JACE & WESTPHALIA

FAMILY COURT OF AUSTRALIA

JACE & WESTPHALIA

[2012] FamCA 819

FAMILY LAW – CHILDREN - Best interests of child – Child spending time with the father – Where child lives with mother – Where there are competing plans to increase time the child is to spend time with father – Where there is the possibility that the mother is attempting to alienate the child from the father – Where the mother has made unfounded allegations of sexual abuse by the father toward the child – Where there is a history of high conflict between the parents.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Jace

RESPONDENT:

Ms Westphalia

FILE NUMBER:

SYC

5998

2009

DATE DELIVERED:

21 September 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

22-25 May, 19 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blackah

SOLICITOR FOR THE APPLICANT:

Caroline Chung & Associates

COUNSEL FOR THE RESPONDENT:

Ms Gillies

SOLICITOR FOR THE RESPONDENT:

Phoenix Legal Consultancy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitors

Orders

1. All previous orders in relation to V born … January 2008 (“the child”) are discharged.
2. Each of Mr Jace (“the father”) and Ms Westphalia (“the mother”) are to have equal shared parental responsibility for their daughter V born … January 2008.

3. The child is to live with the mother except when she is spending time with the father pursuant to these orders. The mother is permitted to have the child reside with her in Suburb R in the apartment owned by the mother.

4. The child shall spend time with the father:
a)Until the commencement of Term 1 of the 2013 School Year:
i.Each week, from 3 p.m. on Wednesday until 9 a.m. on Thursday;
ii.On alternate weekends, from 3 p.m. on Friday until 9 a.m. the following Monday;
iii.During the Christmas School holiday period in 2012, for 3 periods of 5 days, the first period to commence at 9 a.m. on 17 December and conclude at 5 p.m. on 21 December and the second period to commence at 11 a.m. 26 December until 6 p.m. 30 December 2012. The 3^rd period to be at a time nominated by the mother not later than 31 October 2012.

b)From the commencement of Term 1 of the 2013 School Year to the end of the Term 1 School Holidays in 2013 :
i.In Week 1 and each alternate week thereafter, from 3 p.m. on Wednesday until 9 a.m. on Thursday, commencing on the first Wednesday of the School term;
ii.In Week 2 and each alternate week thereafter, from 3 p.m. on Friday until 9 a.m. the following Monday, commencing on the second Friday of the School term;
iii.During the school holidays at the end of Term 1 for the first 5 days being a period of 4 consecutive nights.

c)From the commencement of Term 2 of the 2013 year to the commencement of Term 1 of the 2014 school year :
i.In Week 1 and each alternate week thereafter, from 3 p.m. on Wednesday until 9 a.m. on Thursday, commencing on the first Wednesday of the school term;
ii.In Week 2 and each alternate week thereafter, from 3 p.m. on Thursday until 9 a.m. the following Monday, commencing on the second Thursday of the school term;
iii.For half of all short term holidays, being the first half in odd-numbered years and the second half in even-numbered years;
iv.During the Christmas school holiday period commencing in 2013, for two periods of 7 days with not less than 14 days between each of those periods.

d)From the commencement of Term 1 of the 2014 school year to the commencement of Term 1 of the 2015 school year:
i.In Week 1 and each alternate week thereafter, from 3 p.m. on Wednesday until 9 a.m. on Thursday, commencing on the first Wednesday of the school term;
ii.In Week 2 and each alternate week thereafter, from 3 p.m. on Thursday until 9 a.m. the following Monday, commencing on the second Thursday of the school term;
iii.For half of all short term holidays, being the first half in odd-numbered years and the second half in even-numbered years;
iv.During the Christmas school holidays commencing in 2014 for 2 periods of 10 days.

e)From the commencement of the 2015 School Year and continuing:
i.In Week 1 and each alternate week thereafter, from 3 p.m. on Wednesday until 9 a.m. on Thursday, commencing on the first Wednesday of the school term;
ii.In Week 2 and each alternate week thereafter, from 3 p.m. on Thursday until 9 a.m. the following Monday, commencing on the second Thursday of the school term;
iii.For half of all short term holidays, being the first half in odd-numbered years and the second half in even-numbered years;
iv.For half of each Christmas School holiday period

f)For the following additional periods if the child is otherwise not with the Father during those periods:
i.On Fathers Day from 9 a.m. to 7 p.m.
ii.On the fathers birthday from 3 p.m. to 7 p.m.
iii.On the child’s birthday from 3 p.m. to 7 p.m. if the child has not stayed the night before her birthday in the father’s house.
iv.From 5 p.m. on Christmas Eve to 11 a.m. on Boxing Day in 2013 and each alternate year thereafter.
v.From 11 a.m. on Boxing Day to 5 p.m. on 27 December 2014 and each alternate year thereafter.
vi.At such other or additional times as agreed between the parents.

5. The father’s time shall be suspended as necessary in order for the child to be with the mother:
a)On Mothers Day from 9 a.m. to 7 p.m.;
b)On the mothers birthday from 3 p.m. to 7 p.m.;
c)On the child’s birthday from 3 p.m. to 7 p.m. if the child has not stayed the night before her birthday in the mother’s house;
d)From 5 p.m. on Christmas Eve to 11 a.m. on Boxing Day in 2014 and each alternate year thereafter;
e)From 11 a.m. on Boxing Day to 5 p.m. on 27 December 2013 and each alternate year thereafter.

6. Unless otherwise agreed between the parents from time to time, changeovers of the child’s care shall be:
a)On school days to and from her school or preschool;
b)On non-school days:
i.at the father’s home at the commencement of the child’s time, with the mother to deliver the child to the father’s home

ii.at the mother’s home at the conclusion of the fathers time, with the father to deliver the child to the mother’s home;

Any alteration to the arrangement for transfer of care between the parents to be by agreement, confirmed by email.
7. Neither parent shall do anything to prevent or discourage the child from having telephone communication with the other parent at any reasonable time. During school holiday times when the child is in the care of the father he is to ensure the child telephones her mother on one occasion in any 3 day period and further permit her to telephone her mother at any other time during school holidays should she request to do so. During school holiday times when the child is in the care of the mother she is to ensure the child telephones her father on one occasion in any 3 day period and further permit her to telephone her father at any other time during school holidays should she request to do so.
8. Each parent shall at all times keep the other informed of his/her:
a)residential address;
b)email address;
c)mobile telephone number;
d)the name of any doctor attending the child when the child is in that parent’s care.
e)the father shall ensure that the mother also has the current mobile telephone number for his wife Ms J.

9. In the event that the child suffers illness or injury requiring hospital admission, the parent caring for her at that time shall immediately:
a)Inform the hospital of the contact details for the other parent; and
b)Inform the other parent of the location of the hospital and the ward telephone number.

10. The parents shall each provide to the other the name and address of the medical practice in the Suburb R and Suburb M areas that each of them will be consulting in relation to the child’s medical care.

11. The parents shall at all times:

a)behave courteously and civilly towards each other;
b)refrain from speaking in a denigrating manner about each other, or members of each other’s families, in the child’s presence or within the child’s hearing or allow third parties to do so.

12.   The parents shall continue to attend Unifam for so long as that organisation recommends, and shall each discuss with Unifam whether it would assist the child were the father’s wife Ms J also to participate, and if so advised by Unifam then the father shall do all things necessary on his part to ensure the participation of Ms J.
13.   In the event of a dispute arising between the parties they are to attend upon Unifam in an endeavour to resolve the dispute before commencing any further proceeding in the court unless there is an emergency or other circumstances prevent them from doing so.
14.   The child shall continue to attend the Head Start Child Care Centre until the end of this year.

15.   The mother and father shall each provide a copy of these orders to the director of Head Start Child Care Centre and the Principal of any school at which the child is enrolled, and the father shall provide a copy of these orders to the consultant at Unifam where the parties have been attending.
16.   The parents shall each do everything necessary to enrol the child at a school in the Suburb R area to commence on the first day of the school year in 2013.
17.   The mother shall not later than 31 October 2012 advise the father of the school that she proposes the child will attend and provide the father with all relevant pre enrolment information. The mother is to ensure the school which the child is to attend is provided with the fathers contact details and that his name appears on the enrolment form.

18. Neither party shall change the child’s School enrolment without the express written consent of the other parent.

19. The father pay to Legal Aid NSW the sum of $5,987 within 90 days from the date hereof as his contribution towards the costs of the Independent Children's Lawyer. The mother pay to Legal Aid NSW the sum of $11,974 within 90 days from the date hereof as her contribution towards the costs of the Independent Children's Lawyer.

20. Each parent shall within 40 days pay to the Peter Baker Trust account for payment out to Dr L the sum of $660.

21. The Independent Children's Lawyer’s appointment is discharged.

22. In the event of the father not being able to spend his allocated time with the child for more than 2 days in any calendar month due to her ill health then the lost time is to be made up in the following two months as agreed between the parties.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:

Mr Jace

Applicant

And

Ms Westphalia

Respondent

REASONS FOR JUDGMENT

Introduction

The proceeding before the Court requires a determination of competing parenting applications. The applicant is Mr Jace (“the father”). The respondent is Ms Westphalia (“the mother”). The parents are in dispute in relation to the time their daughter V (“the child”) born in January 2008 is to spend with the father and whether the mother should be permitted to house the child in Suburb R where the mother owns an apartment. The mother and father presently live in the northern coastal suburbs of Sydney and are geographically quite proximate to each other.
At the commencement of the hearing the father had sought a residence order for the child to live with him. He did so on the basis that he was concerned the mother was causing the child to be alienated from him. On the last day of the trial he with-draw that application and sought instead that the child live with the mother and spend time with him. In so doing he adopted in part the recommendation of the single expert Dr L.
The Independent Children's Lawyer submitted orders should be made pursuant to exhibit ICL1. Those orders sought are as follows.
Minute of Orders proposed by the Independent Child’s Lawyer
23.All previous orders in relation to [the child] born on […] January 2008 (“[the child]”) are discharged.
24.The parents shall have equal shared parental responsibility for [the child].
25.[The child] shall live with the mother except when she is spending time with the father pursuant to these orders.
26.[The child] shall spend time with the father:
g)Until the commencement of Term 1 of the 2013 School Year:
(i)       each week, from 3pm on Wednesday until 9am on Thursday;
(ii) on alternate weekends, from 9am on Saturday until 9am the   following Monday;
(iii) During the Christmas School holiday period in 2012, for 3 periods of 5 days being periods of 4 consecutive nights, with no less than 14 days between each of those periods, and the mother to nominate the relevant dates not later than 31 October 2012.
h)From the commencement of Term 1 of the 2013 School Year to the end of the Term 1 School Holidays in 2013 :
(i)       In Week 1 and each alternate week thereafter, from 3pm on Wednesday until 9am on Thursday, commencing on the first Wednesday of the School term;
(ii)      In Week 2 and each alternate week thereafter, from 3pm on Friday until 9am the following Monday, commencing on the second Friday of the School term;
(iii) During the school holidays at the end of Term 1 for the first 5 days being a period of 4 consecutive nights.
i)From the commencement of Term 2 of the 2013 year to the commencement of Term 1 of the 2014 school year :
(i)       In Week 1 and each alternate week thereafter, from 3pm on Wednesday until 9am on Thursday, commencing on the first Wednesday of the school term;
(ii)      In Week 2 and each alternate week thereafter, from 3pm on Thursday until 9am the following Monday, commencing on the second Thursday of the school term;
(iii) for half of all short term holidays, being the first half in odd-numbered years and the second half in even-numbered years;
(iv) During the Christmas school holiday period commencing in 2013, for two periods of 7 days with not less than 14 days between each of those periods.
j)From the commencement of Term 1 of the 2014 school year to the commencement of Term 1 of the 2015 school year :
(i)       In Week 1 and each alternate week thereafter, from 3pm on Wednesday until 9am on Thursday, commencing on the first Wednesday of the school term;
(ii)      In Week 2 and each alternate week thereafter, from 3pm on Thursday until 9am the following Monday, commencing on the second Thursday of the school term;
(iii) for half of all short term holidays, being the first half in odd-numbered years and the second half in even-numbered years;
(iv) During the Christmas school holidays commencing in 2014 for 2 periods of 10 days.
E. From the commencement of the 2015 School Year and continuing:
(i)       In Week 1 and each alternate week thereafter, from 3pm on Wednesday until 9am on Thursday, commencing on the first Wednesday of the school term;
(ii)      In Week 2 and each alternate week thereafter, from 3pm on Thursday until 9am the following Monday, commencing on the second Thursday of the school term;
(iii) for half of all short term holidays, being the first half in odd-numbered years and the second half in even-numbered years;
( iv) For half of each Christmas School holiday period
F. For the following additional periods if [the child] is otherwise not with the Father during those periods:
( i) On Fathers Day from 9am to 7pm
(ii) O the fathers birthday from 3pm to 7pm
(iii) On [the child]’s birthday from 3pm to 7pm
(iv) From 3pm on Christmas Day to 3pm on Boxing Day in 2012 and each alternate year thereafter
(v) at such other or additional times as agreed between the parents.
27.The fathers time shall be suspended as necessary in order for [the child] to be with the mother:
( i) On Mothers Day from 9am to 7pm
(ii) On the mothers birthday from 3pm to 7pm
(iii) On [the child]’s birthday from 3pm to 7pm
(iv) From 3pm on Christmas Day to 3pm on Boxing Day in 2013 and each alternate year thereafter.
28.Unless otherwise agreed between the parents from time to time, changeovers of [the child]’s care shall be:
a.         On school days to and from her school or preschool;
b.         On non-school days:
i.at the father’s home at the commencement of [the child]’s time, with the mother to deliver [the child] to the father’s home
ii.at the mother’s home at the conclusion of the fathers time, with the father to deliver [the child] to the mother’s home;
and in the event that either parent wishes to alter these changeover arrangements for a particular day, then except in an emergency he/she shall given not less than 3 days notice to the other parent.
29.Neither parent shall do anything to prevent or discourage [the child] from having telephone communication with the other parent at any reasonable time.
30.Each parent shall at all times keep the other informed of his/her:
(a)residential address;
(b)email address;
(c)mobile telephone number;
(d)the name of any doctor attending [the child] when [the child] is in that parent’s care
and the father shall ensure that the mother also has the current mobile telephone number for [Ms J].
31.In the event that [the child] suffers illness or injury requiring hospital admission, the parent caring for her at that time shall immediately:
(a)Inform the hospital of the contact details for the other parent; and
(b)Inform the other parent of the location of the hospital and the ward telephone number.
32.The parents shall each provide to the other the name and address of the medical practice in the [Suburb R] and [Suburb M] areas that each of them will be consulting in relation to [the child]’s medical care.
33.The parents shall at all times:
(a)behave courteously and civilly towards each other;
(b)refrain from speaking in a denigrating manner about each other, or members of each other’s families, in [the child]’s presence or within [the child]’s hearing or allow third parties to do so.
34.The parents shall continue to attend Unifam for so long as that organisation recommends, and shall each discuss with Unifam whether it would assist [the child] were the father’s wife [Ms J] also to participate, and if so advised by Unifam then the father shall do all things necessary on his part to ensure the participation of [Ms J].
35.[The child] shall continue to attend the Head Start Child Care Centre until 21 December 2012.
36.The mother shall provide a copy of these orders to the director of Head Start Child Care Centre and the Principal of any school at which [the child] is enrolled, and the father shall provide a copy of these orders to the Director of Unifam.
37.The parents shall each do everything necessary to enrol [the child] at a school in the [Suburb R] area to commence on the first day of the school year in 2013.
38.The mother shall not later than 31 October 2012 advise the father of the school that she proposes that the child will attend and provide the father with all relevant pre enrolment information.
39.Neither party shall change [the child]’s School enrolment without the express written consent of the other parent.
40.Each parent shall within 21 days pay to Legal Aid NSW his/her half share of the costs of the Independent Child’s Lawyer as set out in the attached invoice marked ‘A’, less any amount which he/she has already paid towards those costs.
41.Each parent shall within 21 days pay to the Peter Baker Trust account for payment out to Dr [L] one half of his fees as set out in the attached invoice marked ‘B’.
42.The Independent Child’s Lawyer is discharged.

The father provided a minute of order sought by him which was marked as exhibit F6. The mother provided a minute of order which was marked as exhibit M6. Both those minutes were provided on the last day of the trial. The father’s minute gave notice of a substantial change in the orders he was seeking. He no longer sought a residence order for [the child].
The orders sought by the mother largely mirrored those of the Independent Children's Lawyer with some slight differences. The orders sought by the father were different to the orders sought by the Independent Children's Lawyer and the mother only in the area of the amount of time the child was to spend with him and when progressive changes in those times should occur.
The parties’ submissions addressed the different positions taken by each party and the Independent Children's Lawyer and I will describe those differences as I consider those submissions.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The Father was born in 1962 and the mother was born in 1971.
The parties met in about 2003-2004. The mother lived at that time in her property in Suburb R. The father may have lived at that address for some period of time, however, the parties commenced to live on the northern beaches area of Sydney. The Father’s son from a previous relationship, Courtney, lived with the parties.
The child of the relationship, the child, was born in January 2008.
The parties ceased cohabiting in August of 2008, when the father moved into other accommodation. The child remained living with the mother in an apartment situated in the northern coastal suburbs of Sydney. There was an arrangement between the parties that the father would spend time with the child on Mondays; that the parties and the child would spend time together on Sundays; and that the father would visit the mother’s property to see the child at other times.
As at April 2009, the mother did not allow the child to spend time with the father if she (the mother) was not present. At that time, the child had commenced day care at Headstart Early Learning Centre, and the father was permitted to spend time with the child at that centre.
In May 2009, the parties signed a parenting agreement in mediation at Relationships Australia. By that agreement, the father was to spend increased time with the child unsupervised. The mother says that she was pressured into signing that agreement. The father spent some time with the child, however there was a disagreement with the mother over increasing that time to blocks of more than 3 hours.
The father commenced cohabiting with his wife, Ms J, in early 2009. The father’s son C (from another relationship) lived with them.
On 21 August 2009, there was an incident in which the police were called to the mother’s house while the father was there visiting the child. The mother says that someone from the apartment complex contacted the police. The father did not spend time with the child at the mother’s home after this incident, instead he spent time with her at the day care centre. The Department of Community Services received “Risk of Harm” reports in relation to the child on 21 and 22 August 2009.
The father commenced proceedings in this Court on 6 October 2009, seeking to spend time with the child. The mother filed a Response on 11 November 2009 which proposed the father spend less time than the father proposed, and that the father not spend time with the child at the day care centre she attended. Interim orders were made by consent on 30 November 2009. Those orders provided for the child to spend gradually increasing time with the father.
On 29 March 2010, the Department of Community Services received a Risk of Harm report in relation to the child. On the same day, the mother attended the hospital with the child in order to have the child examined in relation to redness of the vagina. The mother was advised that the child had vulvovaginitis and that it was common for children of that age to be so afflicted. On 30 March 2010, the day care centre reported possible sexual abuse concerns to the Department of Community Services. The matter was referred to JIRT. A preliminary report on 31 March 2010 dismissed the allegation, stating that there was no disclosure of sexual abuse and that there was disparity in the information given regarding the alleged disclosures by the child.
On 7 April 2010, the mother filed a Notice of Abuse and also filed an Application in a Case seeking to suspend the orders of 30 November 2009. The father filed a Response on 13 April 2010. On 13 April 2010 an Independent Children’s Lawyer was appointed. On 20 April, orders were made for the father’s time with the child to be supervised, and the matter was referred to the Magellan Registrar. An order for a Magellan Report was made on 21 April 2010. The Magellan Report, released on 27 May 2010, concluded with the notation “no intention to intervene”.
The father married Ms J in January 2011. The child did not attend the wedding. The mother did not offer to provide the child to attend the wedding, however, the father did not make a specific request for the child to attend his wedding because he said he thought it would be too difficult to obtain the mother’s agreement. The evidence does not establish the mother knew the date of the wedding before the event.
On 17 May 2011, further interim orders were entered into by consent, following an Application in a Case filed by the father. The orders allowed for the father to progressively spend more time with the child, including overnight time. The orders stated that from 21 June 2011, the child would spend alternate weekends and Tuesday nights with the father.
Each of the parties have said that on several of the handovers at the mother’s house the child has been visibly distressed or distraught prior to and during the handover. Each party described the child screaming, crying and clinging to the mother, with the father having to physically remove the child from the mother. The various accounts differ as to the cause of the child’s distress, however, it is clear that these occasions were highly traumatic for the child.
There is conflicting evidence as to the child’s participation in family events of the father’s family. I accept she has participated in family gatherings with her father.
The father’s wife travelled out of the country for six weeks between March and April 2012. The father did not inform the mother of her absence. Various members of the father’s family dropped off and collected the child at the day care centre. The “sign in” sheets of the day care centre show that the father’s wife’s name was written down as the person collecting the child during the period that Ms J was overseas.

The Issues

The issues for the parties changed, to some degree, as the hearing progressed.
On the last day of the trial (19 July 2012), each party and the Independent Children’s Lawyer provided a minute of the orders they sought. The father’s minute was marked as exhibit F6, the Mother’s minute was marked as exhibit M6 and the Independent Children's Lawyer’s minute was marked as exhibit ICL1.
The orders sought by the Independent Children's Lawyer and the mother were in many respects identical. The mother relied upon the submissions of the Independent Children's Lawyer when making her own submissions and then went further to make submissions about specific proposals.
The father’s position changed on the last day of the trial. He no longer sought a residence order for the child to live with him and spend some time with the mother. This was a departure from his amended Initiating Application filed 12 October 2011. He sought in his minute of order, exhibit F6, that the child live with the mother.
The change in the orders the father was seeking rendered considerable parts of the evidence, the parties had put before the court, to have marginal or less importance.
A comparison of the orders sought by each of the parents at the conclusion of the hearing outlined the areas of dispute as follows.

The rate/speed at which the father’s time with the child might progress;
The extent of time the child will spend with the father when the progression in time concludes;
Whether the child should attend School M next year and each year thereafter as she completes her primary education. At the heart of this issue is a realisation that it will be impracticable for the child and her mother to live in the mother’s apartment in Suburb R and have the child attend School M. To this end the father acknowledged that should the mother be permitted to live with the child at Suburb R then she should not be required to attend School M;
Specific issues as to the time the child should spend with each parent at Christmas time;
Which of the parents should be responsible for travel arrangements to effect handovers of the child;
Whether the mother is to be permitted to house the child in her unit at Suburb R;
The child’s birthday. What arrangements should be put in place to allow her to see each parent on or near her birthday;
Telephone contact for the child with each of her parents; and
Payment of the Independent Children's Lawyer’s costs.

Credit

THE FATHER

The father presented as a quiet and contained person. He had considerable difficulty remembering dates. This extended to his not being able to remember the date of his marriage to Ms J. His counsel in submissions said “The father presented as a vague, forgetful but nice man”. I think with respect that is a fair description of the father’s presentation in the witness box. I did not form the view the father was untruthful or that he was attempting to mislead the Court in any way.

MS J

Ms J presented as a warm and articulate person. She presented as interested in the wellbeing of the child. There was a freshness and naivety about her which is reserved for people who have not been worn down or disenchanted with the world as a result of acrimonious proceedings in the Family Court of Australia. She wanted all the parties to co-operate and work together in an arrangement not excessively constrained by Court orders, rather driven by what might be the best arrangement for the child’s care.

THE MOTHER

The mother presented as an honest and co-operative witness. During the course of cross-examination she was asked if she was prepared to apologise to the father for suspecting that he had sexually abused their child. She took the opportunity to do so without hesitation and she did, by her words and presentation, show a real acceptance that the apology was deserved. I found the evidence of the mother compellingly acceptable with the exception of some evidence she gave about her interaction with the staff at the Head Start Child Care Centre. I will refer to that evidence later in these reasons where it is important to do so.

Ms T

Ms T is a worker at the Headstart Early Learning Centre which the child attends. She provided an affidavit at the request of the father. She was required for cross-examination. The affidavit provided evidence which described behaviours of the mother in interactions with the witness. To the extent the affidavit sought to relay the impressions or experience of other personnel at the centre it could be given no weight.
Ms T gave oral evidence. She was cross-examined by the mother’s counsel. There was nothing in the content or manner of her oral evidence which suggested she had become partisan in the case. It was clear that she felt far more comfortable interacting with the father than she did with the mother however, I do not consider she had lost her objectivity in viewing her interaction with the mother.

Evidence

The father relied on the following documents:
a)Affidavit of the father sworn 14 April 2012 and filed 16 April 2012;
b)Affidavit of Ms J sworn 20 April 2012 (signed 5 May 2012) and file 9 May 2012;
c)Affidavit Ms F sworn 18 April 2012 and filed 27 April 2012;
d)Affidavit Ms T sworn 10 May 2012 and filed 11 May 2012.
The Father set out his evidence in an affidavit he swore on 14 April 2012. The following facts I note as particularly relevant to the determination now required in this case.
The father lives at Property C, which is a property owned by his wife. He proposes that when the child spends time with him, she will reside in that property. I am satisfied on the evidence that the accommodation is adequate for the child’s physical needs.
The father proposes that he will be the principal supervisor for the child while she is in his care. He will be assisted by his wife Ms J. The father works full time and he commences work between 6.00 a.m. and 7.00 p.m. and finishes between 4.00 p.m. and 8.00 p.m., depending on overtime availability. He also works alternate Saturdays on the days when the child is not in his care. The father is establishing a consultancy business which will provide occupational health and safety advice to the specific farming industry. He considers this will enable him to work less hours and also enable him to work primarily from home.
The father’s wife works 25 hours per week. She works from home.
The father in his affidavit proposed that if the child was to reside with him he would engage Dr B at M to attend to any of the child’s medical needs. During the course of the hearing the parties were able to reach agreement about a medical practitioner for the child to attend upon, at least in relation to her continued course of immunisation treatment.
In his affidavit the father expressed a concern that the mother does not support the child’s participation in important family occasions within the paternal family. He provided examples of where he says this has occurred. One of the matters raised as a concern was an arrangement the mother had put in place for her mother to travel from Canberra to Sydney every second Monday. This led to a circumstance where the father would deliver the child to her pre-school on Monday mornings and the maternal grandmother would collect her from that pre-school about half an hour after she had been delivered there by the father. There was no communication between the mother and father about the mother’s proposal for the child to be cared for by her maternal grandmother on alternate Mondays. On one occasion the father and his wife dressed the child for a “[Special Holiday]” day at the day care centre. The child was excited about participating in that activity, however shortly after she was delivered to the day care centre the maternal grandmother arrived and removed the child. This left the child disappointed and the father perplexed.
Because of difficulties with communication between the parents in the past, the father proposes that communication should occur by email.
In relation to changeovers between parents on occasions where that could not take place at the child’s day care or school, the father submitted that McDonalds at W would be the best changeover place. There was evidence of trauma being suffered by the child at changeovers between parents at the mother’s residence.
In relation to the relationship between the parents, the father advises that both parties are engaged in attending at Unifam following the recommendations of Dr L. The father states his ambition as seeking to improve the relationship with the mother. The father complains the mother is inflexible in making arrangements for the child to spend time with him.
The father relied on an affidavit sworn by Ms T on 10 May 2012. She is employed by the Headstart childcare centre, which is attended by the child. She described her interactions with the mother. She said the mother was intimidating in the way she stood very close to staff and the way she spoke to them. She said the mother had insisted on receiving all of the child’s art work. She quoted the mother as saying “I paid the fees for childcare therefore I should get everything. I will take all of the artwork and I’ll decide what artwork I don’t want and I’ll give that to [the father].” Ms T said when she spoke to the mother and reported either that the child had been naughty or distressed or emotional during the day, the mother would answer, in the presence of the child, “that’s probably because she spent the weekend with her father.”
Ms T reported that since the centre received a subpoena requiring production of documents the mother’s behaviour towards the deponent appeared different. Since that time, the mother rarely speaks with the deponent and appears to spend as little time as possible in dropping off and picking up the child from the centre. She described a different observation of the child having been brought to the childcare centre by her mother or her maternal grandmother or either the father or his wife Ms J. The contrast being that on occasions when either her father or Ms J have delivered the child to the centre, the child appears happy, bubbly and chatty.
In September 2011, Ms T organised for the child to prepare a family tree. Ms T sent an email to the father and the mother and asked for family photos to be put on the tree. Soon after the request, the father emailed family photographs, which included the child’s step siblings and half siblings. The child was able to identify each of the people in the photographs. Ms T reports that when the mother attended at the centre “she ripped the photos of [the child]’s paternal family off the tree and this made [the child] very very sad.” Because the photos had been emailed to the centre, they were able to reprint the photos and place them on a wall very high to the ceiling so that they could not be removed again.
I note that when the mother gave oral evidence, she said she had removed the photo because it was very large. Again this had nothing to do with the father as the photographs had been printed from emails provided to the centre.
Ms T describes her observations of the father interacting with the child in glowing terms. Ms T was critical of the mother’s method of dressing the child in recent times. She considered the child had not been dressed in a manner to protect her from the cold.
Ms T made observations about self-comforting behaviour on the part of the child that she had witnessed and the parents’ reaction to her reporting that behaviour to them.
The father relied on an affidavit by Ms F sworn on 18 April 2012. She had been appointed as a supervisor of the father’s time with the child pursuant to orders made on 13 April 2012. She preformed that role for a period of approximately eight months at the rate of one day each week. She described the different observation of the times when the father collected the child from the day care centre to the occasions when he collected her from the mother’s residence. Ms F provided examples of words used by the mother to the child at changeovers, such as “mummy is lonely without you, but you’ll be back soon.”, “come on, you have to go now.”, “don’t worry darling, you’ll be back with mummy soon.” When the supervisor spoke to the mother about the way in which she was talking to the child and interacting with the child at changeovers, the supervisor said that the mother no longer spoke to her.
The father relied on an affidavit by his wife, Ms J, sworn on 20 April 2012. Ms J described her interactions and routines with the child. She described her observations of the relationship between the father and the child. She identified the extended family on both her side and that of the father.
The father relied on an affidavit by himself sworn on 6 March 2012. It annexes a copy of an email dated 2 March 2012 from the mother to the father. It sets out that although the hearing was listed for May 2012, a “5 day a week permanent place at the [Childcare Centre K] (near Suburb R) had to be taken up for the child within a fortnight or it would not be available. This annexure also attaches an email from the mother to the father dated 27 February 2012, notifying her intention to move back to her unit in Suburb R.

The mother relied on the following documents:
a)Affidavit of the mother sworn 29 April 2012 and filed 30 April 2012;
b)Affidavit Ms P sworn 27 April 2012 and filed 30 April 2012;
c)Affidavit of Ms G sworn 29 April 2012 and filed 30 April 2012.
The mother relied on an affidavit of her own sworn on 30 April 2012. The mother proposed to house the child in her unit at Suburb R which she says is larger than the accommodation they were occupying at the time of the hearing. She proposes that the child attend a public primary school near her residence at Suburb R.
The mother proposes that the child would remain in day care for the remainder of this year. Two days each fortnight (Monday and Tuesday) the mother’s mother travels from Canberra to spend time with the child. The mother is hoping to be able to work part-time in order to be able to supervise the child after school each day. If she is unable to do this, she proposes to employ a nanny to assist her before and after school. Alternatively, she will use before and after school care.
The mother proposes that should the child require medical attention at any time, the other parent should be notified expeditiously.
The mother says that although she held fears for the capacity of the father to care for the child in the past, she no longer holds those fears. The mother says that she holds the belief that the father has little regard for the relationship between the child and the mother. She accuses the father of being openly hostile to her in the presence of the child. She accuses the father of being unfriendly to her at changeovers. She says this has been much improved in recent months. She described three occasions of traumatic handovers during June and October 2011 and another one in January 2012. The mother in her affidavit answered many of criticisms levelled at her by the father in his affidavit.
So far as communication is concerned, the mother supports the proposal of email being the most effective way of communicating between the parties at this time. The mother expresses a desire the communication and relationship between the parents improves.
The mother supports the proposal for changeovers to occur at the child’s day care or school. The mother volunteers to collect the child on Sunday from the father’s residence, should that be necessary.
So far as future improved communication with the father is concerned, the mother confirmed enrolment in the “keeping in contact” program with Unifam.
The mother asserts that she does have the capacity to be flexible in arranging time for the child to spend with the father. She provided examples of where she says she has been flexible.
The mother relied upon the affidavit by her mother Ms P (sworn 27 April 2012), who resides in the ACT. Ms P describes the relationship she has observed between her daughter and granddaughter. She describes the changeovers she has observed. Some of those have been traumatic. She described how the child usually complains before the father arrives to collect her from the mother’s house, saying she does not want to go with him. Ms P attributes to the father no assistance with dealing with circumstance. She says there have been occasions where the child has returned from spending time with the father and woken in the night screaming for her mother. She asserts that the mother does encourage the child to spend time with her father. She describes unpleasant behaviour on the part of the father.
The mother relies on an affidavit of Ms G sworn 29 April 2012. She is a neighbour of the mother’s. This is an affidavit which is supportive of the mother’s relationship with the child. She describes the traumatic scenes which involve the child at changeovers when her father collects her from her mother’s residence. She describes behaviour on the part of the mother as encouraging the child to spend time with her father.
The mother relied on a number of affidavits which were read, however, the deponents were not required for cross examination. These affidavits are in the nature of testimonials by other parents who have children attending the same day care centre as the child.
Those were filed in the course of the hearing in response to the evidence put forward by the husband from Ms T. The affidavits are:
a)Affidavit of the mother sworn 20 May 2012 and filed 23 May 2012;
b)Affidavit of Ms S sworn 20 May 2012 and filed 23 May 2012;
c)Affidavit of Ms H sworn 19 May 2012 and filed 23 May 2012;
d)Affidavit of Ms O sworn 22 May 2012 and filed 23 May 2012;
e)Affidavit of Ms U filed 23 May 2012 and filed 25 May 2012;
Given the limited time available to hear the matter and the large number of affidavits relied upon, as well as the possible negative consequence flowing to the child from such evidence, the parties agreed not to cross examine a number of the witnesses, in particular, those witnesses from Head Start Day-care. The parties also agreed that neither party would raise Browne v Dunn objections as a result of this joint decision.

Oral evidence

Oral Evidence of the father.

The father was cross-examined by the Independent Children’s Lawyer. He agreed that he worked six days a week and that he worked long hours. He advised that he was taking steps to create a new business for himself which is to be a consulting business in relation to occupational health and safety in the shearing industry. Most of his work would be in the Mudgee district, however, a considerable amount of his work could be performed from home.
The father has been living at the residence of his present wife of two years. She owns that residence. For a period of about 12 months, his son from a former relationship, C, also lived with them. The father said he had three adult children.
The father said he has introduced the child to his children. One of his daughters, X, saw the child two weeks ago for a few hours. At that same time, the father’s son N was present.
The father conceded that his work hours are between 7.00 a.m. and 5.00 p.m., six days a week. If the child was in his care and he was not present then his wife, Ms J, would attend to the child’s needs.
In relation to the time that the father would personally spend with the child should she be in his care, he said he would be able to spend weekends with her and Wednesday after Day Care as he was able to leave early from his work. He is able to request time off on certain days. He conceded that on some occasions he leaves home at 5.00 a.m. to go to work. He is able to request up to two days as late start times.
The father said his wife works from their home.
The father said that changeovers for the child between him and the mother were “harrowing experiences for [the child].” He had said that he had pointed this out to the mother but claimed that she did nothing about it. He said it is an entirely different circumstance when he collects her from day care.
The father was asked about his complaint that the mother had failed to be cooperative in relation to a request of his in March 2012 to collect the child early so that he might travel to Town I. He said “Almost every request I make is refused. I can’t think of any occasion where she has agreed to any request.” When asked about his ability to communicate with the mother, he said that they are able to communicate, however, it is difficult. He said each of them have the other’s mobile telephone number and for him the best way for him to communicate is by email.
The father is still attending upon Unifam. He has attended on four sessions with Unifam so far.
The father complained that the mother made decisions unilaterally for the child. In particular, he referred to the mother’s decision to remove the child from the day care she currently attends. This related to the mother’s enrolment of the child in a pre-school near her Suburb R residence.
In relation to the future communication between the parties, the father thought that time would be a healer and the parties may be able to be more civil towards each other in the future.
The father was cross examined by the mother’s counsel. He was asked whether his wife, Ms J, had been out of Australia during this year. He replied that she had been away for about six weeks. He said that his wife Ms J had read the report of Dr. L and he had been unaware that he should not have shown it to her.
The father acknowledged that in February this year he had been told by the mother that she wished to move to her premises in Suburb R. The father was asked whether he had informed the child care centre that the mother might move. He replied that he had. The father denied the assertion that his wife, Ms J, spends more time with the child than he does. The father agreed that he had not told the mother that his wife, Ms J, was overseas for six weeks during the earlier part of this year. He said that he had informed the day care centre that there would be a change in some of the arrangements for collection or delivery of the child.
The father agreed that he claimed he had been civil in his communications with the mother but he acknowledged that there may have been some occasions where he was not. He was taken to an email sent by him on 18 April 2012. He acknowledged it was not civil, but added that he had sent an apology.
In answer to his evidence that the mother “never provided any additional time” he acknowledged that on 28 February 2012 the mother had offered him time with the child on his birthday. He acknowledged that the mother had permitted an additional night for him to spend with the child when he travelled to Town I with her. He acknowledged that in the latter part of 2011 he had spent additional time with the child which the mother had agreed to. He agreed that he had block time with the child at Christmas last year, notwithstanding there were no orders for it. He asserted that had occurred because Dr. L had recommended it. He agreed the mother had provided him with copies of photos taken at the preschool of the child. He agreed he had sent emails to the child’s preschool which had some unflattering comments about the mother in them.
The father agreed that in 2009 he went to Southern Asia for three months. During that time he did not have any contact with the child or the mother. The father was asked about his complaint that the mother had referred him or reported him to the Department of Community Services on more than six or seven occasions. He said he had seen reports of same in documents produced by the department on the subpoena. He acknowledged feeling great ill-will towards the mother for her reporting sexual abuse allegations against him. The father raised a concern that on every occasion he had access to the child over a period of a couple of months before the allegations were made the mother took a photograph of the child’s vagina.
The father said he understood the mother’s desire to move to Suburb R and he acknowledged that the property she was moving to she owned. He denied there is a benefit to the child accruing from the mother being able to live in that premises.
It was put to the father that in January this year he had yelled out to the mother from the car window. He denied that. He acknowledged he had made a comment to the mother about the Department of Community Services but he believed that the child was not present. He denied that he had failed to return messages left on his answering machine by the mother. The father acknowledged that the mother had asked him to make changes to the time he spent with the child, however he did not oblige her.
The father acknowledged that at changeovers he usually did not speak to the mother. He acknowledged that in October 2011 there was an occasion where the child was clinging to her mother and not wanting to go with the father. The father attempted to remove the child from the mother’s arms. He acknowledged another occasion in January 2011 when he had removed the child from the mother’s arms and walked towards the car with the child screaming. The father acknowledged that in March this year he had smacked the child. He said that he had told the mother about this and she had “backed him up”.
The father acknowledged that he does have a difficulty remembering specific dates.
In re-examination the father said that the travel time from his home in the northern coastal suburbs to Suburb R is approximately two hours.

Oral Evidence of Ms T.

Ms T gave evidence in affidavit form and orally. Her evidence was called by the father and was clearly put before the court because it had the potential to illustrate the mother was very difficult to deal with as a parent whose child attended the day care facility and further to illustrate some actions on the mothers part which had the ability to indicate the mother was alienating the child from the father.
Ms T said that in her verbal communication with the mother, the mother is very aggressive. Her wording is not polite. Her tone is angry. She raises her voice on occasion.
She was asked about her evidence in relation to the increase in self-soothing behaviour by the child as observed by her. She said that the child was putting her hands in her pants several times a day. She was also sucking her thumb. She had not informed either parent of the increase in the frequency with which the child was putting her hands into her pants. She said that it was really hard to speak to the mother because the mother was “running in and out the door”. She could have spoken to the father, however, she assumed that the behaviour was also occurring in each parent’s home.
Ms T confirmed her evidence that she was concerned about the type of clothing in which the mother delivered the child to the day care centre. She said that she would appear approximately 90 per cent of the time in a “light little dress”. She said there was never a sweater provided.

Oral evidence of Ms J.

Ms J was cross-examined by the Independent Children’s Lawyer. She confirmed that she takes the child to day care before 9.00 a.m. She confirmed that the child freely talks about her mother when she is with Ms. J. Ms J says that the mother did not speak to her. She has only collected the child from the mother on occasions when the father was unable to do so. There have been discussions on those occasions but they were not good. She hoped things would be better with communication in the future. She said the mother had written in the communications book that Ms J was not to contact her directly and that all communication was to be done through the father. That was written on 17 February 2010.
Ms J was asked whether she had spoken to the mother since February 2010. She said there was an occasion towards the end of 2011 when the child was talking to her at the pre-school. The mother approached and said to the child “We are going”. Ms J asked the mother whether they could wait a little while as the father was about to arrive. She said the mother then said to her in response “how dare you speak to me”.
This conversation was denied by the mother but having observed Ms J give her evidence I accept her version of what happened on that occasion. Ms J related that she and her ex-husband have a good working relationship in respect of their children. She said they have Christmas together.
Ms J was asked if she had met the mother’s mother. She replied “yes, [Ms D]. She is lovely”.
Ms J confirmed that in her opinion the changeovers for the child at the mother’s house are traumatic for the child. Ms J said that on the two occasions when she went to collect the child from the mother the mother had said to her “don’t do this to my daughter”. Ms J confirmed that she observed a good and special relationship between the child and Ms J’s father. Her father had seen the child every week for nine months during 2010. She said “we are a very close family”.
Ms J was cross-examined by the mother’s counsel. She confirmed that she was away from Australia between 4 March 2012 and 2 May 2012. The trip had been a present to her from her daughter and she was only informed of the trip 10 days before it occurred.

The mother’s oral evidence.

The mother asserted that the travel time between Suburb R and Suburb M was one hour during the week and 45 minutes on the weekend. She conceded that she had not done the trip at 7.00 a.m. on a weekday. She said she had measured the time over the Easter long-weekend.
The mother was cross-examined by the Independent Children’s Lawyer. The mother said that if she lived at Suburb R she would be closer to her family in Canberra and on the south coast of the state.
The mother claimed that communication between she and the father had improved this year, partially as a result of attending at Unifam and also as a result of information provided to the parties on the first day of the hearing. She said the parties acknowledge each other at changeovers by saying hello and observed that the child was less clingy and more willing to go with her father. The mother said that if required to do so she would deliver the child to her father. She thought the child might be less stressed in such circumstances. The mother said in her evidence that she was capable of being flexible. She acknowledged the father thought she was rigid and inflexible. She believed that she and the father would be able to converse for the purpose of properly implementing an equal shared parental responsibility order.
The mother’s work commitments are from 8.30 a.m. to 4.00 p.m. She works at Suburb Z. If she moved to Suburb R she would look for other employment in the city. She has a management role with a NSW commercial operation company.
The mother agreed that she would not remove the child from the current day care centre until the conclusion of this year.
The mother was cross-examined by the father’s counsel.
The mother was cross-examined about her attendance at the hospital on 1 April 2010. She acknowledged that she was offered social worker support but turned it down.
The mother had complained that there was no telephone time for her with the child whilst she was with the father. The father said the child does not express any wish to talk to her mother on the phone. The mother, when presented with that statement, said she did not believe it.
The mother was asked whether she still had any concerns about the father’s parenting capacity. She replied “no”. She acknowledged that she did have concerns in the past.
The mother was asked about statements she is alleged to have made to staff at the day care centre at about 7.10 a.m. on 12 April 2010. These were statements which gave rise to notice being given to the Department of Community Services.
The mother was taken to the Magellan Report which had been prepared for the case. It was asserted that the report records nine notifications to the Department about the child. The first report was on 20 August 2009.
The mother was asked why, after the investigation of the Department of Community Services and police officers had not confirmed the allegations of sexual abuse, she continued to press for the father’s time with the child to be supervised. She replied “because I wanted to ensure her safety”. She said she was concerned but did not know exactly what had happened.
The mother denied that she had taken numerous photographs of the child’s vagina and said that she had only taken one photo.
I asked the mother whether she still considered the father had the capacity to abuse the child. She replied she did not.
The mother was asked whether she would apologise to the father for the allegations that were made against him. She said “[The father], I am sincerely apologetic for the allegations which were made”.
The mother was able to identify a number of aspects of the father which were of benefit to the child. Those included “he has a good humour, he has a love for the outdoors, he is very artistic. He has high cheekbones. He has a love of fruit.” The mother acknowledged that by moving to Suburb R she would only save about $70 per week in residential cost. She agreed she had a current salary of $63,000.00 per annum and in addition to that she received rental from her unit. She also received a bonus. She agreed that in one year she received an income of $191,944.00. She said it was a year in which she was working for Business NN and she received a redundancy payment.

The mother agreed she completed, in January 2012, a waiting list form for the Childcare Centre K preschool. This is a preschool which is close to her Suburb R accommodation. She agreed that the form stated that she wished to start in March or April 2012. She agreed she had not written the father’s name on the form but claimed she did not think there was a place to write it. She agreed that on 2 March 2010 she had sent details of the Childcare Centre K to the father and told him that the child would start in a fortnight. She agreed she had not discussed any of that with him. However, she said she should have done that. The mother acknowledged that on 17 October 2010 she had written in the contact book that Ms J was not to contact her. She said she had written that because at the time there were text messages that had gone backwards and forwards and she did not want that to happen.
The mother was asked what her opinion was of Ms J. She said she did not know her. She said the child is fond of her and speaks about her unprompted.
The mother said she had had five appointments with Unifam. She said they had helped her.

Exhibits

X4 contains a table prepared by the Independent Children's Lawyer which sets out each of the party’s proposals on the issues identified in this matter. I have found this to be a very helpful document.
ICL1 contains the Independent Children's Lawyer’s proposed Minute of Order.
Exhibit F1 is a copy of a file note produced by the hospital in relation to the child’s presentation to that hospital at a time on or shortly before 1 April 2010 (the other evidence suggests the presentation date was 29 March 2010). The note discloses the mother was told the child had symptoms of vulvovaginitis, a complaint which the mother was told was common in female children of the child’s then age. The note then sets out the mother’s response to that information as being “you’re not going to help me get what I want”. This exhibit was the subject of cross-examination of the mother.
F2 contains notes titled “jottings” from Headstart Early Learning Centre. These notes relate to incidences involving nappy changing of the child at the centre. One note dated 14 October 2009 states that the mother asked a staff member “does he [the father] stand very close to you when your (sic) changing her nappy”. On being told that the father had changed the child’s nappy “[the mother] became annoyed and said that she did not want Dad to change her [the child’s] nappy”. Another note dated 7 April 2010 set out the following:
“During 11.00 am nappy change today [the child] had something stuck to her bottom. I attempted to get it twice. [The child] started to become restless & began to cross & kick her legs to block me. [Ms YH]: “You’ve got something on your bottom, I need to get it off.” [The child] (continued to kick): “stop touching me. Don’t touch me.” I stopped & told [the child] that I was getting a wipe & asked if it was okay if I wiped it. [The child] was sucking her thumb & nodded. As I went to wipe it off [the child] crossed her legs to block me! [The child] was very calm, when she asked me to stop. I thought this reaction to a nappy change unusual.”
A third note sets out comments attributed to the child by the mother, which the mother told a childcare worker on 12 April 2010, and a fourth note sets out the child’s behaviour between 23 April 2010 and 28 April 2010.
F3 contains a bundle of documents which were provided to Dr L prior to Dr L giving oral evidence.
F4 contains the Magellan Report prepared by the Family Court, which assesses there to be no risk to the child.
F5 contains a copy of the application for the child to attend Childcare Centre K in Suburb K.
F6 contains a minute of order proposed by the father.
F7 contains the Child support Assessment for the father dated 19 December 2011.
M1 contains the mother’s proposed minute of order.
M2 contains a series of emails between the mother and the father.
M3 contains a document entitled “All about me”, a document which was filled out at Headstart Early Learning Centre for the purposes of a portfolio of the child’s year. The document was filled out by the father. It contains little to no reference to the mother or her family.
M4 contains the subpoenaed documents of the Headstart Early Learning Centre.
M6 contains the mother’s proposed Minute of Order.

Report of the Single Expert

Dr L was asked to write two reports in relation to this matter. The first report is dated 20 August 2010. An update report is dated 29 November 2011. In addition to those reports, Dr L was cross-examined by the parties in the course of the hearing.
The first report set out the following.
Dr L noted that each of the parents brought very different parenting styles to their parenting of the child. These differing approaches and personalities caused Dr L concern, as the parties appeared to him to not have reached consensus as to what is and is not appropriate care in relation to the child.
He says in his report the mother is a very caring person, who sometimes feels overwhelmed by her emotions for her child. He said the mother did not agree that she is a controlling person, but noted that she would talk over Dr L in the interview in order to make her point, and that the tone of the mother’s comments in the communication book “did indicate a controlling and demanding style of communication without insight into a collaborative process”.
Dr L raised some concerns as to the level of dependency which the mother has in relation to the child. He said at paragraph 34:
It was noticeable that throughout my interview [the mother] consistently referred to [the child] in terms that you would have thought referred to a little adult rather than to a child. She talked about how well [the child] could understand what she was saying to her, and then the mother told me that [the child] was the “only person (she) had to talk too”. It appeared to me that the mother was indicating that she does have a very limited friendship and support network and her life is quite dominated by [the child] and indeed there appears to be some dependency in the relationship between the mother and [the child], at least from the mother’s perspective.
Dr L at other paragraphs refers to the relationship as “symbiotic” (paragraph 121), and states “the impression gained is that much of her time is spent in a fairly tight embrace with her daughter” (paragraph 57). He raised some concern as the mother’s ability to share the child, stating at paragraph 63 “To some extent [the mother]’ s desire to maintain her presence in [the child]’s life even when Mr J is present reveals a lack of insight into the current situation and her need to share [the child] as opposed to dominating the father’s contact with her”.
He also noted that the mother reneged on a parenting agreement reached in the course of mediation at Relationships Australia because “she feels that she was bullied … into an outcome which she saw as favouring [the father]”. That agreement was that “there would be a build up of time for [the child] to spend with the father, but this appears to be something that [the mother] continues to oppose.”
In relation to the father, Dr L said that he presents as being a very “laid back” person. He describes the father as a “laconic character who feels quite confident in his parenting skills, and who consequently tends not to overreact in relation to [the child]”.
Dr L undertook a psycho-sexual history and risk assessment with the father, as an important issue at the time of the interview was the allegation of sexual assault by the father on the child. He reported at paragraph 116 of his report:
116. In regards to [the father], the evidence to sexual abuse is quite scanty. There is no real evidence of any sexual deviation and his actual behaviours generally appear to be within the normal range. For his age he may have a high sex drive, but he doesn’t report attempting to meet his sexual needs in deviant ways. Although the allegation has been made about pornography there is no evidence that he was involved in any deviant pornography and the mother makes no allegation to that extent.
117. There is no evidence that there has been any kind of sexual crime committed against strangers or others and no evidence that there has been inappropriate behaviour with his previous children. On the strength of the current investigation other than the simple allegations made by the mother herself, there is a paucity of additional risk factors that might indicate risk of harm.
…
120. Normally in an investigation of sexual risk one would expect to find a pattern of behaviours that creates concern. In the absence of finding a pattern of behaviours it becomes a “he says, she says” kind of argument. From the moment it is hard to see what the risk of sexual harm would be and certainly if there is a risk it is a low risk, and I don’t believe in the absence of substantiation that any appreciable risk of sexual harm towards [the child] exists from the father.
Dr L was later asked to undertake an update report of the child’s circumstances. The update report was written on 29 November 2011. The following matters arise for particular note from that report.
Dr L commented on the mother’s behaviour since the first report. At Paragraph 17, Dr L highlighted the following behaviour of the mother in relation to her behaviour at the day care centre:
However, on the basis of the Head Start Day Care centre notes it appears that [the mother] continues to have difficulties in accepting [the father’s] role in [the child]’s life. For instance, [the mother] was observed by staff to remove a photo of [the child]’s extended (paternal) family from the family tree at school. Such behaviour does not suggest that she is encouraging a sense of identity with the extended family – (presumably dad’s based on the included email traffic). Mum also seems to have been concerned that the father not get any of the art/craft work of [the mother] as “she pays the fees”. It was also noted that she had scratched “ones” from the school label “[V Jace]”, obliterating [the child]’s surname. It is hard to see how such behaviours (in August 2011) reflect insight into [the child]’s need for a paternal relationship.
Dr L addressed the claim of the mother that the child did not like to spend time with the father. He assessed the interaction between the father and the child and did not find any cause for concern. At paragraph 21, Dr L noted, in relation to the mother’s claim of the child being reluctant to spend time with the father:
I don’t think that there is any real reluctance on the part of [the child] to spend time with her dad but I do think that she finds the transition between Mum and Dad at times difficult, not necessarily because of parental problems but because it is difficult for a child of her age to keep transitioning between parents. This is an issue of course that’s at the heart of both parents’ concerns.
In relation to the development of the parents’ relationship at the time of the update report, Dr L at Paragraph 43 said:
In my view neither parent at this stage is prepared to be particularly accommodating to the other. The mother argues that she has gone through a process of gaining insight and awareness, although such self-report is belied by her actions at the Day Care Centre and I believe her insight and change process is only in the most embryonic of stages. Whilst she blames the father for “impossible demands”, the father’s impossible demands i.e. that he wishes to have sole parental responsibility arise from his belief that in fact the mother has not been facilitating appropriate contact.
At paragraph 48
The difficulty for the mother remains her distrust of the father and her desire for an exclusive relationship with her daughter simply because she loves her daughter so much. I think that remains a struggle for the mother to accept the role of the father in this situation, but I also believe that it is a possibility.
On Thursday 24 May, Dr L gave oral evidence in Court in this matter.
Dr L was more optimistic in relation to the mother’s changing attitude in his oral evidence. He was questioned about his comments in paragraph 17 of his update report (which related to the mother’s behaviour at the child care centre), and said that the incidents were concerning if they indeed occurred. He said that he was not sure that all of the events alleged had happened, and had recorded what was told to him as the incidents were serious if they were true. I noted that he was somewhat careful about completely trusting that evidence.
Nevertheless, Dr L did advert to the previous situation between the mother and the child. He set out (on page 22 of the transcript) the following in relation to the child’s primary attachment:
I think that my first observations in my first report, still have some weight. I think mum did create a very exclusive bond with [the child] when she was very young and that was for all sorts of reasons. She loved [the child] to death, basically, and she created this – this really strong bond with her. That remains and if you – you break that, then [the child] is going to feel responsible for what happens to mum and if mum gets sad, mum gets lonely, mum breaks down or whatever.
At page 43 of the transcript, in relation to the “clingy” behaviour displayed by the child, Dr L described the initial relationship between the mother and the child in terms of the unequal power between the two members:
… given the unequal nature of the relationship, one is a young child and one is the mother, you could use the word “enmeshed” if you like, but I personally preferred my own one [symbiotic], because it took into account the power differential between an adult and a young child. But there was certainly an overly close relationship, at least I thought that there was an overly close relationship that was exclusive, to some extent, in my first assessment.
On page 44, he continues in relation to the effect of that relationship on the child, should such a relationship continue into the future:
Well if it [the clingy behaviour and anxiety in the relationship between the mother and the child] were to continue in the way that it was happening in my first report, then you would have anticipated that [the child] would have grown up an anxious child.
Dr L’ attention was brought to emails written by the mother to the father in relation to the child being enrolled in a child care centre in Suburb R. He was asked whether this indicated that the mother’s behaviour was controlling and was disrespectful to the father’s relationship with the child. He responded:
I don’t know about it being controlling. I say it’s disrespectful of the father’s role in making decisions about the child. I think it was – I would certainly say that that is what that shows. I don’t know about disrespectful to of the father’s relationship with the child, but clearly, it’s going to impact on the relationship with the child and so to that extent, you could say that it’s a problem. But the primary thing I took out of that was that it was a unilateral decision making process.
Dr L, on page 6, in response to a question asking what the changes were which he considered had been occurring in the mother, said:
I think that there were two, maybe three things that – that were immediately observable. The first one was that in my first report I had been particularly concerned about the social isolation of the mother and the symbiotic nature of the bond between mum and [the child]. Mum’s self report was that there had been more socialising experiences for herself. I think – and that – and that she was trying to disentangle, to some extent, the involvement that she had in her life with – with [the child] as an exclusive thing. The second thing is that [the child] had been seeing her dad and that [the child]’s response to her dad remaining quite reasonable, and under those circumstances it seemed to me that, clearly, there was something positive going in the system.
In relation to the mother’s changing attitude, Dr L comments were more positive than they had been previously. In his update report, he stated that the mother’s change was “embryonic”. In his oral evidence, however, he expanded on this further. He said:
It’s my belief that the critical issue here is – was the initial difficulties of the – that was perceived by the father in the mother wanting to have a – an exclusive relationship with her child and preventing him having any kind of relationship with [the child]. I felt that there had been change, there had been some move towards some – some more insight and more awareness, and whilst it might be, you know, two steps forward and one step backwards kind of stuff, nonetheless there was movement occurring and I felt that there was still an opportunity here to arrive at a reasonable level of contact between [the child] and her dad without having to go through a dramatic process of distressing [the child].
Dr L was taken to paragraph 17 of his second report (which set out the behaviour of the mother in the day care centre) and was asked about the behaviour of the mother at the day care centre. When asked whether that was an indication that the mother had not changed, he responded:
No. I think that change is more global. I mean, there were aspects – that particular stuff, if we credit the information from the child care centre, was concerning – and this is the reason that I put it in my report – but there were other areas that the mother was talking about that appeared to me to reflect her preparedness to take on board some issues. So as I said, I think much earlier in giving evidence today, it was a bit of a situation of two steps forward and one step backward. But I still thought that there was change occurring and for those reasons, I remain optimistic.
He stated further, on page 20 of the transcript, that he felt while the mother had made progress toward coming to a compromise, the father had retreated to a more unyielding position. He said:
I think the concern I had after the second interview was that mum had made some move into the centre, but dad appeared to have gone further out and that was a bit of a concern for me, so there dad seemed to be not recognising that in this kind of situation we really needed compromise … he saw, himself, his application as protective. I don’t think that is the issue.
Again, later in cross-examination, he was asked again about the mother’s change, and the rate at which it was occurring. He stated (at page 48):
I think that there are going to be problems. I conclude in my report by stating that I think that although it’s slow going, there are some changes that I think are meaningful. And although I am pessimistic to some extent about the rate of change, there is change occurring and to that ends, that’s why I made the recommendations that I did.
An issue identified by Dr L in his reports was that of the handover of the child between the parents and the child’s ability to transition. He elaborated his concerns in his oral evidence as follows (p 11)
If you’ve got parents who are cooperative in saying things, like, well, you know, “you’re going to see your dad now. It’s going to be a wonderful time” and then, you know, in a couple of days time, you’re going to come back and the child is reassured that everybody is in the system and everybody is, you know, caring for each other and that she doesn’t need to fear that she isn’t going to be coming back and those kinds of things, then it’s easier. But if you have a child who picks up that the hostility between the parents is – is there and if the parents are unable to reassure the child about the good time they’re going to have with the alternate parent and those kinds of things, then it can become quite problematic for the child and I suspect that’s what’s occurring in [the child]’s case. Whether it’s intentional or otherwise, I suspect that there’s a lack of reassurance from each parent about the quality of time that [the child] will spend with the other one and, also, reassurance about the fact that “then you will be coming back to mummy” or “Then you will be coming back to daddy” and that kind of stuff, so I think that it is the inadvertent – as opposed to necessarily and deliberate strategies on either parent – that is causing problems for [the child] in the transitioning process”.

It appears from Dr L’ evidence that he considers that one mid-week time overnight per week together with full alternate weekends ought to be in place for the child at this time. In relation to school holidays, Dr L told me that in her first year of school she should spend half of the shorter school holiday periods with the father. At the end of 2012, he suggested “a couple of 10 day periods in that first set of school holidays and then that could be progressed.”
Dr L was concerned about the impact on the child of moving out of the area she has lived in for a considerable time. He said that she will be starting at a new school where she will not know any of the children and the immediate surrounds will not be familiar to her.
The father directed submissions to the mother moving to Suburb R. He submitted that there was no compelling reason for the mother to relocate. She can afford to rent in the northern coastal suburbs. The rent received from Suburb R is greater than the rent she pays in the northern coastal suburbs. Both are two bedroom units. The move, it is submitted, is not driven by financial imperative. The father submitted that the move was driven by a desire to put distance between the father and the child.
The Court’s attention was taken to paragraph 48 of Exhibit X2, being the report of Dr L. It was submitted that paragraph sets out a conclusion of Dr L that the mother desires an exclusive relationship with the child. It was further submitted that although she mother said she would be moving to Suburb R with or without the child living with her predominantly, I should not accept that. If an order was made for the child to attend school in the northern coastal suburbs, then it is simply not believable that the mother would move. It was later conceded by the father that should the mother be permitted to live at Suburb R then it would be inappropriate to require the child to be enrolled at the School M.
The father submitted that he has considerable distance to make up in restoring his relationship with the mother to one of a workable parenting relationship, and also making up lost time with the child. The court was reminded that the mother had made sexual abuse allegations against the father, alleged family violence, and fraud against him. It is submitted that these allegations are of the most serious nature and have a huge emotional impact on those against whom the allegations are made. I note that the mother has completely withdrawn any suggestion of sexual abuse and has apologised to the father in the course of this hearing. The mother’s behaviour in tearing down the photograph of the father and his family on the family tree which was being created for the child at her child care centre was said to be illustrative of the mother’s inability to appreciate and support the important role of the father in the child’s life. The Court was reminded of the unilateral decision of the mother to enrol the child in the Childcare Centre K preschool. This occurred only a few weeks before the hearing.
The Court’s attention was drawn to the report of Dr L where he said that if the court thought that there was a process of undermining the relationship between the child and her father, then it should speed up the rate of increase in the time which the child is to spend with her father. At page 35 of Dr L’ report it was submitted that he said he considered the father could spend weekend time with the child within a couple of months.
The father submitted that there was ample evidence of a subtle undermining of the father’s relationship with the child by the mother rather than an overt one.
The father submitted that if the mother was to live at Suburb R, then she should share in some of the driving for handovers between one parent and another.
The father addressed the issue of the possibility of his moving to the Suburb R area, however, that seems to be impracticable given that he lives in his wife’s house and she is committed to living in the northern coastal suburbs of Sydney.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

In this matter each of the parties proposes that the child have a meaningful relationship with the other parent and with themselves.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This case has produced evidence which does suggest various forms of abuse have been visited upon the child the child by the parents. This abuse has been seen in the handovers between the parties of the child at the mother’s home. The parents allowed a circumstance to continue where the child became traumatised on occasions when transferring between the parents. The parents should have changed the arrangements for changeovers however they appear not to have had the ability to do so. The changeovers which occurred at the child’s child care all worked well for the child.
There is also evidence that the child has been exposed to behaviour by both parents at different times which would have frightened her or made her feel uncomfortable.
Notwithstanding the above I am satisfied each parent has learned a great deal about the impact of their behaviour on the child and the potential to expose her to abuse. I consider each parent will make a conscious effort to ensure these events do not reoccur.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child is at an age where the court could not give any meaningful weight to her stated views or wishes.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
I accept the evidence of the single expert that the child has a good and close relationship with each of her parents. I also accept she has good and appropriate relationships with each parents’ extended family and the father’s wife.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
This has been an issue of some significance in this matter. One contention strongly held by the father is that the mother has been undermining his relationship with the child. The single expert also recognised that the mother had a difficulty in being able to share the child with the father, however, he opined that she has made significant progress in addressing that problem. I had the opportunity to hear the mother give oral evidence and I was left with the clear understanding that she does recognise the role of the father in the child’s life and is moving to accommodate that.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
At the commencement of the hearing, the father was seeking to have the child live with him and spend time with the mother. He based his application on his allegation that the mother was undermining his relationship with the child and that the only solution to this problem was to have the child change residence. At the conclusion of the hearing he withdrew his application for residence. Thus the child will continue to live with her mother and spend time with her father. The parties have been able to agree on a final regime for the time the child should spend with the father, however, they are unable to agree on the process of achieving that end stage and also how the number of days during the school week the child is to spend with her father should be configured.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The mother proposes to move her residence from the northern coastal suburbs of Sydney to the Eastern suburbs of Sydney. That move will cause a practical difficulty for the parties to be able to implement the regime for care of the child which the Court will order. Not only is there a problem about geographical distance but also the time of day the travel between the two homes is to be undertaken. Peak hour traffic can add considerable length to the time of the journey.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that each of the parents has the capacity to provide for the physical and emotional needs of the child. During the hearing each of the parents raised concerns about the others capacity to provide optimally for the child’s emotional well being. I conclude that each had legitimate criticism of the other in this area however I consider both have the capacity to provide a reasonable environment for the child to develop appropriately.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is still a young female child who is primarily attached to her mother. She has a good relationship with her father.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration in this matter.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that although each of the parents have failed to act as responsible parents in the past it is likely that they will be able to act responsibly in the future. In the past the mother has demonstrated an inappropriate attitude towards the child. The single expert concluded she was seeking an exclusive relationship with the child and that her personality was controlling. I find that her understanding of her responsibilities as a parent and her understanding of the important role the father has to play in the growth and development of the child has altered since she met with the single expert.
(j)any family violence involving the child or a member of the child’s family
Neither party raised allegations of family violence for me to consider. The mother had raised allegations of possible abuse by the father of the child, however, she withdrew any such suggestion and apologised to the father from the witness box for having made the allegation.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no family violence order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is preferable in this case to make final orders.
(m)any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance to consider at this point.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence satisfies me that the father has sought to exercise his time with the child as court orders have permitted. Although the father complained the mother was incapable of offering further time for the child to spend with him or alternatively to change times for particular occasions, there is evidence that she did make changes.
The effect of the hearing has been to allow the parties to better communicate ad I am satisfied the mother is better motivated to communicate with the father at a proper level and involve him in decision making for the child.

Specific issues identified

The Mother’s proposal to live in Suburb R.

I have considered the mother’s proposal to move to Suburb R. There are many aspects of that proposal which must be seen as in the child’s best interests. Some of those matters include:
·The mother owns the accommodation at Suburb R and so occupation will not be under threat from a landlord who wishes to take possession of the property.
·The cost of accommodation will be less.
·The ability to travel to Canberra or the south coast of NSW is enhanced because the premises at Suburb R are proximate to highways to those two locations making the mother’s parents and relatives more accessible to her.
·The location will enable the mother to seek work in the city and thus improve her income opportunities.
The disadvantages of the mother moving to Suburb R include:
·There is a far greater distance between the parents residences.
·The child will develop school friendships in the eastern suburbs of Sydney and will thereby have very few same aged friends in the vicinity of the father’s home.
·Any birthday parties she is likely to be invited to will be in the area of the mother’s residence. Thus if she is invited to a birthday party which occurs on a day when she is with her father then she will be subjected to considerable travel or alternately other arrangements will need to be made for her.
·It is unlikely that the father’s wife will be able to be of assistance should some emergency arise for the child while she is at school and the parents are working in the city. If the mother had remained in the area where she has been living with the child then that was close to the father’s wife’s residence.
In my view, this is not a relocation case. Both parties propose living in the Sydney metropolitan area. The mother’s proposal is that she resides with the child at Suburb R in an apartment which is owned by the mother subject to a mortgage. I accept the mother’s evidence that the accommodation provided by the Suburb R apartment is superior to that of the rented accommodation she currently resides in in the northern coastal suburbs of the Sydney metropolitan area. I accept the mother’s submission that being able to reside with the child in an apartment which the mother owns will add to the security that she can provide for the child and is likely to lead to a circumstance where the child will be located in one specific geographical area for a considerable period of time. That will mean the child will develop friendships and develop a familiarity with one particular location. In my view there is merit in the mother’s proposal to live in Suburb R and for my part I would not accede to the father’s application to prevent the mother from moving child’s residence out of the northern coastal suburbs of Sydney.

The points in time at which there should be increases in the time the child will spend with the father during school term.

I have dealt with this issue as set out elsewhere in these reasons.

How should the burden of travel associated with the time the child spends with the father be shared between the parents?

The father suggested that the mother should be more involved in transporting the child for changeover of care that she currently is. He made some rather unusual suggestions about the travel which the mother could make. This included collecting the child from his residence on school day mornings and taking her to school. This would involve the mother travelling from Suburb R to the northern coastal suburbs and back again before school.
Clearly there needs to be a balance in the effort each party needs to provide to facilitate change over of care and I propose to make orders to provide for some equity as between the parties in relation to this issue.

Christmas time for the child with each parent. Should there be any special provision for the child to share this time between her parents?

This aspect was finally resolved between the parties and the order I propose will work well for the child. The parties have in the past endeavoured to share Christmas time with the child, however, on the father’s evidence he found it very difficult to negotiate an arrangement with the mother. Further findings in relation to how Christmas time will be shared are set out later in these reasons.

The child’s birthday. What arrangements should be put in place to allow her to see each parent on or near her birthday?

The parties reached agreement about this issue. The orders I propose to make reflect that agreement.

Telephone contact for the child with each of her parents.

This has been problematic in the past. The father says the child is not interested in phone contact with her mother when she is in her father’s care. The mother is seeking phone time with the child whilst she is with the father. This is perhaps evidence of the mother’s anxiety and the making of an order has the potential to lead to further litigation as the mother will take some convincing before believing that the child is not at all times eager to speak with her when the child is spending time with her father. I do propose to make some orders for phone time for the child with each of her parents. At the very least such an arrangement might at the very least lessen the mother’s anxiety about the child spending time with the father and lead to a more stable and calm environment for the child in her mother’s house.

Payment of the Independent Children's Lawyer’s costs.

I have set out below my determination of this issue.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in s 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of the child for the reasons specified above and hereafter.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has not been family violence as has been set out earlier.
The section further provides in sub-section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is no reason for the presumption not to apply and neither parent seeks that. There will be an order for equal shared parental responsibility.

Section 65DAA

SECTION 65DAA(1)-(4)

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
In this case the child is still quite young. She has not yet commenced her formal schooling. Neither the single expert nor the Independent Children's Lawyer suggest an equal shared time arrangement for the child.
The parties agree upon the number of days/nights the child should spend with her father. They cannot agree on the specifics of that agreement.
The parties are still quite unaccustomed to communicating, and parental communication at a level required to implement an equal shared time regime is currently beyond the resources of the parties.

The order I propose to make will afford the parties close to equal shared time with the child and I find that to be in her interests.
Both parties either do now or intend to do in the future, full-time employment. In order to work each party is reliant upon assistants to collect and drop the child off at her school.
I consider an equal shared time agreement is unlikely to be successful between these two parents.

SECTION 65DAA(5)

As stated earlier, the parties will live a significant distance apart, yet in the same metropolis. There will be at least an hour’s travel between the parties’ houses.
Each of the parties has the capacity to implement an arrangement for the care of the child in the manner I have determined is best for her. That is, the father has the capacity to support the child living with the mother and the mother has the capacity to support the child spending time with the father.
The parties have a developing capacity to communicate appropriately for the purpose of making and agreeing upon arrangements for the child. I consider their ability to communicate in the future ought to improve, provided the mother can recognise that she does have “controlling” aspects to her communication. The evidence of this controlling style of communication was evidenced by Ms T for the day care centre and by the single expert.
The orders I propose to make should enable the child to continue to grow her relationship with each of her parents.

Determination

Having regard to all the matters raised by the parties in submission, and to the evidence referred to earlier, I conclude that the time the child should spend with her father between the date of these orders and the commencement of the first school term in 2013 should be as proposed by the father. The reason I consider that proposal to be in the best interests of the child is as follows:
a.The father has been exercising substantial time with the child for the bulk of this year. The most disturbing aspect of the evidence, so far as it has impacted on the child, is the evidence of the handover at the mother’s residence, which has been very traumatic for the child. The evidence does not reflect well on either party but in particular does not reflect well on the mother. It is hard to imagine how two caring parents can allow a circumstance to continue for so long where they could reasonably have predicted that each changeover at the mother’s household, where the child was transferring from her mother’s care to her father’s care, would be problematic for her. For my part, I would not expose her to that trauma any longer. The only way to avoid that trauma is to avoid handovers at the mother’s residence. The parents each appear to accept that is appropriate.
b.The evidence from the father and his witnesses as to the relationship between the child and the father satisfies me that the child has a good and strong attachment to her father and is happy and contented in his care. The evidence of Dr L would also support such a conclusion. I do not consider that an increase in the alternate weekend time the child spends with her father, by the addition of one evening, where that time commences from her day care or school at about 3.00 p.m. on Friday, will create a difficulty for the child. I accept that her mother may feel some anxiety, however, to my observation she has progressed substantially in her own development as a parent in recognising the need to share parenting responsibility with the father. She has acknowledged gross errors made on her part and, to my observation, appears to have matured significantly in her parenting skills.
c.I accept that there is a close relationship between the child and her mother, and I accept that even though the mother has changed her attitude to the time the child spends with her father, it is unlikely that all signs of anxiety will have disappeared from the mother’s persona at the time when the child is spending time with her father.

For the period commencing the beginning of first term 2013 to the end of the first term 2013 school holidays, the parties are in agreement about the time the child will spend with her father during school term time. So far as the first term school holidays are concerned, I consider the proposal of the ICL to be preferable, as it will provide some extended time for the child to spend with her father, however, it will be limited to four nights. A six night period away from her mother at the end of first term of school, in my view, may be a strain for her and I would not subject her to it.
For the period commencing the beginning of second term to the commencement of the first term in 2014, I prefer the proposal of the ICL. This proposal differs from the mother’s, in that the mother proposes for overnight time in the alternating second week, however, they would be broken so that the child spends a maximum of three nights with her father on that occasion rather than four nights as proposed by him.
For the period commencing first term 2014 to the commencement of first term 2015, again I prefer the proposal of the Independent Children's Lawyer, which differs only from the proposal of the mother in relation to how the four overnight periods the child spends with her father in the second week are configured. It seems to me that the mother’s proposal is probably driven by an anxiety as to how the child will cope with spending from Thursday evening to Monday morning with her father on an alternate weekend basis. However the evidence of the single expert supports a conclusion that the child will be able to benefit from that time and will cope with separation from her mother.
For the period commencing first term 2015 school year and continuing, again for the same reason I prefer the proposal of the ICL.

Christmas Day

The ICL and the mother seek the following order in respect of Christmas Day time for the child to spend with the father: “In even numbered years 3pm Christmas Day to 3pm Boxing Day. In odd numbered years 3pm Christmas day to 3pm Boxing Day with the mother.”
The father is opposed to breaking up Christmas Day between the parents. He proposes that, in the absence of agreement, in even numbered years, the child should be with him from 5.00 p.m. on Christmas Eve until 10.00 a.m. on Boxing Day and, in years ending in an uneven number, the child should be with him from 10.00 a.m. Boxing Day to 5.00 p.m. on 27 December. It may be that in some years the child will be with her father at those times by reason of the arrangements made between the parties in relation to the school holidays.
In this year, the father seeks that he have the child for holiday time commencing on 17 December and concluding on 21 December and then from 26 December to 30 December. There would need to be a reciprocal arrangement for the mother so that in the year that the father had the child from Christmas Eve to Boxing Day the mother would have her between Boxing Day and 5.00 p.m. on 27 December.
It seems to me that the father’s proposal is a more workable one for the parties, given that the mother would seek to spend Christmas with her family in Canberra and would be able to have the child returned to Sydney by perhaps 11.00 a.m. on Boxing Day and likewise the father would be able to enjoy a continuous unbroken Christmas Day with his extended family. However, in the year ending 30 June 2012 the arrangements proposed by the father ought to be acceptable to the mother and therefore I propose to make that order.
In the Christmas break at the end of 2012 the father’s holiday period is limited and he has requested that he have the child with him from 17 December until 21 December and then again from 26 December to 30 December 2012. Although these two periods are not two weeks apart as was originally suggested by the Independent Children’s Lawyer, in my view it is important for the child to have some holiday time with her father and in this particular year he is restricted about the time at which he can take leave. There should be a further period of five days during those Christmas school holidays which can be nominated by the mother, with notice being given to the father by 31 October this year.
One of the matters the parties have agreed upon is that where the father is spending time with the child on non-school days, then the mother will deliver the child to the father at the commencement of that time and the father will return the child to the mother at the conclusion of that time. The parties had proposed that the arrangements could be altered by giving notice, however, that is likely to be problematic and I propose to make an order that the arrangement can only be changed where there is agreement between the parties confirmed by email.
In relation to telephone contact between each parent and the child, the parties had agreed that there would be no specific order for telephone contact during the normal school term time. However, the father seeks an order for telephone contact between the child and the parent who does not have her care at the time during school holiday times. In my view that is an appropriate order and I will make an order accordingly.
The ICL seeks an order that the father ensure the mother has a current mobile telephone number for his wife, Ms J. No submission is made against that order being made and I propose to make it.
The father seeks an order for make up time in the event that the child is unable to spend time with him due to ill health. There were no submissions made against the father’s request in this regard. It is frequently a provision in Court-made parenting orders for make up time to be stipulated. I consider an appropriate order would provide for the farther to be afforded make up time where more than two days in any calendar month are lost because the child was too sick to spend time with him. Such a provision gives the father the opportunity to strengthen his relationship with the child where his normal scheduled time with her has been interrupted by her inability to spend time with him.
The ICL seeks an order that each of the parties pay within 21 days to Legal Aid NSW one half of the costs of the Independent Children’s Lawyer which have been assessed at $17,961.15 together with a further disbursement of $1,320 for the attendance of Dr. L at the hearing in this matter. That would require a payment of $9,641 from each party.
The father opposes the order and seeks an order that the mother pay the costs of the Independent Children’s Lawyer. He submits that the mother should meet the costs because the proceedings were principally required due to the allegations of sexual abuse made by the mother against the father. It is submitted that the vigour with which the mother pursued the sexual abuse claims can be seen from the notes contained in the hospital records produced by the hospital and marked Exhibit F1. Further, it is submitted that the mother’s financial circumstances are significantly better than those of the father as is illustrated by her ability to earn income. The mother owns a property at Suburb R. In relation to the mother’s evidence in respect of her income it was submitted it was designed to be misleading. In her affidavit of 12 April 2012 she said she earned about $83,000 per annum. She gave oral evidence conceding that this did not include the income she received from the renting of the apartment and it did not include bonus income which she had received. The husband’s income is said to be $50,000 per annum when he has the ability to work additional hours.
Section 117 of the Family Law Act sets out the circumstances in which the Court can consider making an order for costs. Section 117(2A) sets out the matters which need to be taken into account when making an order for costs. In this case no cost order is sought by either party against each other. The costs sought are those of the Independent Children’s Lawyer. There are good social reasons why the costs of the Independent Children’s Lawyer should be paid, one of those reasons being that it replenishes a pool of funds which can then be used to provide legal assistance in other cases where parties qualify for legal aid.
In my view, there is a basis for making an order which is different for the father than it is for the mother and that is based on their financial circumstances. I form the view that the mother’s financial circumstances are better than those of the father, principally because of her capacity to earn a greater income and the fact that she is the owner of a property. I propose to order that the father pay $6,427 (one third) and the mother pay $12,854 towards the costs of the Independent Children's Lawyer.
I propose to allow each of the parties 90 days in which to make the payment of costs as I have no information in relation to any savings they might have readily available.

I certify that the preceding two hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 21 September 2012.

Associate:

Date: 21 September 2012

[2012] FamCA 819

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Procedural Fairness