.
I will give the parties an opportunity to consider these Reasons for Judgment before making final orders.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate:
Date: 6 February 2013
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