Jakiemiec and Buckingham

FAMILY COURT OF AUSTRALIA

JAKIEMIEC & BUCKINGHAM

[2007] FamCA 542

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

Family Law Act 1975 (Cth)

APPLICANT:

Mr Jakiemiec

RESPONDENT:

Ms Buckingham

INDEPENDENT CHILDREN’S LAWYER:

Verekers Lawyers

FILE NUMBER:

SYF

2006

DATE DELIVERED:

7 June 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

7 September 2006, 26 October 2006, 2 November 2006, 15 November 2006, 23 November 2006, 22 February 2007, 1 March 2007, 28 March 2007, 3 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr MacPherson

SOLICITOR FOR THE APPLICANT:

Mr Chodat

SOLICITOR FOR THE RESPONDENT:

Mr A Williamson

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Alexander

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Mr P Williamson

Orders

All previous parenting orders be discharged.
The Mother and Father have equal shared parental responsibility for the child of their relationship, a daughter, born on … October 1995.
The Mother have responsibility for the day to day care, welfare and development of the child while the child resides with her pursuant to these orders.
The Father have responsibility for the day to day care, welfare and development of the child while the child resides with him pursuant to these orders.
If the Mother does not relocate to the W area on or before 16 July 2007 then as from 16 July 2007 the child live with the Father.
If the child lives with the Father pursuant to Order 5 hereof then on the basis that the Mother continues to reside in K, the child live with the Mother:
6.1For one half of each school holiday period as agreed between the parents and in default of agreement with the Mother for the second half of the school holidays in even numbered years and with the Mother for the first half of the school holidays in odd numbered years and in the absence of agreement the school holiday periods shall commence at 9.00 am on the day following the last day of school and shall conclude at 5.00 pm on the day prior to the commencement of school whether or not that day is a public holiday.
6.2For two weekends during each school term as agreed between the parties.
If the Mother does relocate to the W area on or before 16 July 2007 then as from 16 July 2007 the child live with the Father.
7.1During 2007 for two hours on the first to fourth Saturdays after 16 July 2007 or other agreed day if the Father’s roster does not permit at agreed times or, in default of agreement, from 2.00 pm to 4.00 pm.
7.2During 2007 for four hours on the fifth to eighth Saturdays or other agreed day if the Father’s roster does not permit at agreed times or, in default of agreement, from 2.00 pm to 6.00 pm;
7.3During 2007 for nine hours on the ninth to twelfth Saturdays or other agreed day if the Father’s roster does not permit at agreed times or, in default of agreement from 9.00 am to 6.00 pm;
7.4Thereafter, during school terms, each alternate weekend from after school on Friday until before school on the following Monday or before school on the following Tuesday if the Monday is a public holiday or other agreed days if the Father’s roster does not permit.
7.5As from the commencement of the 2008 school year during school terms, for twenty nights per term with the Father to provide the Mother with his roster not less than seven days prior to commencement of that roster and the Mother to select two work-free days per week on which the child will spend time with the Father with, as far as possible, those nights being consecutive and at least two nights per fortnight being weekend nights.
7.6For one week in January 2008 during the school holidays.
7.7As from the commencement of the 2008 school year for one half of each school holiday period as agreed between the parents and in default of agreement with the Father for the first half of the school holidays in even numbered years and with the Father for the second half of the school holidays in odd numbered years and in the absence of agreement the school holiday periods shall commence at 9.00 am on the day following the last day of school and shall conclude at 5.00 pm on the day prior to the commencement of school whether or not that day is a public holiday.
In addition to the times referred to in Order 7 hereof the child live with the Father:
8.1On such other occasions as the parents agree.
8.2If it would not otherwise fall on a weekend when the child would live with the Father pursuant to these orders, from 9.00 am on Father’s Day until the commencement of school on the following Monday.
8.3From 3.00 pm on 25 December 2007 until 5.00 pm on 26 December 2007 and thereafter each alternate year.
If the Mother does relocate to the W area on or before 16 July 2007 then as from 16 July 2007 subject to Orders 7 and 8 hereof the child otherwise live with the Mother including:
9.1If it would not otherwise be a week when the child would live with the Mother pursuant to these orders, from 9.00 am on Mother’s Day until the commencement of school on the following Monday.
9.2From 3.00 pm on 25 December 2008 until 5.00 pm on 26 December 2007 and thereafter each alternate year.
The child have the following communication with her parents:
10.1By telephone between 8.00 am and 9.00 am on Christmas morning with the parent other than the parent in whose care she is during that morning;
10.2By telephone twice a week at agreed times or, failing agreement, on Tuesday and Thursday between 6.00 pm and 8.00 pm when the child is living with the other parent; and
10.3By telephone or email at any time at which the child requests such communication.
For the purpose of communicating information between the parents, the Father and the Mother may communicate by:
11.1     Telephone;
11.2     Letter or email; or
11.3     SMS.
To facilitate these orders, the Father collect the child from school or the Mother’s residence at the commencement of the period of time the child is to live with the Father pursuant to these orders and the Mother collect the child from school or the Father’s residence at the commencement of the period of time the child is to live with the Mother pursuant to these orders.
Other than in respect of school holidays each party will give to the other not less than 48 hours notice of his or her inability to spend any particular period of time with the child unless his or her inability is created by an emergency in which case he or she will advise the other as soon as practicable.
Each of the Father and Mother shall:
14.1Inform the other as soon as possible of any serious illness or injury suffered by the child while in their respective care.
14.2Inform the other as soon as possible of any medical treatment being administered to the child or any specialist appointments which the child is to attend.
14.3Provide all authorities and directions necessary for all health professionals consulted by the child to provide to each of the Father and Mother all information and material held in relation to the child.
14.4Provide all authorities and directions necessary for all schools attended by the child to provide to each of the Father and Mother all information and material held in relation to the child.
14.5Inform the other and keep the other informed as to their current residential address and contact telephone number.
14.6Inform the other and keep the other informed as to any school or religious functions which the child is to attend.
Each parent be entitled to attend events involving the child including, but not limited to:
15.1Sporting fixtures.
15.2Extra curricular activities that allow for parental attendance or participation.
15.3School functions and events that allow for parental attendance or participation provided that the parent who has the child in his or her care on the day of any such activity will be responsible for the day to day care of the child at that event including her transportation to and from the event unless otherwise agreed by the parents.
15.4Any religious activity in which the child is involved or participating in and to which parents are also able to attend or participate.
If the parents cannot reach a joint decision about:
16.1A major long-term issue involving the child; or
16.2The interpretation of these Orders; or
16.3The implementation of these Orders; or
16.4The enforcement of these Orders
each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act 1975 (Cth)
Before an application is made to a Court for a variation of these orders to take account of changing circumstances, each of the parents must consider:
17.1Attending counselling or mediation with an organisation recognised under the Family Law Act; and
17.2Participating in Family Dispute Resolution with a person authorised under the Family Law Act.
Neither parent shall say anything to or in the presence of the child or allow any other person to say anything to or in the presence of the child which is in any way derogatory of the other parent or the other parent’s partner or in relation to any proceedings between the parents concerning the child.
The Independent Child Lawyer do all that is necessary to arrange for a Family Consultant and the child to meet prior to the first occasion of time spent by the child with the Father under Order 7.1 above.
The Father and Mother and the Father’s sister, Ms T and the maternal grandmother, Mrs G, meet with a counsellor from the Family Relationships Centre at W to assist the parents in arranging how the time the child will live with each parent should occur.
The “[W] area” where referred to in these orders refers to an area determined by a 30 km radius from the W Post Office.
Each of the Mother and the Father with the assistance of the Independent Child Lawyer engage a suitably qualified person to assist them in re-establishing the relationship between the child and the Father and enable the child to have a meaningful relationship with both parents.
It be noted that the intention of Order 22 is that the parties will undertake the therapeutic assistance recommended by Dr R.
I grant to the Independent Child Lawyer leave to make an application for an order that the costs of the Independent Children’s Lawyer be borne by the parties, each in the amount of $1,650.00, together with the costs of Dr R, each in the amount of $1,430 and the costs of the final hearing, each in the amount of $2,000.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 6 of 2006

Mr Jakiemiec

Applicant

And

Ms Buckingham

Respondent

REASONS FOR JUDGMENT

Introduction

Before me for hearing are applications for final parenting orders. The proceedings were commenced by application filed in the Local Court at W on 28 November 2005 on behalf of Mr Jakiemiec who is the Father. The Mother is Ms Buckingham.
At the commencement of the hearing the Father sought the following orders:
1.      That the mother and the father have equal shared parental responsibility for the child of the relationship namely [a daughter], born […] October 1995 (“[the child]”), in relation to the care, welfare and development of a long term nature to include but not be limited to, issues about:
1.1the education of the child both current and future;
1.2the religion of the child;
1.3the health of the child; and
1.4any changes to the child’s living arrangements.
2.      That the mother and the father each have responsibility for making decisions about the day to day care, welfare and development of [the child] when she is in their respective care.
3.      That [the child] live with the mother.
4.      That [the child] spend time with the father as follows:
4.1for 1 hour twice per week for 2 weeks;
4.2for 2 hours twice per week for 2 weeks thereafter;
4.3for 4 hours twice per week for 2 weeks thereafter;
4.4for 8 hours once per week for 2 weeks thereafter;
4.5for five nights per fortnight thereafter, with the father to provide the mother with his available days/nights for the upcoming month, seven days prior to the commencement of his monthly work roster coming into effect.
4.6for half of all school holidays at times to be agreed and in default of agreement the first half in 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter.
4.7at such other times as agreed between the parties.
5.      That the Family Consultant [Ms M] and [the child] meet prior to the first 1 hour time spent with the father and continue such meetings as considered appropriate by the Family Consultant.
6.      That the father engage [Dr C] or such other suitably qualified person to assist the father in coping with this difficult situation that he is confronting.
7.      That the mother engage [Dr S] or such other suitably person to assist the mother in finding ways of re-establishing the relationship with the father and [the child] and maintain that relationship.
8.      That the father and mother and the father’s sister [Ms T] and the maternal grandmother [Mrs G] meet with a counsellor from the Family Relationships Centre [W] to assist the father and the mother in arranging how time spent with [the child] could occur and do all things recommended by that Counsellor.
9.      That the father and mother not denigrate one another in front of or within hearing of [the child].
10.     That the first 12 times spent with periods referred to in Orders 4.1, 4.2 and 4.3 occur at a location which is familiar with [the child].
11.     That the mother at all times reside within 15 kilometres of the [W] Post Office and she be restrained from moving from this area without the consent of the father or further order from the court.
12.     That the mother pay the father’s costs of and incidental to this Application.
The Mother seeks the following:
By way of final order:
1.      [The child] born[…] October 1995 to reside with the mother.
2.      The mother and father each have parental responsibility for making decisions about the day to day care, welfare and development of [the child] when she is in their respective care.
By way of interim order:
3.      The parties to confer jointly with a family expert agreed upon between the parties but failing agreement as selected by the Court’s Family Consultant or the child’s independent lawyer and endeavour to reach agreement as to the best methods of allowing the father to spend time with [the child] and communicate with [the child].
4.      Application adjourned for six months on a date to be fixed by the Registry.
5.      Leave to restore on 7 day’s written notice by either party.
6.      The father and the mother not to denigrate each other in front of or within hearing of [the child].
There is an Independent Child Lawyer who was represented by counsel. The orders sought by the Independent Child Lawyer are:
1.      That the mother and father have equal shared parental responsibility for the child of the relationship [a daughter] born […] October 1995 (“[the child]”), such responsibility to include, but not be limited to, issues about:-
(a)the education of [the child] – current and future;
(b)her religion;
(c)her health;
(d)any proposed change of name; and
(e)any change to her living arrangements that may make it significantly more difficult for [the child] to spend time with either parent.
2.      That each parent be entitled to attend events involving [the child] including, but not limited to:
(a)sporting fixtures;
(b)extra curricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation
PROVIDED THAT the parent who has [the child] in his or her care on the day of any such activity will be responsible for the day to day care of her at that event including her transportation to and from the event unless otherwise agreed by the parents.
Orders for living with the mother and the father
3.      That [the child] live with her mother other than when she is spending time with, or living with, her father pursuant to these Orders PROVIDED THAT the mother relocates to the [W] area on or before Saturday 14 July 2007.
4.      That, if the mother does not relocate to the [W] area on or before 14 July 2007, [the child] live with her father other than when she is living with her mother and will live with her mother:
(a)from the date she returns to [W] ; or
(b)if the mother remains living in [K], for half of each school holiday period and for two weekends during each school term as agreed between the parties.
5.      That, from the date on which the mother relocates to the [W] area (“the commencement date”) [the child] will live with her father as follows:
During 2007
(a)For two hours on the 1^st to 4^th Saturdays after the commencement date (or other agreed day if the father’s roster does not permit) at agreed times or, in default of agreement, from 2.00 pm to 4.00 pm;
(b)For four hours on the 5^th to 8^th Saturdays (or other agreed day if the father’s roster does not permit) at agreed times or, in default of agreement, from 2.00 pm to 6.00 pm; and
(c)Thereafter as recommended by the counsellor referred to in Order 17 below.
During 2008 and each even-numbered year thereafter:
(d)During school terms, for twenty nights per term with the father to provide the mother with his roster not less than seven days prior to commencement of that roster and the mother to select two work-free days per week on which [the child] will spend time with her father with, as far as possible, those nights being consecutive and at least two nights per fortnight being weekend nights; and
(e)During school holiday periods, one week in January 2008 and thereafter for half of each school holiday period as agreed or, in the absence of agreement, the first half.
During 2009 and each odd-numbered year thereafter:
(f)During school terms, for twenty nights per term with the father to provide the mother with his roster not less than seven days prior to commencement of that roster and the mother to select two work-free days per week on which [the child] will spend time with her father with, as far as possible, those nights being consecutive and at least two nights per fortnight being weekend nights; and
(g)During school holiday periods, half of each school holiday period as agreed or, in the absence of agreement, the second half.
Orders for spending time with each parent upon significant occasions
6.      That [the child] spend additional time with the Father as follows:
(a)Upon such occasions as the parents agree;
(b)If it would not otherwise be a week when [the child] would live with the father, from 9.00 am Father’s Day until the commencement of school on Monday;
(c)From 3.00 pm on 25 December 2007 until 5.00 pm 26 December 2006 and thereafter each alternate year.
7.      That the children will spend additional time with the Mother as follows:
(a)Upon such occasions as the parents agree;
(b)If it would not otherwise be a week when [the child] would live with the mother from 9.00 am Mother’s Day until the commencement of school on Monday;
(e)From 3.00 pm on 25 December 2008 until 5.00 pm Boxing Day and thereafter each alternate year; and
Additional Orders
8.      That, for the purpose of these Orders, the Christmas holiday period commences at 9.00 am on the first day after the last day of school and concludes on the last Sunday of the holidays with [the child] to live with the mother (or the father if [the child] is living with him under Order 4 above) from that day.
Orders for Communication
9.      That [the child] have the following communication with her parents:
(a)By telephone between 8.00 am and 9.00 am on Christmas morning with the parent other than the parent in whose care they are during that morning;
(b)By telephone on Tuesday and Thursday between 6.00 pm and 7.00 pm when [the child] is with the other parent; and
(c)By telephone or email at any time at which [the child] requests such communication.
10.     That for the purpose of communicating information between the parents, the Father and the Mother may communicate by:
(a)telephone;
(b)letter or email; or
(c) by SMS.
Orders for changeover
11.     To facilitate these Orders, the Father must collect [the child] from school or the mother’s residence at the commencement of his time with her and the mother must collect [the child] from school or the father’s residence at the end of that time.
Orders for parental communication
12.     That each parent must ensure that the other parent is kept informed as soon as is reasonably practicable of:
(a)any serious medical problems or illness suffered by [the child] whilst in the care of the other parent;
(b)any medication that has been prescribed for [the child];
(c)any specialist medical appointments for [the child];
(d)any school or religious functions which [the child] is to attend;
(e)the residential address of the other parent;
(f)the telephone contact number of the other parent; and
(g)an emergency number for each household.

Orders for Dispute Resolution
13. That if the parents cannot reach a joint decision about:
(a)a major long-term issue involving [the child]; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders

each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.
14. That before an Application is made to a Court for a variation of these Orders to take account of [the child’s] changing needs or circumstances, each of the parents must consider:
(a)attending counselling or mediation with an organisation recognised under the Family Law Act; and
(b)participating in Family Dispute Resolution with a person authorised under the Family Law Act.
15.(a) That the mother and the father not denigrate the other parent in the hearing of [the child] or in circumstances likely to come to her attention.
(b)That the mother and the father use their best endeavours to prevent other persons, and especially family members, from denigrating the other parent in the hearing of [the child] or in circumstances likely to come to her attention.
(c)That the mother and the father not discuss with [the child] these proceedings (or any court proceedings related to her).

16.     That the mother authorize the father to receive any material published by the school attended by [the child] of a type which would normally be provided to parents.
17.     That the Family Consultant [Ms M] and [the child] meet prior to the first occasion of time spent by [the child] with her father under Order 5(a) above and continue to meet with her for such time as the Family Consultant considers appropriate.
18.     That the father and mother and the father’s sister, [Ms T] and the maternal grandmother, [Mrs G], meet with a counsellor from the Family Relationships Centre [W] to assist the parents in arranging how time spent with [the child] should occur and to make the recommendation referred to in Order 5(c) above.
19.     That the “[W] area” where referred to in these orders refers to an area determined by a 30 km radius from the [W] Post Office.
20.     That each of the mother and the father engage a suitably qualified person to assist them in re-establishing the relationship between [the child] and her father.

Some changes were made to the above orders after the oral evidence of Dr R.

At the conclusion of the hearing counsel for the Father said that the Father agreed with the orders sought by the Independent Child Lawyer.
I also had the benefit of evidence from a court expert Dr R who is a Child, Adult and Family Psychiatrist and he was cross examined. The orders sought by the Independent Child Lawyer reflect the recommendations of the court expert.
The Father was born on … June 1964 and the Mother was born on … December 1966. The parties commenced cohabitation in 1994 and finally separated in September 1996.
There is one child of the relationship, the child, who was born on … October 1995. The child lives with the Mother.
As Dr R said, the Mother worked as health worker and the Father as an airline employee. The Father was based overseas for long periods of time. There are orders for the child to spend time with the Father but the child is refusing to attend.

Parenting - relevant principles

General

For a discussion of the relevant provisions of Pt VII of the Family Law Act1975 (Cth) see Goode and Goode [2006] FamCA 1346.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Family Law Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Goode and Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) of the Act provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Family Law Act. There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met and they are: first, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) which underlie the objects. They are, except when it is or would be contrary to the best interests of a child: first, that children have a right to know and be cared for by both parents; second, that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth that parents should agree about the future parenting of their children; and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B and B; Family Law Reform Act 1995 (1997) FLC 92-775. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Family Law Act, and this includes how Court’s should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Family Law Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make.
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode and Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I am satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60B and s 60CC.
If I am satisfied that the presumption of equal shared parental responsibility does apply then, by virtue of s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether this is reasonably practicable. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether this is reasonably practicable. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode and Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60CC and s 60B.

Background

Dr R said that the Mother told him that she left school at the age of 18 and went to Sydney University and completed a health practitioner’s degree. Since leaving university she has worked mainly in health practitioner positions. She spent 10 years in the Emergency Department at W Hospital.
As to the Father, Dr R reported:
When he was 19 he began studying [health] he felt that his learning ability improved. “It was like a cloud had lifted.” He finished his [health] degree and worked in a variety of positions including [P Hospital] Intensive Care Unit and the Oncology Unit at the [public] Hospital and for a number of agencies. He then began studying to become [an airline worker] in 1987 and trained part time. He went to the Northern Territory for 3 years in 1993. He worked in the [Pacific] Islands for 3 years and he moved to work with Impulse Airlines in 1999-2000. He worked with [C Airlines] in [Asia] between 2000 and 2004 and then has been with [J airlines] since 2005.
The parties first met in 1991-1992. The Father contended that the parties were in a defacto relationship from 1994 to 1996. The Mother asserts that the parties had a relationship from about 1990 until 1996.
During the relationship the Father was employed as an international airline worker and the Mother contended that he spent lengthy periods of time away from the home and outside of Australia.
The parties separated for four-five months during 1995.
The child was born in October 1995.
In March 1996 the parties separated for about four months.
The parties finally separated in September 1996.
The evidence about time(s) the child has spent with the Father since separation is confusing and there are facts in dispute issues between the parties. However I will set out what is contended.
Between 1996 and 1998 the Father was working in the Pacific Islands.
The Father contended that since separation he has been employed by various companies as an airline worker which required him to be overseas for extended periods of time. However, on his return to Australia he resided with his sister and brother-in-law and had extended contact with the child for up to seven days. He also contended that when he was working overseas he telephoned the child at least once a week and the calls usually lasted between 15 to 30 minutes. He asserts that this contact enabled him to develop what he described as a close and loving relationship with the child.
The Father contended that between 1996 and 2000 he spent time with the child for approximately five to seven days overnight every six months because at the time he was living in the Pacific Islands.
The Mother contended that for the first three years after separation the Father would only see the child about once or twice a year and that most of these contact periods occurred at her home and under her supervision.
In 2000 the Father lived in rented accommodation at S in Sydney.
The Mother contended that from about 2000 she agreed to allow the child to spend up to three or four nights, usually during the school holiday periods, with the Father.
The Father contended that from 2000 to 2001 he spent time with the child on a monthly basis usually for one to two days overnight.
The Mother contended that between 2000 and 2004 the Father lived in Asia. The Father contended, and I accept, that in 2001 he moved to Asia as a result of his employment with C Airlines. He contended that between 2001 and October 2004 he spent time with the child three to seven days in block periods and this usually involved weekends and school holidays and the frequency of these periods ranged from two to six months. He contended that he had at least 12 contact periods of up to three to seven days during this time.
The Mother contended that in about 2001 the child told her that she did not love the Father and said: “I don’t miss him when he is not here, I don’t even think about him”.
The Mother contended that in about 2002 or 2003 the child first started to “express a resistance” to having contact with the Father.
In 2002 or perhaps earlier an incident is alleged to have occurred involving the child. The Mother contended that the child said “Uncle [T] made me watch him have a shower”. The Mother said she telephoned the Department of Community Services and made a report. Dr R recorded that the Mother reported the incident to the sexual assault clinic about 18 months after it was alleged to have occurred.
Dr R recorded that he was told by the Mother “[the child] was happy with the visits [with her Father] until the age of 7. From the age of 7 she didn’t want to go. She didn’t want to go to Sydney to be with him. I kept pushing her and said you’re going.”
Until October 2004 the child had contact with Father up to seven days at a time.
In November 2004 the Father resumed living in Australia on a permanent basis. He first lived with a friend at [B] in Sydney. He contended that from late November 2004 until March 2005 he spent time with the child twice in December 2004 for day visits and then in January 2005 spent one week with the child during the Christmas school holiday period.
The Mother contended that in about January 2005 she agreed to allow the Father to have a period of contact for six days and for the Father to take the child to Melbourne.
In his report Dr R said:
Then at the end of 2004 and early 2005 [the mother] said she forced [the child] to go to Melbourne for a week with her father. “She went and it was disastrous. I had hoped it would help to bond them. She stayed in a granny flat in Melbourne which defeated the purpose. He brought her home on day 4. It wasn’t disastrous according to [the father]. [The child] felt that he just worked when he should have spent time with her.
The Father contended that in February and March 2005 he spent time with the child on only two occasions for day visits only.
The Mother contended that in about February 2005 the child again started to appear anxious and upset “whenever the question of contact came up”. The Mother contended that the child’s symptoms included insomnia and she saw a counsellor and also a pharmacist and medical practitioner and one of the medical practitioners prescribed Vallergon.

On 9 February 2005 the Mother’s solicitors wrote to the child’s uncle in relation to the abuse allegation. In the letter the solicitors stated that they were instructed that the child made a disclosure about the child’s uncle’s conduct which would suggest that there was an unacceptable risk to the child if she were to “have any future dealings with you”. This related to the incident that may have occurred before 2002. There was no adequate explanation given as to why this letter was written perhaps two or three years after the alleged incident.
Counsel for the Independent Child Lawyer asked Dr R whether the incident appeared to be real in the child’s mind and Dr R replied “[a]lthough it is difficult for me to assess but she does appear to have accepted that something happened with her Uncle although it wasn’t clear that this was a very significant event for her although it does appear that she feels that it is a significant event for others particularly for her mother”. The letter of 9 February 2005 was obviously written pursuant to instructions of the Mother.
In March 2005 the Father commenced residing at O, a suburb of W, so as to be close to where the Mother and the child lived. The Mother and the child also lived in O.
The Father contended that the Mother then refused to allow him to have any overnight contact with the child. The Father asserted that his contact with the child involved her staying with him an average of one day per week usually in the afternoon and into the evening. This took place when the Mother was at work. On a number of occasions the Mother worked until 11.00 pm and despite the Father’s requests to allow the child to stay overnight the Mother attended the Father’s premises and collected the child after 11.00 pm when the child was asleep. The Father contended that to his observation the child did not wish to be moved when she was asleep and had indicated to the Father that she wanted to stay overnight. However, notwithstanding this the Mother collected the child and took her from the Father’s home. On numerous occasions the Father requested the Mother to allow him to have overnight contact with the child and proposed that the child sleep in his bedroom and he sleep in the lounge room but the Mother refused these requests.
The Father contended, and I accept, that contact continued at his unit on the basis of an average of one day per week until November 2005 when the Mother refused to allow any further contact.
On 13 September 2005 the Father’s solicitors wrote to the Mother making a proposal for contact.
The Mother contended that between about January and November 2005 the Father had contact with the child “fairly sporadically” and that she would estimate that it was on about 15 occasions.
The Mother contended that in early November 2005 she observed the child to be particularly anxious and upset and on her instructions on 8 November 2005 her solicitors wrote to the solicitors for the Father and said that the Mother’s instructions were that the child “remains opposed to the suggestion that she have contact with her Father”. It was also said “Your client also telephones our client at work to discuss the question of contact and other issues. Our client does not wish to engage with your client and you should tell him to cease telephoning her at work”.
The Mother contended that from about “that time”, referring I believe to November 2005, the child “has refused all of the arrangements”.
The Father contended that on about 10 November 2005 he received a telephone call from the Mother and she left a message on his mobile phone “[…], it’s not a good idea for you to collect [the child] this afternoon from school. Give me a call back to make sure you’ve got this message”. The Father then contacted the Mother and said to her “It’s fine I won’t pick her up from school this afternoon. I am off this Saturday though, I’ll pick her up on Saturday and she can be with me for the day”. The Mother said “It’s not a good idea, [the child] detests being with you, she doesn’t want to see you, it’s all very upsetting for her. It would be a good idea for you not to see her for a time”. The Father said “What are you talking about? She enjoys her stay with me what are you doing?”. The Mother said “[the child] doesn’t want to be with you it’s too much pressure for her, it would be good if you just let her alone for a while”. The Father said “I’m not happy with this. That’s not a good idea. I’ll call you back tomorrow with my availability for contact over the next week”. The Father then telephoned the Mother on 11 November 2005 but was unsuccessful in being able to speak to her. Then on the evening of 11 November 2005 the Father again telephoned the Mother and they had a conversation during which he said “What is going on […]? Are you trying to stop me seeing my daughter?”. The Mother said “No but my daughter does not want to see you”. The Father said “I don’t believe that, can I speak to [the child]”. The Mother said “Only if [the child] wants to speak to you”. The Father said that he then heard the Mother say to the child “[…] do you want to speak to your father?”, then the Mother said “[The child] doesn’t want to speak to you”. The Father said “I am very unhappy with this do you want to take my roster availabilities for me to see [the child]?”. The Mother said “Give your availabilities to your solicitor and then forward them to my solicitor”.
On 25 November 2005 the solicitors for the Mother wrote to the solicitors for the Father and identified as the Mother’s concerns that the Father had threatened to remove the child permanently from the Mother and further, that the Father was harassing the Mother by persistently telephoning her. Further, on one occasion the Father asked to speak with the child but the child refused.
The Mother also contended that in the first half of 2005 she sought advice from a number of “counsellors and other child experts”. She spoke with a counsellor, a psychologist and also a person at a sexual assault clinic and she contended that ultimately she was advised not to force the child to go on contact because of the child’s level of anxiety and that she has not forced any face to face contact between the Father and the child since 3 November 2005.
The Mother contended that she “continued to have conversations” with the child about her attitude to contact and on each occasion the child consistently said “I don’t want to see him, I don’t love him, I don’t want to go” and “I hate him”.
In November 2005 the Mother denied the Father any contact with the child. The Mother contended that the child said that she hated the Father.
On 28 November 2005 an application was filed on behalf of the Father in the Local Court at W in which he sought that he have contact with the child each Friday from 6.00 pm until the following Saturday at 6.00 pm and half of all school holidays. The Father swore an affidavit on 21 November 2005.
On 15 December 2005 interim parenting orders were made by consent in the Local Court at W. These orders provided that the child reside with the Mother and that she have sole parental responsibility for the child’s day to day care, welfare and development during the times the child was with the Mother and the Father have parental responsibility during periods the child was with him. The orders provided that the Father have “personal contact” at times agreed upon between the parties from time to time and also on 17 December 2005 from 9.00 am until 11.00 am; on 23 December 2005 from 2.30 pm until 5.30 pm; on 27 December 2005 from 3.00 pm until 6.00 pm; on 6 January 2006 from 1.30 pm until 5.30 pm; on 14 January 2006 from 9.00 am until 1.00 pm and thereafter on alternate Fridays and Saturdays from 9.00 am until 1.00 pm on Saturdays and from 1.30 pm until 5.30 pm on Fridays. The orders provided that in the event that the child indicated to the Father that she wished to go home early during any contact period the Father would promptly return the child to the Mother. The orders provided that the contact would commence and conclude at Centrecare in W. An order was made that both parties be restrained from discussing the proceedings with the child or with another person in the presence or hearing of the child. An order was made that the parties attend confidential counselling at the Family Court. An order was also made that the proceedings in the Local Court be transferred to the Family Court. It was noted by the Magistrate that the Mother agreed that she would not telephone the child during any periods of contact except in the case of an emergency.
The Father said, and I accept, that since these orders were made he had not had any physical contact with the child.
On 30 January 2006 the parties attended a Case Assessment Conference.
An appointment was made for Confidential mediation on 7 February 2006. However, the Mother advised the counsellor that child would not attend and the mediation was cancelled.
The proceedings were before the Local Court on 10 February 2006.
The parents did attend mediation on 13 and 28 February 2006.
On 10 March 2006 a response was filed on behalf of the Mother in which she sought that the application by the Father be dismissed. In support of this response, the Mother swore an affidavit on 14 December 2005.
On 13 March 2006 the proceedings were before the Family Court at W and adjourned to 10 April 2006. On 10 April 2006 the proceedings were adjourned to 8 May 2006.
On 12 April 2006 the Mother executed a form of consent for the applications to be heard in accordance with Practice Direction No. 2 of 2004, being what was called the Children’s Cases Program. Shortly thereafter, consistent with her obligations, the Mother completed an answer to questionnaire. In this document the Mother contended that she was working six hours per day between 9.00 am and 3.00 pm on Monday, Tuesday, Wednesday and Thursday of each week and each alternate Saturday. She contended that the child had received no contact by mail from the Father even on Christmas and Easter. Further, that the child had a large social network and close friendships. She also said that the Father was paying $530 per month in respect of a loan which he obtained to enable the Mother to acquire a motor vehicle.
On 21 April 2006 the Independent Children’s Lawyer wrote to the Father’s solicitors reporting an interview with child.
On 8 May 2006, when the proceedings were before a Registrar, an order was made that the applications be listed for final hearing before a Judge in accordance with Practice Direction No. 2 of 2004.
On behalf of the Father an affidavit was sworn on 19 July 2006 by his solicitor, Peter Chodat. Mr Chodat said that on 27 June 2006 he had a telephone conversation with Mrs B, who is the maternal grandmother, and Mrs B advised him that the Mother and the child had “moved to [C] to live”. Mr Chodat asked when the Mother left and Mrs B said “about three weeks ago”. Mr Chodat gave evidence about a conversation he then had with the Mother’s solicitor.
On 30 June 2006 Mr Chodat telephoned the Mother and had a conversation with her. During the conversation the Mother said “I am getting more money working out here and decided to accept the job offer”.
On 30 June 2006 the Father’ solicitor advised him that the Mother and the child had moved from the I to C.
In answer to some questions I asked the Mother contended that in June 2006 she made an application for employment in C and was successful and without the knowledge or consent of the Father she left W and commenced to reside at C.
On 30 June 2006 the solicitors for the Father wrote to the Mother and requested that she return to I. At this time, the Father had the benefit of the orders which were made by consent on 15 December 2005.
In his oral evidence Dr R said:
I’m sure her individual circumstances may well have enhanced by her move to the country, however moving to the country really does preclude any sort of substantial relationship between the child and the other parent. My understanding was that that relationship between the father and the child, was, before the relationship broke down and the move to [C] was actually becoming stronger and I did wonder whether the move to [C] was a response to the mother’s fear or anxiety about [the child] becoming overly close to the father.
On 6 July 2005 Mr Chodat wrote to the solicitors for the Mother and requested advice as a matter of urgency as to whether the Mother intended to return to I. By facsimile transmission dated 14 July 2006 the solicitors for the Mother wrote to the solicitors for the Father and advised “Our client has no present intention of returning to the [I] area”.
On 19 July 2006 an application in a case was filed on behalf of the Father and he sought that the Mother immediately return the child to the I region. The Father swore an affidavit on 14 July 2006 in support of the application.
The Mother contended that when she was living in W she was suffering from financial strain. Her rent kept increasing. She was receiving about $575 net per week and was paying $250 per week for rent. She contended that this did not leave much money over for food, tuition, sport and living expenses for herself and the child. She contended that she realised in late 2005 that she had to do something as she was finding it difficult to make ends meet. She contended that she applied for two positions at W Hospital but unfortunately she was not successful in obtaining either of the positions. She decided to think about going into management in the hospital as it would be Monday to Friday with no weekend or evening work and no night shifts and a substantially higher income than she was then taking home. She contended that there were no suitable positions available in W and she was encouraged and supported by the medical directors of the W medical Department to apply to smaller country hospitals as the cost of living is lower in those areas and the income would be substantially higher than she was able to earn in W. The Mother contended that she was successful in her application to C Hospital and hoped that the position would become a permanent one. When she obtained the position with the C Health Service she was told it was a temporary contract but it was implied to her that the position would likely become a permanent position. She received a substantially higher pay rate and was able to work Monday to Friday from 8.00 am to 4.00 pm with no shift work, night work or weekend work. As well, she was able to obtain in C suitable rental accommodation.
The matter was listed for 28 July 2006, however the date was vacated as a Judge was unavailable.
On 8 September 2006 I made the following orders:
1.      The hearing of this case proceed to finality as a Children’s Cases Program case pursuant to the Practice Direction No. 2 of 2004.
2. Pursuant to s 190(1) of the Evidence Act 1995 (Cth) the provisions of that Act referred to in s 190(1)(a), (b) and (c) are dispensed with to the extent required to permit the admission of all material placed before the Court as evidence, subject to the application of proper weight, and to conduct the procedure of the hearing as envisaged in the Practice Direction No. 2 of 2004. In making this order I do so on the ground referred to in 190 (3) (b) of the Evidence Act. I have taken into account the matters referred to in s 190 (4). I also take into account the aims of the Children’s Cases Program.
3.      The time for the filing of any appeal against orders made during the course of the hearing, as prescribed by the Rules of Court not commence to run until the making of the final order in the proceedings or such other time as the Court may order.
4.      Each party during the hearing make full and frank disclosure of any fact which should be brought to the attention of the Court having regard to the best interests of a child the subject of the proceedings.
5.      No affidavit be prepared or filed for a party to the proceedings without the leave of the Court.
6.      No witness statement be served on a party without the leave of the Court.
7.      Any affidavit filed and served with the leave of the Court only address the specific issues of fact permitted by the Court order granting leave to file the said affidavit.
8.      Any witness statement served with the leave of the Court only address the specific issues of fact permitted by the Court order granting leave to serve the said witness statement.
9.      Any affidavit filed pursuant to these orders be in a format where each “specific issue of fact” appears as a separate heading and the facts the witness wishes to rely upon in relation to that issue appear immediately thereunder.
10.     Any witness statement served pursuant to these orders be in a format where each “specific issue of fact” about which the statement is permitted to provide information, appear as a separate heading and the facts the witness wishes to rely upon in relation to that issue appear immediately thereunder.
11.     Any order requiring service of any document during the hearing, unless otherwise directed, will require service pursuant to the Rules of Court.
12.     No party issue a subpoena in the case without first obtaining the leave of the Court.
13.     Each party and/or their legal representatives and/or the Independent Children’s Lawyer is to ensure that the Case Co-ordinator is advised of any event or circumstance which is likely to seriously impact upon the timely progress of the case through the Court.
14. Pursuant to s 62G Family Law Act 1975 (Cth) a Family Consultant prepare a report such report to consider any views expressed by the child and any influences on these views or wishes, the reasons the child has expressed those views and wishes and the practical difficulty and expense of the child spending time with and communicating with each parent.
15.     The Mother file and serve by 4.00 pm on 21 September 2006 an Amended Application.
16.     The Mother file and serve by 4.00 pm on 21 September 2006 an amended Answer to Questionnaire.
17.     Each party be restrained from saying anything to or in the presence of the child or allowing any other person to say anything to or in the presence of the child which is in anyway derogatory of the other parent.
18.     The Father have reasonable communication with the child [the child] born on 4 October 1995 to include:
25.1Forwarding cards, letters and gifts to the child but with no greater frequency than once per week.
25.2By phone between 10.00 am to 10.30 am each Saturday morning to commence 7 October 2006.
25.3In the event the Father cannot communicate by phone between 10.00 am and 10.30 am of a Saturday he will forward to the Mother’s mobile phone a SMS message to advise of a time that he will phone the child as close as possible to the original time.
26.     The Mother shall ensure that all cards, letters and gifts are delivered to the child and use her best endeavours to ensure the child reads them.
27.     The parties have liberty to restore the matter by arrangement with my Associate.
28.     The trial be adjourned part heard to a date to be fixed.
On the first day of the hearing the Mother gave evidence that it is important that the child have a relationship with the Father and that she is encouraging child to see the Father. On the first day of the hearing the Mother gave evidence that she moved to Co because she had been in the same position for 10 years and her father and grandfather reside in the area.
On 8 September 2006 the Father and the child had 10 to 15 minute telephone conversation initiated by Mother. Dr R reported:
On one occasion after the court case in 2006 he had “a nice normal loving telephone” call with [the child] on the 8^th of September. At that time he felt hopeful that their relationship would be resurrected. However, 4 weeks later the relationship had changed again. “I would ring her and then he would hear nothing on the phone, then without any warning, [the child] would make a statement such as, ‘I never want to see you again’. I would then call back and [the mother] would answer.”

On 4 October 2006 an amended response was filed on behalf of the Mother in which she sought the following orders:
1. The respondent mother do all acts and things that may be necessary so as to enable any letters, cards or gifts sent by the applicant father to the parties daughter […] to be given to [the child] provided such cards, letters or gifts have no greater frequency than once per week.
2. The respondent mother do all things so as to enable the parties daughter […] to receive a telephone call from the applicant father each Saturday between 10.00 am and 10.30 am.
On 4 October 2006 the Mother completed a further answer to a questionnaire and she stated that she was residing in C and working with the C Health Service up to 40 hours per week on Monday, Tuesday, Wednesday, Thursday and Friday of each week. The Mother also said that the child had received two cards and presents from the Father “over the last two weeks” and that the child will also be able to receive a phone call each week starting on October the 7^th. She also said that the child had built up a close network with friends at school and is still close to some of her friends in W.
On 7 October 2006, in accordance with the orders of 8 September 2006, the Father telephoned the child. The Mother advised the Father that the child did not wish to speak with him. Between 7 and 21 October 2006 the Father continued, but unsuccessfully, to attempt to speak with the child. It will be observed that on 4 October 2006 the Mother filed an amended response in which she sought an order that she do all things so as to enable the child to receive a telephone call from the Father each Saturday between 10.00 am and 10.30 am.
On 26 October 2006 I made the following order:
1. Until further order the Mother be restrained from taking the child to any appointment or consultation with a psychiatrist or psychologist without the consent of the Independent Child Lawyer.
The Father contended that since the orders made on 26 October 2006 he has not had any meaningful telephone conversation with the child other than the conversation he had on 8 September 2006. However he has sent by registered mail 25 cards/letters which included gifts and most of these were returned unopened. He has only received 12 signed registered confirmations and 10 were returned unopened/unclaimed. He received no information of the other three. None of the gifts he sent have been returned. The mail which was returned unopened was put into evidence. It will be observed that on 4 October 2006 the Mother filed an amended response in which she sought an order that she do all acts and things that may be necessary so as to enable any letters, cards or gifts sent by the Father to the child to be given to the child provided such cards, letters or gifts have no greater frequency than once per week.
Pausing there, counsel for the Independent Child Lawyer put to Dr R that the child responds to mail sent by the Father by refusing to open it, that she refuses phone calls from the Father and whether having regard to those matters his anxiety in relation to the child’s state was heightened. Dr R replied that he believes that the child is finding herself extremely stressed about the whole issue around what has been happening between the Mother and the Father and he think she finds herself in a dilemma about whether she would be comfortably relaxed with the father or whether she might feel as though she is then disloyal to the Mother.
I received a Family Report dated 1 November 2006 prepared by Mr M, Family Consultant. In the report Ms M said:
2.      [The child] has been seen recently by a psychiatrist, [Dr T], who prescribed Prozac for anxiety and obsessional compulsive disorder. [The mother] has sought assistance of a psychiatrist as [the child] has told her that she recurring troubling thoughts about God, death, killing herself and killing her mother. [The mother] said that [the child] had also had episodes of insomnia and being, what her mother called, “shut down”. According to [the mother], these thoughts and behaviours have lessened since [the child] has been taking Prozac.
3.      It is difficult to interpret any comments that [the child] made about her father and her mother without a full assessment of her mental health.
4.      I spoke with [Dr T] who said that she is very supportive of the family being assessed by a child and family psychiatrist.
On 2 November 2006 I released a copy of the Family Report. What Ms M said about the child was very troublesome.
On 15 November 2006 the hearing continued however the Mother did not attend because she was at a work seminar. However in the Mother’s absence, the Family Report was discussed. The Family Consultant recommended that an expert family psychiatrist be appointed to prepare a report. It was recommended that Dr W would be an appropriate court expert and the matter was adjourned to 23 November 2005.
On 23 November 2006 I made the following orders:
1.      [Dr R], Child and Family Psychiatrist be appointed as a Court Expert.
2. [Dr R] prepare a family report in which he considers the matters that are required to be considered in accordance with the provisions of Part VII of the Family Law Act and importantly the issues identified by the Family Consultant in her report of 1 November 2006. It is expected that [Dr R] will undertake a family assessment and in the course of doing so review the diagnosis made of the child, the treatment that she has been given, what might be contributing to the child’s mental state and how it may be resolved.
3.      [Dr R] prepare the report as a matter of urgency.
4.      [Dr R] may confer with [Ms M], the Family Consultant, and [Dr T], Psychiatrist.
5.      Leave is granted to the Independent Child Lawyer to forthwith issue a subpoena to produce documents to [Dr T], [Dr C] and [Dr E] and the Independent Child Lawyer thereafter be at liberty to take photocopies of any documents produced in response to subpoena for the purposes of providing same to [Dr R].
6.      [Dr R] be granted liberty to apply.
7.      Liberty to apply be granted to all parties.
On 23 November 2006 it was agreed that Dr R be appointed as the court expert because Dr W was not available until February 2007. Dr R was available to see the parties and the child in December 2006 so as to complete a report as quickly as possible. Dr R believed that he could complete a report by December and have it available before Christmas.
Appointments were then made by the Independent Child Lawyer for the parties to be interviewed by the court expert on 14 and 18 December 2006.
On 14 December 2006 the Father was advised that the Mother contended that the child could not attend interviews with Dr R because she was attending a speech award and doing singing and dancing. The interviews were then scheduled for 25 and 30 January 2007. The Father contended, and I accept, that he was devastated by the news that the Mother cancelled the appointments with Dr R however, he agreed to the appointments being rescheduled for 25 and 30 January 2007. I accept that the Father was upset, amongst other things, because the appointment of Dr R as the court expert was on the basis that he could complete a report before Christmas 2006.
The Mother contended that on 2 January 2007 her supervisor requested a meeting with her and it was revealed that the prior Manager in the mother’s position was likely to return to service on 6 February 2007. The Mother said that she had three weeks annual leave from 8 January 2007 and she used that time to look for other employment. As a result, she searched the New South Wales Health intranet and the only position she could locate for a permanent health managerial position which afforded regular hours, as well as a high rate of pay and employment security, was at the Medical Department of the K Hospital. She contended that this was ideal for her as she had 12 years experience in emergency medicine. She contended that she made enquiries of the availability of employment in W and there were no permanent positions available. She contended that on 22 January 2007 she was offered a position at the K Hospital and that she is now employed as a health Manager at the Medical Department of the K Hospital. She contended the position is contracted as permanent and she has been working in the position since February 2007. Her income is almost double what she was earning at W Hospital and she contends that she now has a fortnightly income of $2,000 net. She plans to remain living in K with the child for the foreseeable future. The child is currently enrolled at J Primary School in Year 6 at K and the Mother contended that the child is excelling in her grades. The child is a member of a local swimming club and has also joined the Girl Guides. The Mother currently lives in rented accommodation and pays $360 per fortnight. She intends, if she remains in K, to purchase a home.
On 24 January 2007 the Mother telephoned the Father and advised that she was moving from C to K. The Mother said “The job that I got in [C] last year was only temporary the person’s place that I took had been charged with DUI and had not been able to drive to [C]. She’s now got her license back and has taken her position back, I don’t have a job. I’ve been searching on the internet for other jobs and other hospitals and I have found a job at [K]. I am moving up there with [the child] are you okay with that?” and the Father said “I’m not prepared to give blessing or consent to your move I can’t believe that you took the job at [C] in the first place and now you want to move to [K]”. The Mother should have informed the Father on or shortly after 2 January 2007 that she intended to leave C.
Dr R conducted interviews on 25 and 30 January 2007. In his report of 25 February 2007 he said:
[The mother] and [child] were seen together. They appeared to be happy and relaxed with each other. There was clearly a very close bond between the mother and daughter. [The child] said that she is very busy with swimming and school. [The mother] said that she enjoys socializing at the swimming club and spending time with [the child] by reading and going to movies. She said that she had a full understanding of what [the child] wanted. [The child] said, “I told mum everything. She understands and tries to help me. I don’t want to see him. I don’t want any contact with him. I fear he might come and get me. He might come and take me or hit me.” [The child] said, “I try to encourage her. I feel she will come around in a couple of years time. The last couple of years I’ve tried to push her. It’s hard to do that. I’m not happy to force her out the door. I’ve tried to fix this but I also respect her wishes.” She took [the child] to see a Psychologist who said that there was nothing wrong with her. “[The father] doesn’t have a good grasp of what is going on. He believes she should be told what to do. He needs to show a bit of empathy and respect.” [The child] continued, “I hope this is the last time.” [The child] explained that [the father] was angry when he heard about the sexual abuse allegation. “He refused to believe it. He spoke to [Dr C].”
[The child] was seen with her father. [The child] reluctantly came into the room where her father was sitting. She looked sad and sat down quietly. There initially was silence. I asked how long it had been since they had seen each other. [The child] answered, “It had been a long time.” I asked them what they liked doing when they saw each other. [the father] said, “We went to the park. We played chasings, got ice creams, visited the zoo, did homework, movies, videos and the beach.” I asked [the child] what she enjoyed doing the most? She said, “No. I don’t know.” She looked a little fragile and upset. [The father] said, “Why do you not want to see me?” [The child] then said, “You never saw my soccer game. You never appreciated me. You didn’t appreciate my singing or dancing or spend time with me. Half my childhood is over.” She became tearful at this time. [The father] said, “Do you remember me taking you dancing?” [The child] said, “I don’t remember anything.” [the father] said, “I did spend time with you.” [The child] said, “You worked and then you dropped me back at mums. Mum spends time with me.” [The father] said, “Do you remember I used to tell you, you were the best. I used to make you giggle and laugh with me.” [The child] said, “No, never. You were always on the mobile phone when I was in the park.” The father remained remarkably composed and didn’t become excessively upset or angry with [the child]. He persisted and tried to reach her. [The child] continued, “I needed you to respect me and not put your work in front of me. You would do the laundry and we didn’t have time to do anything. There was only 5 minutes left. You called me ‘selfish’.” [The father] said that there were some days when he had to use the mobile phone and had to do other things like the washing and he may have talked sternly with her on occasions. He asked her, “Why didn’t you talk to me about it?” [The child] said, “I was frightened you would get angry quickly. You would yell at me when I didn’t do anything wrong. I don’t want to go through this anymore. You hurt my feelings a lot. I hate you for being cruel. You never said sorry for me for doing anything wrong. Can I go now?” [The father] paused and thought carefully before he spoke. He said, “[The child] from the time you were born I loved you and looked after you. No matter how you feel I always love you.” [The child] said, “You were overseas for 4 years. It doesn’t change anything.” Despite the difficulty [the father] remained composed. [The child] stood up and walked out of the room.
[The parents] were seen together. They were both rather cautious. [The father] was still upset and quiet after the interview with [the child]. [The mother] opened by saying that she believed [the father] knew how she felt. She had concerns that the court process was damaging [the child]. [The father] said, “I feel sorry for you. There are no winners here. [The mother] doesn’t want to agree to anything.” [The mother] said, “We don’t see eye to eye. I can’t blackmail [the child] anymore. She’s very entrenched. I think you should back off a bit. The phone’s not working. She was upset about the registered post.” [The father] said, “Well I don’t trust you. Let me see her. She will cry for 5 minutes and then we’ll have a great time. You listen too much to her complaints. You have a responsibility to force her out the door. How can you do this? What you’re doing is wrong. She complained that I lived in [Asia]. Whatever I say is wrong.” The interview then came to an end.
[The father] was seen alone after [the mother] left. [The father] said that he believed that [the child] had been brainwashed against him. “I don’t know what else to say. She’s so brainwashed. [The child] will cry for a bit then she will be fine.”
I note that the Mother said that the Father needs to show a bit of empathy and respect. The first round of interviews took place the day after the Mother told the Father she was moving to K.
On 7 February 2007 an amended application for final orders was filed on behalf of the Father. He sought that the child live with him and spend time with the Mother each four weeks from 5.00 pm Friday until 6.00 pm Sunday and half of the school holidays.
There was correspondence between the parties solicitors on 1 and 15 February 2007 in relation to the Mother having moved from C to K.
On 22 February 2007 I made the following order:
1. Each of the parties pay one half of the costs of the Independent Expert.
Dr R’s report is dated 25 February 2007 and he made the following recommendations:
1.      I recommend that [the child] continue to reside with her mother with whom she has always lived and who has been her security and has cared for her well. The major disadvantage is that I believe that [the mother] and [the child] are likely to have major difficulties during [the child’s] adolescence as she attempts to become more emotionally independent.
2.      I believe it would be in [the child’s] best interest to re-establish regular contact with the father. The dilemma now is that [the child] believes in her own mind that seeing her father is not in her best interest. [The mother] says she wants [the child] to have a relationship with the father however she cannot see herself going against her daughters expressed wishes. I believe [the mother] may be subtly threatened by the potential of a close relationship between [the child] and [the father]. [The mother] has allowed the sexual abuse issue to become a compounding factor which has contributed to the stress. In order to try and establish contact there would need to be a concerted effort by [her grandmother], her mother and perhaps [the father] and [his sister]. I would suggest that the 4 adults would need to meet with a therapist or facilitator in order to arrange how contact could occur and there would be a clear message that it was fully supported by all adults involved.
3.      I recommend that neither parent denigrate the other parent in front of the child. I believe it’s crucial for the mother to realize that if the relationship breaks down and it is lost that this is likely to have an extremely detrimental affect on the child in the long term. She has had a close loving relationship with the father. The father provides an important balance in her life. I believe there is a serious risk that as a teenager, [the child] is likely to become depressed and anxious. If she doesn’t re-establish her relationship with her father in the foreseeable future then the likelihood is that the relationship will be lost indefinitely. [The child] believes that she has experienced some adverse sexual event which is tied up with her contact with her father. A relationship with her father would not only add balance to her life but also would facilitate her separation and individuation as an adolescent and help her adolescent identity formation. If the child remains primarily focused on the mother I believe that she’ll have enormous difficulties helping her become a healthy adolescent and ultimately achieve a healthy transition to adulthood.
4.      I recommend that a counsellor assist [the mother] in finding ways of re-establishing their relationship and maintaining the relationship between the child and the father.
5.      I recommend that the father get some counselling support in order to help him cope with the difficult situation that he is confronting.
6.      I recommend that the extended family members on both sides of the family co-operate in order to support [the child] re-establishing some contact with the father. Initially, the contact could take place perhaps at a family setting and not in an unfamiliar or cold neutral environment. The family members involved would need to understand the dynamics and issues at hand and would need to be able to allow the contact to proceed. Initially, the contact should be brief, perhaps for an hour or two and then progressively increased to a regular arrangement taking into account the logistics of travelling.
7.      The move to [C] and then to [K] appear to be also quite destabilizing changes in [the child’s] life. It is not clear as to whether these are attempts by the mother to maintain sole influence over [the child’s] life. It’s important for the mother to look beyond what the child is saying and find ways to help [the child] re-establish her relationship with her father. I believe it would be in [the child’s] best interest to be living closer to [W] rather than starting a fresh in the far north coast.
On 28 March 2007 I made the following orders:
1.      The hearing be adjourned to 3 and 4 May 2007.
2.      Each of the Father and the Mother file and serve within 21 days an affidavit setting out his/her evidence in chief in relation to their proposals as discussed.
3.      It be NOTED that each of the Father and Mother will have available at the hearing the extended family members who are identified in the report of [Dr R].
4.      It be NOTED that with the assistance of the Independent Child Lawyer and [Dr R] the Father and the Mother propose to forthwith commence to undertake and receive the counselling support and professional assistance identified in the report of [Dr R].

I am required to consider the likely effect of any changes in the circumstances of the child including the likely effect on the child of any separation from either parent or any other child or other person including any grandparent or other relative of the child, with whom the child has been living. This is an important matter.
I am of the view that there will continue to be difficulties if the Mother continues to reside in K and the Father continues to reside in W. If the child continues to reside in K with the Mother and the Father resides in W I am satisfied that there will be little opportunity for the child to have a meaningful relationship with both parents and this is not in the best interests of the child. As well, there are risks for the child having regard to the nature of her relationship with the Mother.
If both parents lived in W and the child lived with the Mother then there is an opportunity for the child to have a meaningful relationship with both parents and as well, the risks for the child having regard to the nature of her relationship with the Mother would be lessened.
Also if the child resided in W then this would be disruptive to the child. Dr R said, and I accept, that it was disruptive to the child to make the move to C and then another move to K. He agreed that this is the case every time a child moves from one location to another. Thus if the child moved back to W with or without the Mother then this move would be disruptive. However Dr R said that the child seemed to be a fairly resilient young girl who was able to make a change and cope but she certainly missed her friends at W and that she had been very happy there, and that she could make adjustments if she needed to. I have no doubt that if there was to be a further move for the child then it should be back to W or at least somewhere that is within reasonable proximity of where the Father resides.
If the child resided in W with the Father and the Mother resided in K and the time the child spent with the Mother was infrequent then the effect on the child of separation from the Mother would be significant.
However, in determining the weight to be attached to this important matter I take into account the following. The solicitor for the Mother asked Dr R what his view was if the Mother chose not to come back to W and the child lived with the Father. Dr R said that he thinks that the child would find leaving the Mother extremely difficult at first and that she would worry a great deal about the Mother because of the closeness of their relationship. He said that there would be period of reverse sort of concern about the Mother. He went on to say that on the other hand, the Father is quite capable of caring for the child and that there is a solid base to their relationship and that the child would make that adjustment, particularly given the fact that she is going back to W which is familiar territory to her. He said “I think that she would make that adjustment. But I think that that would be still a rather difficult change for the child”.
I am required to consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the right of the child to maintain personal relations and direct contact with both parents on a regular basis. This is an important matter.
I am of the view that if the Mother continues to reside in K and the Father continues to reside in W there will be practical difficulties and expense as a result of the child spending time with and communicating with a parent. I am also of the view that this difficulty or expense will substantially effect the right of the child to maintain personal relations and direct contact with both parents on a regular basis.
If the child resides in K with the Mother and the Father resides in W I am of the view that there will be practical difficulty and expense of the child spending time with and communicating with the Father and that difficulty or expense will substantially effect the right of the child to maintain personal relations and direct contact with the Father on a regular basis.
If the child resides in W with the Father and the Mother continues to reside in K I am of the view that there will be practical difficulty and expense of the child spending time with and communicating with the Mother and that difficulty or expense will effect the right of the child to maintain personal relations and direct contact with the Mother on a regular basis.
However, if the child resides in W with the Father and the Mother continues to reside in K I am of the view that practical difficulty and expense of the child spending time with and communicating with each parent will not be as significant as it would be if the child resides in K with the Mother and the Father resides in W. I have more confidence in the Father to ensure the right of the child to maintain personal relations and direct contact with the Mother than I do in the Mother to ensure the right of the child to maintain personal relations and direct contact with the Father.
The arrangement that would cause the least practical difficulty and expense of the child spending time with and communicating with the both parents and thus cause the least effect on the right of the child to maintain personal relations and direct contact with both parents on a regular basis would be if the Mother and the child also resided in W.
In answer to questions from the solicitor for the Mother, Dr R made it very clear that it would be desirable for the parties to reside not too far away from each other. He said that anywhere that requires several hours travelling whether it is, three, six or seven hours, would create enormous difficulties and so obviously the closer the location the better.
I am required to consider the capacity of each of the parents, and any other person including any grandparent or other relative, to provide for the needs of the child. This includes emotional and intellectual needs. I consider this to be an important matter.
I am satisfied that the Mother is able to provide for the needs of the child including intellectual needs.
I am satisfied that the Father is able to provide for the needs of the child, including emotional and intellectual needs.
I have concerns about the capacity of the Mother to provide for the emotional needs of the child. Notwithstanding what the Mother contends I do not accept that she has done all that she could to ensure that the child had a meaningful relationship with the Father.
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of the child and of either of the parents and any other characteristics of the child that I think are relevant. This is an important matter and I adopt what Dr R said about the child.
I am required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain the child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated. This is an important matter.
I am of the opinion that the Mother has failed to fulfil her responsibilities as a parent and that she has failed to take the opportunity to enable the Father to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child.
I am required to consider any family violence involving the child or a member of the child's family. I am also required to consider any family violence order that applies to the child or a member of the child's family if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 of the Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family. In considering what order to make I must, to the extent that it is possible to do so consistently with the best interests of the child being the paramount consideration, ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1). I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2). In my view, this matter is not relevant.
I am required to consider 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. There may be further proceedings whatever orders I make.
I am required to consider any other fact or circumstance that I think is relevant. There is nothing more I need to add.

Conclusion – parenting

When making a parenting order I must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. However the presumption does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
In this case I am not satisfied that there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Thus, I must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
I then have to consider if the presumption has been rebutted. There are important matters such as the stated views of the child, the conflict and lack of communication between the parents and the difficulties for the Father to spend time and communicate with the child. However, notwithstanding these matters I am not satisfied that it is in the best interests of the child that the presumption be rebutted.
As a result, I am satisfied that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
As I am satisfied that the presumption of equal shared parental responsibility does apply I then have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent.
In this case there are a number of possible outcomes. The child resides with the Mother in K and the Father resides in W. The child resides with the Mother in W and the Father resides in W. The child resides with the Father in W and the Mother resides in K. There are other possibilities such as the Father resides in K or one or both parents reside in Sydney. However, as to the various regimes neither parent seeks an equal time regime. The Father does not seek such a regime even if the Mother resides in W. In any event, such a regime would not be reasonably practicable if the parents do not live in close proximity to each other.
As I am satisfied that an order not be made for the child to spend equal time with each parent I then have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent.
Section 65DAA(3) sets out what is meant by substantial and significant time. It provides that for the purposes of s 65DAA(2) a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both (emphasis mine) days that fall on weekends and holidays and time allows the parent to be involved in the child’s daily routine and occasions and events that are of special significance to the child and occasions and events that are of special significance to the parent.
In this case I am satisfied that it would be in the best interests of the child to spend substantial and significant time with each parent. However again the distance that the parents may live apart from each other does not make it reasonably practical.
If the Mother continues to reside in K and the Father continues to reside in W it would not be reasonably practicable for the child to spend substantial and significant time with each parent. If the child resides in K with the Mother and the Father resides in W it would not be reasonably practicable for the child to spend substantial and significant time with the Father. If the child resides in W with the Father and the Mother continues to reside in K it would not be reasonably practicable for the child to spend substantial and significant time with the Mother.
If both parents reside in W it would be reasonably practicable for the child to spend substantial and significant time with each parent. Both parents would be able to participate in various interests and commitments of the child as contemplated by the orders of the Independent Child Lawyer. However, the Father accepts that he would not spend substantial and significant time with the child until 2008.
There are a number of important matters that support what the Mother seeks and they include that the Mother has been the primary carer, the stated views of the child, the close relationship of the child and the Mother and the effect on the child of separation from the Mother. As well, if the Mother had to relocate to W she would be upset and this may have an effect on her relationship with the child.
In cross-examination by the solicitor for the Mother Dr R was of the opinion that the child should continue to reside with the Mother. He was asked what the advantages of this are and he said:
Well, develop personal healthy relationship with the mother, that she have a (inaudible) and work well together with the mother and child, she’s developing well in her care. My concerns were that whilst it had worked well up to her age now and stage the child and (inaudible) continuing an extremely close and, well my concern was perhaps overly close, would might make it difficult to make the transition into adolescence or adulthood. There was no reason that if the mother was able to take on board these issues that she may well be able to adjust to those demands of parenting an adolescent.
Dr R said that the best result would be that the child live with the Mother but at the same time there be an ability to develop the relationship that the child has with the Father. He agreed that the problem therefore would be really how would one best develop the child’s relationship with the Father and “[a]nd that is probably the main focus of what needs to be done to assist [the child]”.
Dr R said:
I believe that the best outcome for the child would be for her to be, for her and mother to be residing in the same town as the father and that there be a gradual increase in contact as proposed by earlier suggestions by independent and lawyers. That it was supported that the child would, you know, reasonable timeframe redevelop re-establish her close relationship with the father and enjoy both a good relationship with the father and the mother. I guess the problem would be extremely difficult if there is a logistical problem of a large distance because there are two problems to overcome then, one is the logistical problem and the second is re-establishing the relationship between the child and the father which needs to be done, I think, in a progressive way.
Dr R made very clear that there should be therapeutic intervention by appropriate counsellors. However, he said there should be a regime imposed and if there is an indication that the therapeutic or the initial attempts at contact or re-establishing contact were unsuccessful then a more definitive measure such as changing residence should be considered
Dr R also made clear that if the Mother and child are in K then it is extraordinarily difficult to do anything. He said that regular therapy when the Father is in W and the Mother is in K is highly impractical. He said that it would really necessitate either the Father living in K where the Mother and child are, or the Mother and child moving back to W. It would then make any reasonable therapy possible.
As to why there have been difficulties Dr R said:
I think the, partly the reason why it may not have worked in the past is that the child I think has been under the impression that she could chose whether she wanted to see the father or respond to him and I think this is probably supported implicitly by the mother that she could chose and that if there was a sense that there was an order and there was no choice that she did have to see the father and comply then I think it’s more likely to be successful under those circumstances.
There was an important exchange between the solicitor of the Mother and Dr R. Dr R made clear that the Mother should in effect be imposing her will on the child and forcing her to spend the time with the Father. Dr R said that the Mother should in effect be dominating the child to ensure that things are put in place and it should be explained that the Mother is imposing the order of the Court. Dr R did recommend that there be therapy so as to ensure that the relationships are re-established and that the issues are dealt with but he made clear that I should specify the regime and it not be left to the outcome of therapy or a counsellor. It was because of this evidence that the Independent Child Lawyer made an amendment to the orders sought.
It was then put to Dr R that this approach pre-supposes that the Mother is able to force her will onto the child and the child participate and Dr R said that in his view the child was really quite a compliant child and she would respond to firm instruction. Dr R said that he believes that the Mother, for whatever reason, would be able to prevail her will on the child and the child would cooperate with the regime.
Dr R was then asked what would happen if the Mother, for whatever reason, would be unable to prevail her will on the child and the child would not cooperate with the regime. Dr R replied that:
Under other circumstances then I think it becomes a fairly extreme situation the chances of the child losing a relationship with the father then is extremely, high that she would then most likely become alienated from the father and not be able to enjoy a balanced relationship with him and the balance in her life between having two parents, I think then she would be left with just a single parent and lose the father and his extended family. Under those circumstances I think Court should consider changing residence to the father whom I believe would be more likely to support a relationship with the mother and that she could then enjoy a relationship with both her parents.

Dr R agreed that the Mother could be upset if she had to return to W and when asked what the effect of this would be on the child:
Well,…obviously if the mother is upset that that could have an affect on the child, however I understand that the mother lived in [W] for ten years and appeared to be quite settled and happy there. [The child] is, I believe a quite versatile child and she does seem to be able to cope with changes at least in the short term. It’s possible that the mother could be very resentful about the move back to [W], and that this could have an adverse affect on [the child]. However, it is also possible that the mother could move back to [W] and re-establish her network and social group and that that also could be of benefit to the child. So, I think a lot of it would depend on the mother’s attitude towards the move.
In examination by counsel for the Independent Child Lawyer, Dr R was asked whether it will take a considerable amount of time to overcome the conflict within the child’s mind about the Father or whether it is the sort of problem that once contact is re-established with the Father the relationship that she has with him will come back fairly quickly. Dr R said “That would be my view that it would more likely to come back quickly. The possible determining factor might be the response and support from the mother if the mother is more accepting of the child seeing the father then that would relieve a lot of stress from [the child]”.
I am of the opinion that is very important for this child that she have the benefit of a meaningful relationship with both her parents and having the benefit of both her parents having a meaningful involvement in her life. If this does not happen then I am concerned about the effect on the child.
I accept the opinions of R. As Dr R said the Mother should realize that if the relationship breaks down and is lost that this is likely to have an extremely detrimental affect (emphasis mine) on the child in the long term. He said, and I accept, that the child has had a close loving relationship with the Father. He said, and I accept, that the Father provides an important balance in the child’s life. He said and I accept that there is a serious risk (emphasis mine) that as a teenager, the child is likely to become depressed and anxious (emphasis mine). He said that if the child does not re-establish her relationship with the Father in the foreseeable future then the likelihood is that the relationship will be lost indefinitely. He said, and I accept, that a relationship with the Father would not only add balance to her life but also would facilitate her separation and individuation as an adolescent and help her adolescent identity formation. He said, and I accept, that if the child remains primarily focused on the Mother she will have enormous difficulties (emphasis mine) helping her become a healthy adolescent and ultimately achieve a healthy transition to adulthood.
Dr R said that it is important to look beyond what the child is saying and find ways to help her re-establish her relationship with the Father.
I am firmly of the view that if the child continues to reside with the Mother in K and the Father resides in W that the child will not have the benefit of a meaningful relationship with both her parents nor have the benefit of both of her parents having a meaningful involvement in her life and that there may be significant problems for the child.
In my opinion it is in the best interests of the child that she reside in W. This is consistent with the opinion of Dr R who said that he believes it would be in the child’s best interest to be living closer to W. When consideration is given to all of the matters I have discussed this is the only possible outcome which will provide the child with the opportunity to have a meaningful relationship with both parents and reduce the risk of harm to the child. If the Mother choses to continue to reside in K then this will have an effect on the child as she will no longer be ordinarily residing with her primary carer. However I also take into account that Dr R is of the view that the child is quite versatile and would adjust. The child would not lose a relationship with her Father. The child would be able to enjoy a balanced relationship with the Father and have the balance in her life between having two parents. I am of the view that the Father would be more likely to support a relationship of the child with the Mother and the child could then enjoy a relationship with both her parents.
Dr R also made clear that there has to be therapeutic intervention by appropriate counsellors and in my view the only practical way this will occur is if the parents live in close proximity to each other. However, obviously I cannot make any order that interferes with the freedom of movement of either parent.
I have taken into account all relevant statutory considerations and the objects and principles of Pt VII of the Act and am satisfied that it is in the best interests of the child that I make orders that are substantially in accordance of those sought by the Independent Child Lawyer.
I propose that as and from 16 July 2007 the child will reside in the W area. This is consistent with the commencement of the school term.
Of course the parties are able to agree on other arrangements if they are satisfied that what I have outlined as being of importance for the child can be achieved by such other arrangements.

I certify that the preceding 199 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan

………………………………………………………..
Associate:
Date: 7 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as JAKIEMIEC & BUCKINGHAM

[2007] FamCA 542

7 June 2007

Key Legal Topics

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Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

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