Joyce and Bayden

[2016] FCCA 804

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOYCE & BAYDEN [2016] FCCA 804

Catchwords:
FAMILY LAW – Parenting – when overnight time should begin – intractable conflict between parents – where matter is complex because of parents inability to communicate and apparent lack of insight – transfer to Family Court of Australia because trial to last more than four days.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3)

Applicant: MR JOYCE

Respondent: MS BAYDEN

File Number: MLC 97 of 2015

Judgment of: Judge Small

Hearing date: 21 March 2016

Date of Last Submission: 21 March 2016

Delivered at: Melbourne

Delivered on: 22 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Szabo

Solicitors for the Applicant: Peter Szabo Family Law

Counsel for the Respondents: Mr Howe

Solicitors for the Respondents:	RRR Lawyers
Counsel for the Independent Children's Lawyer:	Mr Mulvany
Solicitors for the Independent Children's Lawyer:	TJ Mulvany & Co

ORDERS

1. That the interim parenting Orders of the 24^th June 2015 be discharged.

   (a)That the Applicant father and the Respondent mother exercise shared parental responsibility for their child X born (omitted) 2014 (“X”).

   (b)For the purpose of discharge of shared parental responsibility and for certainty, each of the parents shall disclose to each other and to the Independent Children’s Lawyer by email the location of any childcare facility attended by X and for such purposes, each of the parents, for himself, herself, their respective servants and agents (including but not limited to family members) be and are hereby restrained by injunction from informing any servant or agent of the childcare facility of any substantive aspects of these proceedings, any assertions and/or allegations and/or conclusions in relation to the health and/or allied health of either parent and/or any other matter save and except for the immediate health of X and/or the immediate physical health of either parent.

   (c)Both parents, by themselves, their respective servants and agents (including but not limited to family members) shall comply with all reasonable and proper directions of the Director or a Delegate of the Director of X’s childcare centre in relation to the operational policies and procedures of the centre. 

   (d)In the event of X at any time being an in-patient of any hospital (including day hospital), both parents, and their respective servants and agents (including any member of his or her family) shall be at liberty to visit X and shall comply with all directions of the Manager or delegate of the Manager of such hospital, including but not limited to the mode and frequency of communication with professional staff attending upon X, times of visitation to X and the manner in which information as to any condition and/or treatment of X is communicated.

2. That X live with the mother.

3. That X spend time and communicate with the father as follows:-

   (a)each Wednesday, commencing 23^rd March 2016, from 11.00am until 5.00pm;

   (b)Each Thursday commencing 24^th March 2016 from 8.00am until 5.00pm. 

   (c)Subject to sub-paragraph d) hereof, each Saturday until and including 30 July 2016 from 9.00am until 6.00pm;

   (d)That X not spend any time with the father on the weekend of the 7^th and 8^th May 2016 for the purpose of X being with the mother on Mother’s Day 2016.

   (e)On the weekends of 6 August 2016 and 20 August 2016 from 5.00pm on Saturday until 10:00am on Sunday;

   (f)On the weekends of 3 September 2016 to and including 29 October 2016 from 12.00noon on Saturday until 10:00am on Sunday.

   (g)On the weekends of 12 November 2016 to and including 31 December 2016, from 12 noon on Saturday until 5:00 p.m. on Sunday;

   (h)Thereafter, on each alternate weekend from and including 14 January 2017 from 10:00 am on Saturday to 5:00 p.m. on Sunday.

   (i)Notwithstanding anything before contained in these Orders X shall spend 4 hours on her birthday with her father by agreement and failing agreement from 2:00 p.m. to 6:00 p.m. 

   (j)For the purposes of X celebrating Father’s Day with the father, and for the avoidance of doubt X shall spend time with the father from 9.00am until 6.00pm on Father’s Day should it not fall on a weekend when she is otherwise spending time with him pursuant to these Orders.

   (k)For the purpose of X spending time with each parent at Christmas, in the absence of written agreement X shall spend time with the father from 9.00am on the 24^th December until noon on the 25^th December 2016.

   (l)At such further or other times as shall be agreed between the father and the mother in writing.

4. Strictly for the purposes of these interim Orders:

   (a)On every occasion upon which X is spending overnight time with the father, the father shall be in full and constant attendance from the commencement of time for the first six overnight periods, and thereafter from 7:00 p.m., until such time as X in her customary sleeping pattern wakes the following day, is clothed and has completed breakfast, and in the event that the father is not so able to be so in attendance the father shall ensure that the mother is informed and arrangements are made for the return of X to the mother. 

   (b)Both parents shall ensure that on commencement of X spending overnight time with the father, she shall be accompanied by such soft toy, attachment rug or like clothing or item (if any) to which X is attached for the purposes of overnight sleeping, and each parent shall ensure that that item accompanies X to and from each parental household on each occasion. 

5. For the purposes of changeover, the following shall apply:

   (a)Each of the parents shall forthwith make application to, complete all necessary forms, attend all interviews, and otherwise do all acts and things necessary for the purposes of obtaining the assistance of the Berry Street Children’s Contact Service (omitted), to assist in changeover of X from one parent to the other.  Each parent through their lawyers shall keep the other parent’s lawyer and the Independent Children’s Lawyer fully informed of the progress of the relevant application.

   (b)Until such time as the family has been accepted into the changeover facility of the Berry Street Children’s Contact Service, when X is in attendance in childcare or the Berry Street Contact Children’s Service is not available on specific days, X is to be delivered to and collected from the foyer, (omitted) Police Station or her childcare centre, whichever is applicable. 

   (c)Subject to any lawful directions from the Manager or delegate of the Manager of any one or more of the Childcare Centre or the Berry Street Children’s Contact Service and/or any Police Officer stationed at the (omitted) Police Station and made in accordance with that organisation’s operational policies and procedures, the parents shall allow X to be collected and returned by any adult person or persons known to X provided always that in the event that X is being transported in a motor vehicle the person so transporting X holds a current licence to drive in the State of Victoria and the vehicle is fitted with an age-appropriate child restraint.

   (d)Neither parent nor any servant or agent of such parent (including any family member), shall be permitted to film and/or record any interaction between the parents and X or others in attendance at changeover.

6. Both parents, by themselves, their servants and agents (including family members) be and are hereby restrained by injunction from insulting, belittling, denigrating, criticising, or otherwise being offensive to the other and/or any family member or any one present at changeover, or attempting so to do in the presence and/or hearing and/or presence of X.

1. That the father purchase an appropriate book to be designated a “Communications Book” into which brief and distinct information and messages are recorded by each parent, and by each parent only, such messages to be restricted to information about X’s immediate day to day needs including but not limited to illnesses, sleep patterns, symptoms of illness, immediate distress, injuries, health issues, appointments, and any request for immediate variation to the time which X spends with each parent  and each parent is restrained from including in the Communications Book communications which are critical of the other parent and/or that other parent’s style of parenting.

1. In the event that either party intends to travel interstate with X he or she shall provide to the other party 14 days’ notice of such travel.

1. In the event that the parties are unable to agree on any aspect of the exercise of their shared parental responsibility, they shall attend a registered family dispute resolution practitioner of their joint choice, and in the absence of agreement Relationships Australia, for the purpose of mediation in relation to that dispute.

2. The parties, by themselves their servants and agents, are hereby restrained by injunction from publishing or causing to be published on the Internet any photographs, video material, information, or any other thing in relation to these proceedings or any of the subject matter herein.

3. The Independent Children’s Lawyer be at liberty to provide a copy of these Orders to and discuss their provisions with, The Manager or other delegate of Berry Street Children’s Contact Service, the Manager or other delegate of X’s child care centre, and the Officer-in-Charge or other delegate at (omitted) Police Station.

4. Upon Mr V providing a tax invoice to the parties in relation to his preparation for and telephone appearance at the hearing on 18 March 2016, the parties shall each pay half of the amount stated thereon within 14 days, and Victoria Legal Aid is requested to extend funding to the mother for the purpose. 

5. The parties and the independent children’s lawyer shall have liberty to apply at short notice.

6. Pursuant to section 39 of the Federal Magistrates Act1999, these proceedings are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.

AND THE COURT NOTES:

That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 97 of 2015

MR JOYCE

Applicant

And

MS BAYDEN

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The matter of Joyce and Bayden comes before me today for judgement as a result of an interim hearing part heard on Friday, 18 March 2016 and continuing to its conclusion yesterday, 21 March 2016.

2. The subject of these proceedings is X who was born on (omitted) 2014, and who is therefore approaching 20 months of age. X lives with her mother, Ms Bayden, who is an (occupation omitted) by profession and spends time with her father, Mr Joyce, who is a (occupation omitted).

3. The parties cohabited from 2009 and were married in (omitted) 2013. They separated on 20 December 2014 following a physical altercation which took place not only in X’s presence, but involving her.

4. There have been multiple intervention order proceedings between them.

5. This is an extremely high conflict parenting matter. I think the Independent Children’s Lawyer, Mr Mulvany, put it best when he said that if one party said “black” the other party would automatically say “white”. Both parties are well educated professionals who, one imagines, in any other circumstance, would be able to listen to the other side of a debate and to put his or her case in a thoughtful and measured manner.

6. However when it comes to their parenting relationship, while each has compromised his or her position from that presented to the Court at the beginning of this hearing, it is clear that that relationship is conflictual, toxic and highly volatile. There are allegations of coercive and controlling behaviour, of physical assault, of verbal abuse and other forms of family violence as defined by the Family Law Act 1975.

7. At this hearing the disputes were quite narrow as a result of the Independent Children’s Lawyer having prepared a minute of the orders he sought after hearing the evidence given by telephone by Mr V, a psychologist specialising in family issues who had provided family reports in this matter. That evidence was given on the afternoon of 18 March, last Friday. As a result of hearing that evidence, the Independent Children’s Lawyer changed his position slightly and provided a comprehensive minute of orders sought to counsel for each party later that day.

8. As far as I understand it, neither party made any response to the Independent Children’s Lawyer in relation to his proposal before the matter came before me at 11.00am yesterday morning.

9. At the beginning of the hearing yesterday morning, the areas of dispute between the parties were identified with reference to the proposed orders of the Independent Children’s Lawyer, most of which were supported by Mr Joyce.

10. The major dispute at this hearing surrounds the question of when X’s time with her father should progress to overnight time.

11. It is Ms Bayden’s position that X should not progress to overnight time with her father until she attains the age of 2 years in (omitted) 2016. That has been Ms Bayden’s position since yesterday morning after she had amended her view from 3 years to 2 years upon hearing the evidence of Mr V.

12. It was the position of Mr Joyce and the Independent Children’s Lawyer at the beginning of the hearing that overnight time ought to begin immediately. However, upon hearing Mr V’s evidence the father adopted the amended position of the Independent Children’s Lawyer, which was that overnight time should commence once X attains the age of 20 months. I note that X will attain the age of 20 months in just under 2 weeks, so in terms of practicalities, the position of the father and the Independent Children’s Lawyer has not changed very much at all.

13. When Mr V gave evidence by telephone on Friday last, he said very clearly that he thought that as a general rule, children were ready to spend overnight time with the non-resident parent at the age of between 20 and 24 months. He stuck to that position under some quite vigorous cross-examination from counsel for Ms Bayden, who referred Mr V to the affidavit of Dr J, who had taken a more psychoanalytic view of the matter saying that he thought a more cautious approach to the question of X spending overnight time with Mr Joyce was called for, although he did not recommend a particular age at which it should begin. Mr V said that he thought Dr J’s report did not take current research about child development into account and that his view was based on psychoanalytic theory with which Mr V clearly did not agree. However Mr V made a very salient point: of all the experts who have provided affidavits to the court in this matter, he is the only one who has seen both parents and X, the implication being that his view is a comprehensive one while others have expressed views based on less than comprehensive data. I think that point has some force.

14. Ms Bayden says that X does not yet sleep through the night, waking 2 or 3 times and needing to be settled before she can go back to sleep. She says that X needs more time to develop skills which will allow her to separate from her mother without anxiety and that the court ought to be cautious in making orders for overnight time before X is 2 years old. She also says that her own anxieties about X spending overnight time with her father ought to be taken into account, and that she believes her anxieties would be alleviated if given a certain time some months into the future when X would begin her overnight time with her father. She says that the alleviation of her anxieties over that time would flow through to alleviate any anxieties X herself might be feeling and/or she might be picking up from Ms Bayden.

15. Her counsel pointed to her allegations of coercive and controlling behaviour on the part of Mr Joyce, saying that if I were to accede to Mr Joyce’s proposal, Ms Bayden would feel as though this was yet another way in which Mr Joyce had been able to control her. It is somewhat disturbing to the court that Ms Bayden would see a decision of the court as being an act of Mr Joyce.

16. Mr Joyce and the Independent Children’s Lawyer say that overnight time should begin in about 2 weeks, and that postponing the date for commencement of that time will only allow Ms Bayden to develop further anxieties of her own in relation to separating from X. It was the submission of the Independent Children’s Lawyer that the sooner X’s mother had to grapple with that issue, the sooner X could settle into a routine of overnight time with her father. That submission was supported by counsel for Mr Joyce. Although it was not put in these particular terms, I would liken the submission to a situation where the orders sought would force Ms Bayden to jump into a pool of cold water, which would allow her to become accustomed to the temperature of the water much sooner than if she were asked to perform that activity some months in the future, anticipating the coldness of the water all the while. I am not persuaded by that submission.

17. So, put succinctly, the dispute is whether X should begin overnight time with her father in approximately 2 weeks or in about 4 ½ months.

18. This is not a mathematical exercise. If it were, it would be simple to say that if Mr V says the age between 20 and 24 months were the most appropriate, then overnight time should begin when X reaches the age of 22 months. This is a matter where not mathematics but X’s best interests must be my paramount consideration.

19. X is almost 20 months old. She has not yet spent overnight time with her father, although she has spent frequent and significant daytime in his care. She lives with her mother as her primary carer, and factors which affect her mother’s parenting ability should certainly be taken into account, among many others which are set out in section 60CC of the Family Law Act 1975. I do not intend to address each and every subsection of section 60CC, but the salient ones in these proceedings are, I believe, the following:

20. Section 60CC(2) sets out the primary considerations as follows:

    Primary considerations

    The primary considerations are:

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

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

    In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

21. Section 60 CC(3) then sets out 14 additional considerations, of which the most relevant ones are:

    Additional considerations are:

    (a)     the nature of the relationship of the child with:

    (b)     each of the child’s parents; and

    (c) other persons (including any grandparent or other relative of the child);

22. All the evidence in this matter shows that X has a close and loving relationship with both her parents, that both love her dearly and want only what is best for her. The only concern the court has about those relationships is the deep-seated and seemingly intractable conflict between the parents, conflict which X has been exposed to and involved in ever since the parties separated.

    the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

    (a)     to participate in making decisions about major long term issues in relation to the child; and

    (b)     to spend time with the child; and

    (c) to communicate with the child;

1. The very toxic conflict between the parties is evidence in itself of the fact that both wish to participate in making decisions about X’s life, and while there is some dispute between them in relation to the extent of the other’s involvement in X’s early life, the very fact of the proceedings and the evidence produced in them shows that at least since separation both parties have sought to spend time and communicate with X as much as possible.

   (a)     the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (b)     either of his or her parents; or

   (c) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

2. In his evidence on Friday, Mr V said that there was “nothing remarkable” about X’s present time with her father, that time being up to 9 hours on 2 to 3 days per week, which is in line with the recommendations made in his reports. It was his view that despite the high conflict between her parents, X was a delightful child who was meeting all of her developmental milestones.

3. Clearly, a change to overnight time is a significant change in X’s circumstances, and there is no doubt that it will take time for X to become used to sleeping away from her mother overnight. It was Mr V’s view that transitional difficulties are normal and even healthy, but that if X is able to seek her father out for comfort when distressed, and he is able to reassure her, then she ought to adjust to the change appropriately.

   the capacity of:

   (a)     each of the child’s parents; and

   (b)     any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

4. Both parents are well educated professionals and there is little doubt that each has the capacity to provide for X’s intellectual needs.

5. However the very serious conflict between them, and their apparent inability to let go of their own convictions that they each know best in relation to X’s development, does not augur well for them being able to meet X’s emotional needs.

6. What she needs, according to Mr V, is a consistent, stable and predictable routine in her life. He says that in matters such as this where conflict and tension are high, it is very difficult for children because a child does not have the verbal or cognitive ability to make sense of that conflict.

7. X has not just been exposed to the conflict between her parents, she has lived with it daily since their separation. If that conflict cannot be resolved and X continues to live with its effects on a daily basis into her childhood and adolescence, there is little doubt that she will grow up uncertain about her place in the world and with diminished ability to form relationships of her own.

8. Mr V was clear in his evidence that rather than focusing on the extent to which each is right, the parents should be focusing on what X actually needs.

   the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

9. Given the very high level of conflict in this matter, neither of the parties appears to the court to be very emotionally mature, being more concerned about their own feelings than about their daughters emotional welfare.

10. Both come from an (nationality omitted) background and X therefore has appropriate opportunity to follow the cultural traditions of both.

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

11. In reading the affidavit material of the parties and the various expert reports provided on all sides, one cannot help but wonder whether X’s parents see her not as person in her own right, with her own personality, likes and dislikes, interests and talents, but as a prized object to be won or lost in competition with the other parent. That is not an attitude likely to produce an outcome that is in the best interests of this child.

12. Mr Joyce, as I have said, is a (occupation omitted) by profession and Ms Bayden is an (occupation omitted). It would be tragic for their daughter if they saw her in the same light as they see their (occupation omitted).

13. It is parents’ responsibility, as far as they are able, to make the world safe for their child and to teach the child what it is to be a functioning and responsible child/adolescent/adult in their community.

14. That these parents appear to put the conflict between them ahead of that role in teaching their daughter those lessons, does not impress the court as a positive attitude to the responsibilities of parenthood.

    any family violence involving the child or a member of the child’s family;

15. There are various allegations on both sides of serious acts of family violence including physical, emotional, and financial abuse, and psychological violence in the form of coercive and controlling behaviour. Whether those allegations are true is a matter for decision at trial, when all evidence can be tested thoroughly through cross-examination of both parties in the witness box.

16. However those allegations are very serious and ultimate findings about those matters at trial will have a very serious influence on any final orders the court makes in relation to X’s care arrangements.

    if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

    (a)the nature of the order;

    (b)the circumstances in which the order was made;

    (c)any evidence admitted in proceedings for the order;

    (d)any findings made by the court in, or in proceedings for, the order;

    (e)any other relevant matter;

17. The history of the intervention orders taken out by both Victoria Police and each of the parties since separation in December 2014 is somewhat confusing when one reads the parties’ affidavits.

18. Suffice it to say that after the resolution/finalisation of the applications made by Victoria Police, there appear to be mutual intervention orders between the parties.

19. From the fact that the original applications were made by Victoria Police I can infer that the altercations which led to them were serious.

    any other fact or circumstance that the court thinks is relevant.

20. It is under section 60CC(3)(m) that I have considered Ms Bayden’s anxieties and their effect on X. In my view, the less anxious X’s primary carer is, the less anxious X is likely to be. I do not accept the “jumping in at the deep end” argument in relation to this matter.

21. Having taken all of those matters into account, noting that none of the serious allegations have been tested in this court, I will make an order that X commence overnight time with her father from 6 August 2016.

22. I now return to the other orders proposed by the Independent Children’s Lawyer and the parties’ response to those orders. I will address each dispute and give my decision in relation to each in turn, having in mind all of the matters set out under section 60 CC.

23. The first of the further proposals by the Independent Children’s Lawyer to be disputed by one of the parties was that the party should “comply with all reasonable and proper directions” of X’s child care centre “in relation to all matters including but not limited to attendance upon X at childcare, collection from and return of X to childcare”.

24. The mother essentially says that the wording of that order delegates judicial authority to the directors of X’s child care centre and the paragraph ought to be deleted. At the hearing the Independent Children’s Lawyer clarified that it was certainly not his intention to have the childcare centre’s directors make any decisions which might be considered judicial in nature, and that he merely wished to ensure that the parties’ attendance at the childcare centre was not marred by conflict between them.

25. I agree that the original wording of the order could be said to delegate to the directors of the childcare centre questions of changeover, decisions about which certainly fall into the realm of judicial decision making. In those circumstances I will reword that order to provide that the parties comply with all reasonable directions of the childcare centre in relation to the childcare centre’s operational policies and procedures.

26. I will also reword the proposed order in relation to staff members at the Berry Street Children’s Contact Centre and the police in attendance at the (omitted) police station in similar terms.

27. Paragraph 4 of the Independent Children’s Lawyer’s proposed orders sets out a regime of time to be spent between X and her father. There are 13 subclauses set out in that paragraph and the regime provides for overnight time to begin on 9 April 2016 and graduate to 9.00am Saturday to 6.00pm on Sunday each alternate week from 28 May 2016.

28. At the hearing, Ms Bayden’s counsel indicated that she did not agree with that regime and that she wanted a whole new order in relation to the father’s time with X. Counsel for Ms Bayden handed up a marked up copy of the orders proposed by the Independent Children’s Lawyer containing changes sought by her and the changes to paragraph 4 were extensive.  They provided for a much more graduated regime of time to a situation where X would spend time with her father every alternate weekend from 5.00pm on Friday to 5.00pm on Sunday and each alternate Thursday from 10.00am to 4.30pm from March 2017. 

29. I have already decided that overnight time should not begin until after X’s second birthday in (omitted) 2016.

30. Other than some submissions from the mother’s counsel that the time ought to be carefully graduated, I do not recall any specific argument about the particular regime to be ordered and I will therefore make orders for a graduated regime that will have X spending 10.00am on Saturday to 5.00pm on Sunday with her father on each alternate weekend from December 2016.

31. Because X is so young and needs to spend frequent periods of time with both parents in order to develop clear and lasting emotional images of them in her mind, I will keep the two midweek days of time pending trial.

32. In addition to the times specified in the proposal of the Independent Children’s Lawyer, the mother sought an order that X spend time with her father on Father’s Day between 9.00am and 5.30pm with a reciprocal order to be made in relation to Mothers’ Day. Mother’s Day and Father’s Day are important days in our community’s calendar and I will make those orders so that X spends Father’s Day with the father and Mother’s Day with her mother.

33. Mr Joyce is content for the regime set out in the Independent Children’s Lawyer’s proposal to be made into orders.

34. Paragraph 5.1 of the Independent Children’s Lawyer’s proposed orders provides that “on every occasion upon which X is spending overnight time with the father, the father shall be in full and constant attendance from 7.00pm each evening until such time as X in her customary sleeping pattern wakes the following day is clothed and has completed breakfast”.

35. The mother sought that that paragraph be changed so that the father was obliged to be in “full and constant attendance” from the commencement of his time with X rather than 7.00pm. Her proposal would mean that the father would be obliged to pick X up from the children’s contact centre on each and every occasion when X was spending overnight with him rather than the pickup being performed by another member of his family.

36. Mr Joyce agreed with the Independent Children’s Lawyer’s proposal but wished to have an exception for emergencies and changeover.

37. When X begins spending time with her father overnight, it will be very important that he is in “full and constant attendance” from the beginning of that time until the next morning, at least until X is settled and familiar with that regime. I accept that there may be times when Mr Joyce may not always be available to pick X up and when X is settled and familiar with the regime I propose that other family members known to X should be able to collect her.

38. Therefore I will make an order that for the first 6 times that X sleeps overnight in her father’s care, her father be in “full and constant attendance” from the commencement of the time period, and that thereafter he be in “full and constant attendance” save for genuine emergencies and changeover.

39. There was a dispute between the parties about which police station should be the place of changeover until Berry Street Children’s Contact Centre in (omitted) can provide a supervised changeover service or when that service is unavailable. The mother sought that changeover be at (omitted) police station whereas the Independent Children’s Lawyer and the father proposed the (omitted) police station. I note that the parties have been conducting changeover at a police station until these orders, and that they have informed the court that Berry Street will be able to facilitate changeovers from next week. In those circumstances there are only a few changeovers that will need to take place elsewhere and I will make an order for the changeover point to be the (omitted) Police Station as it is more equidistant between the parties’ residences.

40. The parties agree with the Independent Children’s Lawyer’s proposal in relation to the keeping of a communications book although the father sought that that proposal should apply to both parties and the mother wished to have X’s sleeping patterns added to matters to be addressed by the parties in that book. I propose to add both amendments to that order so that communication between the parties through the communications book is as comprehensive and relevant as possible.

41. In addition to the orders sought by the Independent Children’s Lawyer, the mother sought an order that the parties provide each other with at least 28 days’ notice of any interstate travel involving X. The father was content to give notice but sought that it be of at least 14 days. In my view 14 days is enough notice to be given of interstate travel and I will make that order accordingly.

42. A further order sought by the mother was that in the event that the parties were unable to agree about any specific matter in relation to decisions about the exercise of their agreed shared parental responsibility, they should attend mediation through Families Australia or a similar organisation. It was the father’s submission that any such assistance the parties seek in that circumstance should be sought from Mr V as he is familiar with the parties and X and these proceedings.

43. It is my view, that as Mr V is an expert witness in this matter, it is not appropriate for him to step out of that role and into the role of family dispute resolution practitioner. I will therefore make the order in terms sought by the mother.

44. The parties are agreed that there ought be a further order preventing them from publishing any material about these proceedings or their subject matter on the Internet and I will make that order.

45. Another matter raised by the independent children’s lawyer was that Mr V is seeking witness expenses for his preparation for and appearance by telephone at this hearing on Friday, 18 March 2016. The Independent Children’s Lawyer informed the court that Mr V was seeking $500 plus GST for reading the material and $500 plus GST for his “appearance” at court. That amounts to a sum of $1100 in total and it is appropriate that those costs be paid by the parties equally.

46. In all of the above circumstances I make the following orders, which are largely based on those proposed by the independent children’s lawyer but with amendments as discussed above.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 22 March 2016