JOHNETTA & PATSIOKIS

[2012] FamCA 1145

FAMILY COURT OF AUSTRALIA

JOHNETTA & PATSIOKIS [2012] FamCA 1145

FAMILY LAW - CHILDREN – Best interests of child – With whom a child lives – Where there is equal shared parental responsibility – Where the mother previously accused the father of sexually abusing the child – Where the mother sought sole parental responsibility – Where it is in the child’s best interest to cease contact with the child’s present psychologist.

Family Law Act 1975 (Cth)

Cowley & Mendoza (2010) FamCA 597
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Johnetta

RESPONDENT: Mr Patsiokis

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

FILE NUMBER: SYC 64 of 2009

DATE DELIVERED: 13 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 20, 21, 22 and 23 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blackah

SOLICITOR FOR THE APPLICANT: Caroline Chung & Associates

COUNSEL FOR THE APPLICANT: Ms Stenmark SC

SOLICITOR FOR THE RESPONDENT: KDB Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Connor

Orders

1. That all existing orders in relation to the child B, born … March 2005 (“the child) are discharged.

2. That the mother and father have equal shared parental responsibility for the child.

3. That the child live with the mother save for the periods specified in order 4 during which she will live with the father.

4. That the child live with the father as follows:

   4.1each alternate weekend in public school term from after school on Friday to the commencement of school on Monday, commencing the first weekend of each term;

   4.2from 5.00pm on the day preceding Father’s Day to the commencement of school on Monday if not a period already provided for above provided always that the child shall live with the mother from 5.00pm on the day preceding Mother’s Day to the conclusion of that weekend notwithstanding the above orders;

   4.3commencing at the end of term 3 2012, for one half each school holiday period as agreed or in default of agreement alternating between the first half in even numbered years and the second half in odd numbered years;

   4.4the parent who is not caring for the child for the first half of Christmas holidays shall spend time with her from 12.00 noon on Christmas Day to 12.00 noon on 27 December.

5. That the mother and father are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia without the written consent of the other being first obtained or Court Order and it is requested that the Australian Federal Police give effect to this Order by placing the name the child B born … March 2005 on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list until the Court orders its removal or both the mother and father jointly consent to such removal.

6. That all change-overs that do not take place at the child’s school shall occur at McDonalds Restaurant at Suburb C.

7. That the parties shall each use Dr D or other practitioners of the E Practice as the child’s general practitioner, other than in situations requiring urgent or specialist treatment.

8. The mother and father shall each notify the other as soon as possible if the child suffers any serious injury or illness whilst in their care and otherwise notify the other where reasonably practicable of any medical appointment made for the child so as to facilitate the attendance of the other if he or she wishes to do so.

9. That the mother and father each authorise any medical practitioners, pre-schools and schools that the child may attend to release all the information regarding her to the other parent.

10. That the father and mother each act on any recommendation or referrals made by the child’s general practitioner and in the event of such referral or recommendation advise the other promptly in writing so as to facilitate the other having an opportunity to discuss same with the referring practitioner and otherwise they are each restrained from taking the child to any other medical or health practitioner or organisation except as provided for in these Orders.

11. The mother shall not:

    11.1take the child to any medical specialist, counsellor, therapist, psychologist or psychiatrist without first obtaining the father’s consent;

    11.2bring the child into contact with Ms F other than on two further occasions within the next four weeks for the purpose of bringing to a close their relationship.

12. The father shall not:

    12.1take the child to any medical specialist, counsellor, therapist, psychologist or psychiatrist without first obtaining the mother’s consent;

    12.2shout, yell or scream in the presence of the child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Johnetta & Patsiokis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 64 of 2009

Ms Johnetta

Applicant

And

Mr Patsiokis

Respondent

REASONS FOR JUDGMENT

Proceedings

1. Mr Patsiokis and Ms Johnetta are the parents of the child B (“the child”), who was born in March 2005 and is now seven years of age.  The child has been the subject of litigation between her parents since she was a ten month old baby.  Mr Patsiokis and Ms Johnetta have engaged in proceedings in the Local Court Family Matters, the Federal Magistrates Court and this Court, as well as having been embroiled in AVO litigation.

2. The mother was born in 1969 and is now 43 years old.  The father was born in 1970 and is now aged 42 years.  They commenced a relationship in about 2002 and separated finally in October 2005, when the child was a baby of some six months of age.

3. Following the separation the parties arranged for the child to spend time with the father under the supervision of the mother for one and a half hours each Wednesday and Friday and three hours each alternate weekend.  On 25 January 2006 interim orders were made by consent which provided for the child to spend unsupervised time with the father at his home for two hours each Tuesday and Thursday and five hours each alternate Saturday or Sunday.

4. In September 2005 and February 2006 the mother took the child to Europe, for purposes associated with her employment and also to visit her family in Country G.  A dispute arose when the mother wished to take the child to Europe in September 2006 but the father withheld his consent.  The mother made an application to the Local Court Family Matters, where the parties agreed to orders.

5. On 17 May 2006 the Local Court Family Matters transferred the proceedings to the Federal Magistrates Court and made interim orders that the child spend time with the father for two hours each Tuesday and Thursday and for six hours each weekend and on Father’s Day.  These orders also appointed Ms H to act as mediator between the parties.

6. In October/November 2006 the parties attended mediation with Ms H.  The mother informed Ms H that the child exhibited “trance-like behaviour” and screamed at night.  In November 2006 the mother unilaterally suspended the child’s time with the father, claiming that Ms H supported her decision.  Ms H wrote to the solicitors for the parties and denied that she had supported the mother’s action.

7. The mother claimed that the child’s behaviour normalised within two weeks of her ceasing to spend time with the father.  In December 2006 the father filed a Contravention Application, which he withdrew when the mother agreed to increase the child’s time with him to eight hours on weekends.

8. On 12 December 2006 Ms H recommended the appointment of a single expert.  The Federal Magistrates Court appointed Dr J to act in that role on 15 December 2006.  Both parties were restrained from having the child interviewed by any other medical or health practitioner without agreement in writing, a recommendation by Dr J or a Court order.

9. In January 2007 the mother filed an application for orders to enable her to travel to Europe with the child in February 2007.  On 31 January 2007 the Court made such orders and provided for the father to have make-up time.

10. Dr J prepared his first report on 5 February 2007.  He opined that the child’s reported “trance-like states” were “probably inconsequential” and “a relatively common way in which a child who is overwhelmed by conflicting emotions or perceptions can withdraw”.  Dr J referred to the conflictual relationship between the parents and the volatile interaction between the father and the paternal grandfather.  He recommended a graduated introduction of overnight time for the child with the father.

11. On 20 March 2007 the mother’s solicitor sought the father’s consent that the child see a psychiatrist, Dr K, in relation to her “trance-like states”.  The father responded that the child should again see Dr J.  He saw the parties, but not the child, on 12 June 2007 and prepared a report dated 20 June 2007.  He considered that there was no need for the child to see any “child expert” and adhered to his previous recommendations.

12. On 21 May 2007 the Federal Magistrates Court ordered that the child spend time with the father each Saturday from 10.00am until 6.00pm.  Further interim orders made on 31 August 2007 increased this time to Saturday morning until Sunday afternoon.  A further variation on 29 November 2007 increased the child’s time with the father to each alternate weekend, from 4.30pm on Friday until 6.00pm on Sunday, and from 4.45pm until 6.45pm every Tuesday and Friday.

13. In July 2007 the mother took the child to the L Centre in relation to allegedly poor sleep patterns.  In December 2007 the mother claimed that the child returned from time with the father in either a hyperactive or listless and lethargic state.  She alleged further that the child woke at night, crying and complaining that the father shouted at her.  The father denied that the child displayed any disturbed behaviour while in his care and maintained that she generally slept well.

14. On 8 February 2008 the Federal Magistrates Court made orders which enabled the mother to travel to Europe with the child for approximately three weeks and provided make-up time with the father.  The mother and the child were in Europe from 8 February 2008 until 28 February 2008.

15. On 13 May 2008 Dr M, a consultant paediatric physician, wrote a report addressed to the child’s general practitioner and Dr K.  Dr M assessed the child as “a normally well, developing and growing three year old girl”.  Dr M noted that the mother reported to her “significant concerns about [the child’s] mental health”.

16. On 27 May 2008 the mother took the child to Dr K, without the father’s consent and despite the order of 12 December 2006.  Dr K reported to Dr M on 28 May 2008, stating inter alia:

    Certainly there appears to be no obvious psychiatric diagnosis of this young girl and the history provided by the mother would suggest that there are some adjustment issues and anxieties associated with the changing of care from mother to father.  I am concerned that there has been no ongoing psychological assessment and care of this young girl as from the history she appears to be very distressed.

17. The mother alleged that the child complained to her on 21 July 2008 that the father touched her in the genital area.  On 23 July 2008 the mother’s solicitor sought the father’s agreement for a paediatrician to see the child “to examine her current behaviours”.

18. On 28 July 2008 the mother’s employment was terminated and she was offered a position in Europe.  On 30 July 2008 the mother filed an application for orders to permit her to re-open her case.  She proposed to relocate to Europe with the child.  The father opposed this application.

19. On 12 September 2008 the Federal Magistrates Court made final orders, which provided that the child live with the mother and spend time with the father including overnights each alternate weekend and every other Tuesday and Thursday.  Further orders provided that the child’s name be changed to “B Patsiokis-Johnetta” and that the mother be permitted to take her on overseas trips in February and September of each year, subject to make-up time with the father.  The mother’s relocation application was listed for hearing in February 2009 and Dr J was requested to prepare an up-dating report.

20. The mother alleged that the child continued to complain of soreness in the genital area and inappropriate touching by the father during September 2008.  On 2 September 2008 the child’s general practitioner diagnosed thrush and recommended the use of a hydrocortisone cream.

21. On 13 September 2008 the mother took the child to Suburb N Hospital.  Staff declined to take the mother’s concerns further without DoCS’ involvement.  The matter was referred to the child’s general practitioner, who diagnosed “non-specific vulvovaginitis”.

22. In November 2008 the child began to see a psychologist, Ms O, to whom she had been referred by her general practitioner.  Ms O’s role became controversial and, during the final phase of the trial in April 2012, the parents and the Independent Children’s Lawyer (“the ICL”) sought that she cease any further involvement with the child.  I will refer below in these Reasons to the nature of Ms O’s involvement with the child and the parents and to Dr P’s evidence on that issue.

23. On 1 November 2008 the child again saw Dr M, this time due to “the mother’s concern about toileting issues”.  According to Dr M’s report of 1 November 2008 the mother also referred her to “issues with sleep and soiling, generally a lack of energy and poor memory”.  Dr M noted “a lot of attention seeking behaviour” in her interaction with the child and expressed concern about her receptive language ability.

24. The child’s statements about inappropriate touching by the father continued during November 2008 and expanded into references to digital penetration and licking in the genital area.  The father has at all times vehemently denied that he sexually abused the child in any way at all.

25. On 14 November 2008 the mother and the child attended interviews by JIRT officers.  Police officers applied for and obtained an ex parte provisional AVO.  On 20 November 2008 the father consented, on a without admissions basis, to an interim order for the protection of the child.  The father maintained that he took this step to enable DOCS to investigate the allegations of sexual abuse.  This order had the effect of stopping all contact between the child and the father.

26. On 20 November 2008 the father was interviewed by police officers in relation to the allegations of sexual abuse.  He was never charged with any offence involving the child.

27. On 11 December 2008 the Local Court discharged the order suspending the child’s time with the father.  During December 2008 attempts were made to arrange for her to spend supervised time with him.  The child had last seen the father on 12 November 2008, when they were briefly together during a consultation with Ms O.

28. Dr J prepared his third report on 14 January 2009.  He recommended that the child live with the father and spend alternate weekends and half of school holidays with the mother.

29. In relation to the allegations of sexual abuse Dr J opined:

    The major notification was made on November 14^th 2008 and led to an interview by JIRT.  From reviewing a DVD record, I would agree with him that the child’s statements then did not really provide any context origenous detail to the allegations.  Indeed the father’s alleged behaviour described by the child in the interview was rather novel in a child’s experience, and I would have thought that if indeed she had been experiencing this at the earlier times, that she may have spoken about it earlier than the more mundane painful touches.  Generally, a pattern of increasing the ominous allegations such as occurred in this case is consistent with two possibilities – first, a child gradually releasing further more serious details if there is an attitude of shame or embarrassment about what happened, and second, a gradual contamination of the child.  However the child’s demeanour in the interview did not indicate any shame or embarrassment, but rather the opposite, because ordinarily one would not have expected a child of this age to know that such activities attracted these types of affects.  I felt that contamination was the more likely explanation.  I also note that [Ms Johnetta] herself referred to a leading aspect of her questioning.

    There is no doubt that [Ms Johnetta] is genuinely anxious and concerned about [Mr Patsiokis’] potential for inappropriate behaviour.  She seems incapable of reassurance about this, either in terms of risk to herself or risk to her daughter.  Indeed she and the child even fled her home for several days after certain new orders were made.  She simply refuses to accept the observations of professionals in regard to the child’s actual relationship with her father.  In my view it is probable that the same anxiety has driven an anxious pre-occupation with inappropriate behaviour which was gradually escalated with leading questions to the allegations as they were reported on November 14^th 2008.  While it may be that this can be entirely explained on the basis of the mother’s anxiety, I could understand concern that there may also be a manipulative element to this, because it does seem that [Ms Johnetta] was then somewhat selective in her reporting of these incidents, and the coincidence of this cycle with her application to relocate may also be consistent with her seeking to interrogate the child for advantage.

30. Dr J summarised his basis for a change in primary residence in these terms:

    It falls from the views expressed above that I am of the view that the child’s best interest would be served by living with her father.  As I have indicated above, it is my view that the child will continue to be reported as having significant emotional and behavioural symptoms by her mother if she were to continue to reside with her mother, particularly if orders are also made for her to spend time with her father.  On the other hand, I am of the view that if she were to live with her father, she would be a much more settled and happier child because that is her natural state with her father and she would be spending far more time with him.  Nevertheless, she also has an important relationship with her mother which has to be nurtured and supported.  I have indicated that I am of the view that [Ms Johnetta] needs significant assistance with her parenting in order for the relationship to assume a more normal and appropriate shape, and also that for these benefits to be gained, she needs to have a fundamental shift of heart.

31. On 20 February 2009 the parties consented to interim orders which provided that the child spend supervised time with the father each alternate weekend, every other Wednesday night and for five nights during the Easter school holidays.  The child recommenced spending time with the father in accordance with these orders on 22 February 2009, after a break of some three months.

32. The trial commenced before me on 21 April 2009.  After hearing evidence, including that of Dr J and Ms O, the parties reached an interim agreement.  Dr J, Ms O and the mother’s therapist, Ms Q, held a conference before they each gave evidence.  On 24 April 2009 I ordered, by consent and pending further order, that the child live with the mother and spend five nights per fortnight with the father.  These arrangements were to be reviewed after approximately twelve months.

33. At the commencement of the trial on 21 April 2009 the mother’s counsel informed me that she abandoned her application to relocate with the child to Europe and also retracted her allegations that the father sexually abused the child.  In light of subsequent events, it is appropriate that I record certain evidence given by the mother on 22 April 2009.

1. In her evidence-in-chief the mother proposed that the child spend alternate weekends and half of all school holidays with the father.  During cross-examination by counsel for the ICL the mother said:

   I accept that it has been very difficult for [Mr Patsiokis], facing the allegations and the prospect of a move to [Country G].

   I say to you [Mr Patsiokis] ‘I am sorry for what I have put you through, I would never have accused you if I had not believed her, I want us to move on.’

   I did not realise that my anxiety was affecting the child’s behaviour.

   Now I worked out that it is not the father, it is the whole being away thing.

   I am not taking a tactical position.

   I still have concerns about the child being hit and shouted at.

   I accept that [Mr Patsiokis] has the capacity to be a good parent.

   I have every intention of making this work.

2. There must be doubt about the mother’s sincerity in giving this evidence, having regard to subsequent events and her counsel’s submission at the conclusion of the trial in March 2012:

   The mother was very taken aback by some of the ICL’s questions about why she consented to the April 2009 orders when she did not think that it was in the child’s best interest and she can’t do that again.

   As appears below, the mother took steps to terminate or limit the child’s time with the father following the interim orders of 24 April 2009.

3. In February 2010 the mother consulted the child’s general practitioner about alleged “constipation issues”.  She sought the father’s consent to a specialist referral, which he gave after taking advice from the general practitioner.  The child subsequently saw Dr R, a paediatric gastroenterologist.  Dr R prescribed medication and recommended that the child eat a high fibre breakfast and drink lots of water.  He stressed the “importance of consistency of therapy” in his report of 20 September 2011.

4. The mother maintained that the father fails to administer the prescribed medication by Dr R correctly or consistently when the child is in his care.  He was adamant that the child eats high fibre food, takes her medication as prescribed and toilets normally when she spends time with him.  I accept the father’s evidence on this issue.

5. In December 2010 the mother took the child to Dr S, a behavioural optometrist, on the advice of Ms O.  On 21 December 2010 Dr S reported to Ms O, inter alia:

   Case History:

   [The child] has had difficulties with learning, reading and concentrating at school.  She prefers being read to than to do the reading herself and does reverse some numbers and words.  She has major anxiety problems and when anxious all of her learning faculties are affected.  Some visual targets move around.

   Initially the child was very reserved during the examination but relaxed and became more cooperative as the examination progressed.

   EXAMINATION:

   Eye Health:

   No problems were found with the health of the eyes.

   RECOMMENDATION:

   A series of exercises to be done in the practice with our visual therapist and some exercises at home.

   These will coordinate the visual and visual processing systems to allow for better more comfortable visual information processing and link up the eyes hand and brain to allow more efficient comfortable learning.

   Shaded single vision spectacle lenses have been prescribed according to the colorimeter findings, and these are to be used for close work, class work and computer.

6. On 13 April 2010, the mother’s solicitor filed a Notice of Ceasing to Act.  On 28 April 2010 the mother’s new lawyers filed an application for orders that the father undergo a psychiatric assessment by Dr T.  This application came before me on 26 May 2010, when I was informed that the mother’s lawyers had already made an appointment for the father to be psychiatrically assessed by Dr T.  The ICL informed me that the mother’s lawyers made no approach to her about this proposal.  I refused the mother’s application, which was opposed by the father and the ICL.  It seemed to me to be appropriate that a single expert assess the psychiatric state of each of the parents on the resumption of the trial.

7. On 26 May 2010 the ICL proposed that the parties submit questions to Ms O to enable her to prepare an updated report.  The solicitors for the mother and father submitted one hundred and four and eight questions respectively to Ms O.

8. The father commenced contravention proceedings on 21 January 2010 after the mother refused to hand the child over for Christmas school holiday time in accordance with the consent orders of 24 April 2009.  This application was heard and determined by Johnston J on 10 January 2011 and 22 February 2011.  His Honour found the mother to be in contravention of orders without reasonable excuse.  She was ordered to pay the father’s costs.  His Honour made interim orders providing that the child spend time with the father each alternate weekend from Friday afternoon until Monday morning, with this arrangement continuing during school holidays.

9. On 22 February 2011 Johnston J ordered that Dr P be appointed as single expert for the purposes of completion of the proceedings.  Dr J elected to withdraw in light of the mother’s dissatisfaction with his previous involvement with the parties and the child.  In particular, she took issue with the fact that Dr J elected to observe the child and the father together for his report of 14 January 2009, at a time when Ms Johnetta was of the view that he should not be alone with the child.  Dr P prepared a report dated 21 April 2011 which essentially recommended that the child continue to live with the mother and spend a minimum of three nights per fortnight with the father.

10. In March 2011 the mother presented the child to her general practitioner with a condition which she described as “a bad cough and wheeze for three days”.  The mother informed the father in an email that the child had been diagnosed with “asthma” and prescribed a ventolin inhaler.  A medical report dated 17 March 2011 (Exhibit 15) to staff at the child’s school read in part:

    …[the child] is presently being treated for a viral induced wheeze and will need administration of ventolin at lunch time and half an hour before exercise whilst she has ongoing symptoms of an upper respiratory tract infection.

11. On 31 October 2011 the child began to see Dr U who is a specialist in allergy, respiratory and sleep medicine.  Dr U reported to the child’s general practitioner on 31 October 2011:

    …[the child] has a long history of allergic rhinitis with recurrent nasal stuffiness, epistaxis and symptoms of posterior nasal mucus drip.  She does not snore at night but she often wakes up with dark circles below her eyes.  She has had coughing and wheezing which is well relieved with Ventolin.  Her current medication includes Rhinocort 64mcg twice daily, Flixotide 50 ii bd and Ventolin when required.  She has had Claratyne in the past with little benefit.

12. Dr U carried out tests which established that the child is allergic to dust mites, cat fur and grass pollen.  The mother alleged that the child’s ongoing respiratory problems were attributable to the father’s alleged failure to follow Dr U’s recommendations as to allergies and correct administration of medication.  The father denied that he fails to follow medical advice in relation to the child’s respiratory problems.

13. In an email dated 18 November 2011 the mother wrote to the father inter alia:

    I believe that you are not willing to take the advice of [Dr U] the respiratory specialist seriously, and not willing to work with me in reducing [the child’s] exposure to house dust mites …

    Apparently the mother attached no significance to the fact that two cats live in her household.  She said:

    It never occurred to me that cats might have something, to do with how she felt.

14. On 9 February 2012 Dr U reported an improvement in the child’s condition.  In a report to her general practitioner he wrote:

    [The child] has been well.  She has had no further epistaxis, nasal stuffiness or symptoms of posterior nasal mucus drip.  She is sleeping well at night and has been waking up quite refreshed.  She has had little coughing or wheezing even after exertion.  She maintains a daily peak flow reading between 150 and 210L/minute.  She seldom needs to take any Ventolin.

15. On 7 October 2011 the mother obtained a referral to a psychiatrist for the child apparently on the advice of Ms O.  She did not seek the father’s consent and failed to inform him of the appointment until 15 January 2012.

16. The proceedings were listed for final hearing on 20, 21, 22 and 23 March 2012.  The mother opposed the ICL’s application that Dr P prepare an updating report.  By that time the mother’s position was that the child spend day periods only with the father, as was clear from the Minute of Order submitted on her behalf dated 7 March 2012.

17. The proceedings were listed before me on 10 February 2012 for argument as to whether Dr P should prepare an updating report.  Counsel for the mother provided written submissions (Exhibit 11) in opposition to any further engagement of Dr P.  These submissions contained some extraordinary propositions, including:

    5.It is submitted that requiring a child to submit to a further assessment by [Dr P] would constitute neglect of her emotional needs.

    6.The child’s treating psychologist of in excess of four years, [Ms O], opposes it.

    7.[Ms O] believes that the child has no confidence that her wishes are likely to be respected, and is unlikely to tell [Dr P] what she really thinks.

    8.[Ms O’s] opinion should carry significant weight.

    9.[Dr P] has clearly formed a view about the mother that is adverse to her and cannot reasonably bring an unbiased mind to any further assessment.

    10.The mother has read [Dr P’s] first report and is unlikely to engage with him in any useful manner.

    11.No criticism of her could reasonably be made about that.

    12.The report could fairly be described as a character assassination of the mother, based upon Dr P’s assessment of her credit …

18. I was unmoved by these submissions and ordered that Dr P prepare an undated report.  It seemed to me to be no coincidence that the mother firstly took issue with Dr J and then Dr P’s reports, when they both contradicted her position in the proceedings.

Approach to these proceedings

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) provides that the objects of Part VII are to ensure that the best interests of children are met and sets out how that purpose is to be achieved (s.60B(i)); the principles which underlie these objects (s.60B(2)) and bestows a specific right in an Aboriginal or Torres Strait Islander child to enjoy his or her culture (s.60B(3)).

2. Section 60B provides:

   (1)      The objects of this Part are to ensure that the best interests of children are met by:

   (a)      ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
   (b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
   (c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
   (d)      ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)      The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)      children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
   (b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
   (c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
   (d)      parents should agree about the future parenting of their children; and
   (e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture; and
   (b)      to have the support, opportunity and encouragement necessary:

   (i)       to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. Section 60CA provides that, in deciding whether to make a particular parenting order, the Court must regard the best interests of a child as the paramount consideration. Section 60CC sets out two primary and 13 additional considerations to which the Court is required to have regard when determining what orders are in a child’s best interests. Section 60CC(4) requires the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in specified respects. The Court must consider the extent to which a parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to a child and to spend time and communicate with a child. The Court must also consider the extent to which a parent has facilitated, or failed to facilitate, the other parent making long-term decisions and spending time and communicating with a child. I will set out and refer specifically to the primary and additional considerations below in these reasons.

4. Section 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.  Section 61DA(2) provides that this presumption will not apply if there are reasonable grounds for the Court to believe that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family.  Section 61DA(3) provides that this presumption may be rebutted by evidence which satisfies the Court that it is not in a child’s best interest for his or her parents to have equal shared parental responsibility.

5. Section 65D of the Act contains the Court’s power to make a parenting order. This section provides:

   (1)      In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

6. An order for a child’s parents to have equal shared parental responsibility carries consequences which are set out in sub-ss 65DAA(1) and (2).  In these circumstances the Court must consider whether it is in a child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent.  If there is an order for equal shared parental responsibility and no provision for a child to spend equal time with each parent, the Court is obliged to consider whether it is in his or her best interests, and reasonably practicable, for the child to spend substantial and significant time with each parent.

7. There is no temporal definition of “substantial and significant time” in the Act. Section 65DAA(3) sets out requirements for a parenting arrangement to fulfil this definition. It is necessary for a child to spend time with a parent on weekends, holidays and at other times; that a parent is able to be involved in the child’s daily routine and events which are of particular significance to the child and that the child is able to be involved in events which are of special significance to a parent. The Court is permitted to take into account additional matters in determining whether the time which a child spends with a parent is “substantial and significant”:  s.65DAA(4).

8. The concept of “reasonable practicability” is considered in s.65DAA(5) of the Act. The Court is required to take into account certain matters when determining whether it is “reasonably practicable” for a child to spend equal or substantial and significant time with each parent.  These matters include, but are not limited to, the distance between the parents’ homes; the parents’ current and future capacity to implement an equal or substantial and significant time arrangement; the parents’ current and future capacity to communicate and resolve difficulties and the impact of such an arrangement on the child. 

9. In MRR v GR (2010) 240 CLR 461 the High Court said:

   9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.

10. The High Court said further in MRR v GR (2010) 240 CLR 461:

    13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist (18). If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

11. The High Court held further:

    15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

12. In Cowley & Mendoza (2010) FamCA 597 at [41], Murphy J summarised the relevant principles as follows:

    41.The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:

    ·First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;

    ·Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;

    ·Further or alternatively, then make findings, by reference to s.60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;

    ·Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;

    ·If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s.65D; s.60CA; s.65AA).  (As the Full Court put it in Goode, the enquiry about best interests is “at large”);

    ·If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s.65DAA) then proceed to:

    oMake findings as to whether the subject children’s best interests are best met by an order for equal time; and

    oMake findings as to the matters prescribed in s.65DAA(5), and, as a result;

    oMake findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and

    oIf it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s.65DAA(3)) should be made;

    ·If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s.65D; s.60CA; s.65AA).

1. I respectfully agree with his Honour’s analysis, which I will apply in the determination of these proceedings.

The Evidence And Witnesses

1. In the first phase of the trial the mother relied on affidavits sworn by herself, Ms O, the maternal grandmother Ms V, her therapist Ms Q and Ms W.  I heard oral evidence from the mother, Ms O and Ms Q.  Ms W, a child-care centre worker, was not required for cross-examination.

2. In the first tranche of the trial the father relied upon affidavits sworn by himself and Ms X, who supervised the child’s time with him in 2009.  I heard oral evidence from the father before the parties reached the interim agreement.

3. The initial single expert, Dr J, prepared three reports and gave oral evidence in the first phase of the trial.  As noted Dr J, Ms O and Ms Q conferred and devised a plan which was the foundation for the interim agreement as to parenting arrangements for the child.

4. In the second phase of the trial the mother relied on affidavits sworn by herself, Ms O, Ms Y, Ms Z, Mr AA and her solicitor, Ms Chung.  I heard oral evidence from the mother, Ms O, Mr AA, Ms Z and Ms Y.

5. The mother’s solicitor annexed to her affidavit a draft of written evidence proposed to be given by Ms BB.  This witness refused to provide an affidavit and was compelled by subpoena to give evidence.  She was clearly very uncomfortable at being involuntarily embroiled in the proceedings and, with respect to her, gave evidence which was of little assistance.

6. Essentially, Mrs BB deposed that her daughter CC is the child’s best friend and that the two girls attend school, swimming lessons and dance classes together.  She described two incidents when the child spoke to her daughter only after she and the father had conversed, when they met at a dance rehearsal, the children’s school and a supermarket.  I am unsure what significance I was to attach to this evidence.

7. Mr AA commenced a relationship with the mother in April 2011, while he was visiting friends in Australia.  He lives in Europe but intends to re-settle in Sydney.  Overall, Mr AA impressed me as a kindly, well intentioned person who may be able to assist in reducing the level of conflict between the parents in due course.  For example, he encouraged the mother to allow the child to see the father at Christmas 2011.

8. Ms Z is a friend of the mother who was present on social occasions with her and the child on 18 September 2010 and 18 January 2011.  She deposed that, on 18 September 2010, she and the mother went to dinner at a sporting club with their children.  A few minutes after they arrived at the club she observed that the mother’s “face froze”.  She saw the father and his partner at the entrance to the restaurant.  Ms Z opined that “[B] looked like she was in a daze” and “she was just being led along like she was in a trance”.  Ms Z further offered the opinion that “on this day [the child’s] hair was messy and she wore drab clothes”.  She further asserted that “[B] sat and she looked like a zombie, completely expressionless” and “in my view, [the child] looked like she had shut down in order to cope and behave like she was in a catatonic state”.

9. Ms Z further deposed to an occasion on 18 January 2011 when she, the mother and their children had dinner together at a sporting club after a day at the Zoo.  She maintained that the child became distressed and wanted to change their table after they had been in the restaurant for a short time.  The mother told Ms Z that the child was distressed because of a man named “Mr DD”, a friend of the father, was in the restaurant.  Ms Z deposed that she observed the child “looking at [Mr DD] with fear in her eyes” and “making a strange grunting animal noise that I had never heard her make before”.

10. In cross-examination, however, Ms Z said “I have seen her grunting when with her mother”.  She said also “[Ms Johnetta] displayed wide-eyed fear” and “I can’t say whether [the child] saw [Ms Johnetta’s] face freeze”.  She conceded that she had no information as to what may have happened to the child before she arrived at the rowing club.

11. Dr P was asked to comment on the affidavit of Ms Z.  He opined that the use of the term “catatonic” by Ms Z was inappropriate, as this word has “a very specific use in a particular form of schizophrenia”.  Otherwise Dr P simply noted that her observations “speak for themselves”.

12. The ICL submitted that Ms Z “saw her attendance at Court as her opportunity to inform us all of what is happening and was clearly partisan”.  I am inclined to agree with this proposition.

13. Ms Y presented as a much more even handed witness than did Ms Z.  She is a friend of the mother who lives around the corner from the child’s school.  She deposed that she observed the father deliver the child to school on one occasion, when she did not respond to greetings from herself and her daughter.  She contrasted this behaviour to the child’s happy presentation when the mother takes her to school.

14. In cross-examination Ms Y readily conceded that her observations of the child’s arrival at school “were made in passing”.  The incident to which she referred took place in mid-2010 and was one of four occasions when she saw the father deliver the child to school.  She agreed that she knew nothing of the child’s state of health or what may have happened before she arrived at school on that day.  She said “absolutely, there could be an innocent explanation, of course”.

15. I attach no particular significance to the evidence of Mrs BB, Ms Z or Ms Y.  In final submissions counsel for the mother did not explain the relevance of this evidence.  He said only:

    what to make of the evidence of the school mother’s is problematic but they saw what they saw.

    The mother’s involvement of these witnesses, particularly the reluctant Mrs BB, suggested to me that she wishes to limit the child’s time with the father as much as possible.

16. Ms O impressed as a well intentioned professional who has unfortunately become embroiled in the mother’s cause.  Dr P offered an opinion of the process by which Ms O has been forced into this position.  I found Dr P’s evidence to be persuasive and helpful overall.  I reject the suggestion that he engaged in “a character assassination” of the mother.

17. Dr P first commented that he “respects [Ms O] as a clinician” and has referred patients to her in the past.  He noted that she told him that she has no experience “in family law matters”.

18. Dr P said of Ms O in oral evidence:

    •She started with a balanced view but she has now engaged very strongly with the child and her mother.  I observed a very strong alignment with the mother.  She took the mother’s statements about the child at face value.

    •It was evident that she had aligned with the mother and the father had become more disgruntled and hostile over time, which had strengthened her alignment with the mother.  It appeared that she became sucked into a very powerful pathology between the parents.  It is not surprising that she ended up choosing sides.

    •She adopted a methodology that suited the mother’s wishes.

    •I have made extremely few recommendations for a therapist to be disengaged, as I did with [Ms O].

19. Ms O made significant concessions as to her interaction with the mother, the father and the child and the consequences of some of her actions.  She said, for example:

    •I say that there should be no overnight time, based on what the child and her mother tell me.  Yes I should have seen him before making this recommendation but he had trouble paying and became angry.

    •I agree that the objective evidence and what the mother said were inconsistent in my report of 8 December 2008.  At that time mother thought all of the child’s problems were in some way caused by the father.

    •I know none of the mother’s observations are corroborated by anyone, except for constipation.

    •In May 2011 her lawyers requested that I work out with them questions to put to [Dr P].  Ms Chung and Mr Blackah came to my consulting room.  They came to ask my opinion about the report.  No, it is no wonder that the father sees me as conspiring with the mother.

    •I would not expect the father to have confidence in me now.  It fell apart in 2010 leading up to the first holiday contact.

    • [Referring to a note of 28 October 2010] I received a fax from [Ms Johnetta’s] solicitor and there was a plan to report something to DoCS.  I reported the father to DoCS around this time.  The question put to me by the solicitor was about supervision and whether DoCS would be interested in shouting.

    •I accept that I might have been treating the chicken rather than the egg.  If the psychiatrists are correct, yes I may have done damage.

20. In the second phase of the trial the father relied on his affidavit sworn on 12 March 2012.  He gave his oral evidence calmly and impressed as a father who has gone to great lengths to sustain his relationship with the child in the path 14of substantial obstacles.

21. I have the benefit of two reports from the second single expert, Dr P, dated 21 April 2011 and 29 February 2012.  I found Dr P’s written and oral evidence to be carefully considered, and of considerable assistance.

The Presumption Of Equal Shared Parental Responsibility

1. These proceedings will result in the making of parenting orders.  Consequently I am required to apply a presumption that it is in the child’s best interests for the father and mother to have equal shared parental responsibility.

2. The mother sought an order that she have sole parental responsibility on condition “that prior to making any non urgent decision in relation to the long-term welfare of [the child], the mother shall use her best endeavours to give the father a reasonable opportunity to inform her of his views and will consider his views in a genuine and bona fide matter prior to making any such decisions.”  Counsel for the father submitted that such an order would almost certainly be “meaningless”, having regard to the mother’s history of making unilateral decisions in respect of the child.  I am persuaded that there is considerable force in this submission.

3. Ultimately, the father seemed to be prepared to adopt the ICL’s proposal for the parties to have equal shared parental responsibility.  The parents would be bound to act upon recommendations and referrals by the child’s general practitioner and be restrained from taking her to any other medical or healthcare professional.

4. It seems to me clearly to be in the child’s best interests for the father to play the significant role in decisions relating to her medical and health care.  Dr P recommended that the parties have equal shared parental responsibility and opined that the child’s current general practitioner, Dr D, “has a good understanding of [her] circumstances and presentation”.  I consider that the father is most likely to make a balanced assessment of the necessity for medical intervention for the child.  In my view, the father’s participation in decisions relating to the child’s medical treatment and other major life issues would greatly assist the process of “normalising” the child which commended itself to Dr P.  He commented favourably on the approach taken by the child’s teacher in 2011 in this regard.

5. The mother alleged that the father engaged in various forms of abuse of the child.  As noted, she retracted her allegations of sexual abuse at the beginning of the first phase of the trial.  In this tranche of the proceedings her allegations focussed on supposed failures by the father to properly provide for the child’s needs and a propensity to shout in her presence.  I will consider these allegations below in these reasons.

6. Dr P expressed concerns as to the mother’s current attitude to her allegations of sexual abuse.  In his first report he wrote:

   12.Interestingly, it was necessary for the assessor to specifically ask about the sexual abuse allegations.  The mother responded in a matter of fact manner, describing the circumstances and experience in a neutral way.  This was somewhat surprising given the dramatic nature of the previous disclosure and allegations.  The mother described being shocked by the child’s disclosure and had discussed the matter with a friend, her GP and reported the matter to DoCS.  This ‘just happened to coincide’ with her application to relocate to [Europe].  There had been no further disclosures or concerns.  She simply stated:  ‘That’s it I suppose.’  When asked if she believed the child had been sexually abused by the father, the mother replied:  ‘To me it now just seems like words.  I don’t think she was sexually abused, but I can’t explain why she used those words’.

7. Dr P also opined in his first report:

   114.    This assessment was conducted with the benefit of extensive documentation and previous Court Expert assessments conducted by [Dr  J] and [Ms O], who had also provided therapeutic intervention for the family.  All parties were compliant with the process of assessment.  It was highly concerning that there had been ongoing adversarial conflict between the parties which had been played out within the protracted Family Court proceedings.  This reflected the profound lack of trust and mutual respect between the parents.  The mother had made repeated allegations against the father, including that he had been the perpetrator of child sexual abuse and had a psychiatric condition.  The father saw this as her trying to exert control over the child and attempting to exclude him from any substantive parental role.  This was in the context of her previous application to relocate to [Europe].  It was thus surprising that the mother minimised such issues at the time of the assessment.  In my experience, such a reversal is highly unusual.

8. In his oral evidence Dr P said:

   It is unusual for the mother to reverse her view on sexual abuse because she said nothing about it to me until I raised it, then she responded in a very neutral way.  This is unusual because she had previously raised it in a very dramatic way.  It is more usual for a parent to remain disquieted – that is a pretty normal response if concerning disclosures have been made.  Normally if a person is being supported to let it go, there is a grudging acceptance but I did not see that here.

9. The mother’s preparedness to advance and retract the allegations of sexual abuse caused me to ponder whether she engaged in emotional abuse of the child.  On balance, however, I formed the view that she acted without malice but consistently with a tendency to “exaggerate and magnify”, as adopting the words of Dr P.

10. There was no evidence which satisfied me that the father engaged in any form of abuse of the child.  As appears below, it would be highly desirable that he desist from shouting in her presence.  In my view, however, this behaviour does not amount to abuse of the child.  I thus find that neither parent has engaged in child abuse.

11. I am not satisfied that the father has engaged in family violence, despite the fact that a final AVO was made against him for the protection of the mother and the child on 7 March 2011.  The father gave a comprehensive account in his affidavit of an incident on 15 December 2010 which led to the making of this order.

12. The mother emailed the father and advised him that she intended to “contravene the orders of 24/4/09” by refusing to make the child available to spend the first half of the Christmas holidays with him in accordance with the interim orders of 24 April 2009.  The father attempted to collect the child from school and an altercation arose between the parties.  The father deposed that the mother kicked him while holding the child and shouted at him.  The mother offered no account of this incident in her affidavit.  She reported the incident to police, who applied for an AVO against the father.  He gave uncontradicted evidence that he consented to a final order on a “without admissions” basis.

13. There was no other evidence that the father has ever engaged in conduct which might be described as family violence.  On the information available to me, I am of the view that the mother’s conduct on this occasion was as reprehensible as that of the father.  For these reasons, I am not satisfied that the father has engaged in family violence.

14. I find that it is in the child’s best interests for her mother and father to have equal shared parental responsibility, subject to the conditions proposed by the ICL. Consequently I am required to consider whether it is in the child’s best interests, and reasonably practicable, that she spend equal time with each of her parents. I will carry out this process by reference, inter alia, to the considerations set out in s 60CC of the Family Law Act 1975.

The Child’s Best Interests:  Section 60CC Considerations

The Primary Considerations: Section 60CC(2)

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

1. I have found that neither parent has subjected the child to any form of abuse.  As noted, the mother alleged in this phase of the proceedings that the father exposed the child to harm by neglecting to meet her medical and educational needs.  She also alleged that the father exposed the child to harm by shouting at her or in her presence.

2. In her affidavit sworn on 6 March 2012 the mother alleged that the father failed to comply with treatment regimes in respect of the child’s asthma and constipation.  She maintained that he failed to administer the correct dosage of medication for the child’s constipation but seemed to rely principally on the child’s reports in reaching this conclusion.  Similarly, she seemed to rely largely on the child’s alleged statements in concluding that the father failed to correctly administer a nasal spray and ventolin puffer to control her asthma.

3. I do not share the mother’s view that the email correspondence annexed to her affidavit supports her contention that the father neglected the child’s medical needs.  He seemed to take the reasonable approach of following medical advice rather than simply accede to the mother’s requests for specialist intervention.  In these emails he advised the mother that the child had no problems with toileting while in his care.

4. The father gave uncontradicted evidence that he consults the child’s general practitioner to ensure that he is taking appropriate steps in relation to her health.  He deposed that he consults with Dr D on several occasions per year to seek her advice as to the child’s health issues and appropriate treatment.  He deposed further that he spoke to Dr R on 16 October 2011 about management of the child’s constipation.  In his second report Dr P noted that Dr Sophie D “did not regard the father to be obstructive and neglectful as depicted by the mother”.

5. The mother apparently attached significance to the fact that the father sought assistance for the child from ambulance officers at EE Town Show in April 2011.  She became short of breath after playing on a jumping castle and ambulance officers administered a puff of ventolin.  The father explained he had left the child’s puffer in his car, which was some distance away, and sought assistance from nearby ambulance officers.

6. The father did not inform the mother that the child had been given a puff of ventolin by ambulance officers, believing that the event was of little consequence.  When the mother became aware that the child had received this assistance, she required the father to provide a copy of the ambulance report.  Probably the father was unwise in failing to inform the mother of this event but, in my view, she overreacted to a very minor health incident.  I see nothing inappropriate or irresponsible in the father’s conduct on this occasion.

1. I do not consider that the child could comfortably continue to attend Suburb C School in an equal time regime.  The father said that he and the child leave his home at Suburb HH at 8.45am so as to arrive at Suburb C School by 9.20am.  I consider that it would not be reasonably practicable for the child to make this 35 minute trip on half of all mornings when she attends school.  On the other hand, she can walk to school from the mother’s home in Suburb C.

2. For these reasons I find that it would not be in the child’s best interests, nor reasonably practicable, for her to spend equal time with each parent.  I am then required to consider whether it would be in her best interests, and reasonably practicable, that she spend substantial and significant time with each parent.

3. These same considerations militate against an arrangement whereby the child spends substantial and significant time with each parent.  The current arrangement in which the child spends three nights per fortnight with the father has operated relatively successfully for approximately the last eighteen months.  In my view it could reasonably be assumed that the child is now accustomed to this regime and its continuation was supported by the ICL and Dr P, subject to the addition of block school holiday periods.

Conclusion Considerations

1. I find that it would not be in the child’s best interests, nor reasonably practicable, for her to spend equal or substantial and significant time with each parent.  The level of parental conflict and the desirability that she remain at Suburb C School are the main contra-indications to such an arrangement.

2. I find that it is in the child’s best interest that she continue to spend three nights per fortnight in the care of the father and that she commence to live with him for half of all school holidays.  I am confident that the father will arrange enjoyable activities for the child during school holidays and that he will care for her very well during these periods.  I doubt that the mother would encourage the child to spend five nights per fortnight with the father and I consider it likely that she would infect the child with her own anxieties in those circumstances.  In my view, a continuation of the existing arrangements is the regime which is most likely to operate to the child’s benefit.

3. I stress again that any further conduct on the part of the mother which undermines the father/child relationship could trigger a reconsideration of the issue of the child’s primary care.  The mother would be well advised to engage appropriate professional assistance if she continues to have difficulty in accepting that the child loves the father and that he has a very significant role in her life.

Specific Issues

1. The mother sought an order that the parties do all things necessary to cause a birth certificate to issue in the name “B Patsiokis-Johnetta”.  On 12 September 2008 the Federal Magistrates Court ordered:

   5.The child hereafter be known as [‘B Patsiokis-Johnetta’] and that the mother and father each do all acts and things necessary to record that change of name with the New South Country G Registry of Births, Deaths and Marriages and to obtain a new passport for the child.

2. There has never been an order for a new birth certificate to be issued for the child.  Nonetheless, the mother applied to the Registry of Births, Deaths and Marriages for the issue of a new birth certificate in the name of “Patsiokis-Johnetta” in 2009.  Unsurprisingly the father objected to this unilateral action and sought to maintain the original registration in the name “B Patsiokis”.

3. In my view the mother advanced no valid reason in support of her application for the child’s birth certificate to be re-issued in the name “Patsiokis-Johnetta”.  She maintained that such was the Court’s intention in 2008 but the wording of the order simply does not support that proposition.  The only other justification which the mother proffered was that the child told Ms O that she was “confused” by the father’s statement to her that “her name is not [B Patsiokis-Johnetta], rather her real name is [B Patsiokis]”.

4. The child made this statement to Ms O at some time prior to 15 October 2010 in an unknown context.  I cannot say what influence, if any, the mother exerted on the child to make this statement to Ms O.  In any event she is now almost two years older and there is no current evidence that she experiences any confusion concerning her name.

5. In my view, if the Federal Magistrates Court intended to cause the issue of a new birth certificate the orders of 12 September 2008 would have so stated in clear terms.  Nothing now persuades me that I should interfere with this order.

6. The mother sought orders which would permit her to take the child to Europe for two periods per year each of no more than three weeks.  The father was prepared to consent to this order on condition that he also is permitted to take the child overseas.

7. It seems to me that each proposed trip should be considered on its merits but the parties should bear in mind that the Court has the power to impose a cost penalty if consent is unreasonably withheld.  In particular, the father would be well advised to bear in mind that the maternal family lives in Country G and the mother has travelled to Europe on several occasions and returned the child without incident.

I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 13 July 2012.

Associate:

Date:  13 July 2012