K v K

[2006] FamCA 661

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT No. SYF3339 of 2003

IN THE MATTER OF:	K	Father
AND	K	Mother

REASONS FOR JUDGMENT

CORAM:	O’Ryan J
DATE OF HEARING:	17 March 2006, 8 May 2006, 15 June 2006, 4 July 2006, 10 July 2006.
DATE OF JUDGMENT:	25 July 2006

APPEARANCES:

Ms Bateman of Counsel	(instructed by Rowan Solicitors, Level 1, 155 Castlereagh Street, Sydney NSW 2000) appeared on behalf of the Mother.
Mr Frakes	Solicitor of Watts McCray Lawyers, DX 11517 Sydney, appeared on behalf of the Father.
Ms Adams	Solicitor of Legal Aid Commission of New South Wales, appeared as the Independent Child Lawyer.

Introduction

Before me for hearing are applications for final parenting orders and appeals against costs orders. The Applicant is Ms K and the Respondent is Mr K. The proceedings involve the parenting of a child of the marriage born in 1996. The proceedings were commenced in the Local Court (Family Matters). The hearing before me commenced on 17 March 2006 and was conducted in accordance with Practice Direction No. 3 of 2005.
In the parenting proceedings an Independent Child Lawyer appeared. I also had the benefit of evidence from a Court Expert, Ms B, Psychologist.
There is also an appeal by the Mother against an order for costs made in the Local Court in early 2005 and an appeal by the Father against an order for costs made by a Judicial Registrar on 31 May 2006.
The Father is a public servant employed by the State Government. The Mother owns and operates her own business.
The child resides with the Mother and spends time with the Father.
I am going to set out in full the orders sought by each parent and the Independent Child Lawyer for reasons that will become apparent. During the hearing the Mother’s application was to reduce the time the child spends with her father and did not provide for any over night periods. The Mother did concede that special days are important and provided they did not become over night visits, she was in agreement. However. the Mother now seeks the following parenting orders:
“1.     All previous parenting Orders are vacated.
2.      Order 6. made in the Local Court (Family Matters) of New South Wales on […] 2005 is vacated.
3.      The mother and the father have equal shared parental responsibility for all decisions about major long term issues in relation to the child, [X], born […] 1996, hereinafter referred to as ‘[X]’.
4.      Subject to any other Order herein, the father shall have the sole responsibility for making decisions in relation to [X] on issues that are not major long term issues during periods when [X] is spending time with the father.
5.      Subject to any other Order herein, the mother shall have the sole responsibility for making decisions in relation to [X] on issues that are not major long term issues during periods when [X] is spending time with the mother.
6.      [X] shall live with the mother.
7.      That the father spend time with [X] as follows:
(a)During school terms, each:-
(i)Tuesday from the conclusion of school until 6.30 pm,
(ii)Alternate:
·Friday from the conclusion of school until 8.00 pm, and
·Saturday from 9.30 am until the following Sunday at 4.00 pm; this time shall commence on the Saturday immediately after the Friday that is referred to in sub-sub-Order 7.(a)(ii),
(b)During the first half of all school holidays, the father shall spend time with [X] from 9.30 am to 6.30 pm on each day.
(c)Each:
(i)New Years Day,
(ii)Christian Good Friday,
(iii)Christian Easter Sunday,
(iv)[…] Orthodox Easter Sunday, and
(v)Christmas Day,
from 9.30 am until 12.00 noon.
(d)Each Fathers Day from 9.30 am until 4.00 pm.
(e)Each:
(i)[…] Orthodox Good Friday,
(ii)[the father’s birthday],
(iii)[X’s birthday], and
(iv)[the father’s Name Day],
from 3.15 pm to 6.30 pm.
(f)Two hours prior to the commencement of all Christenings, weddings, engagements, funerals and birthday parties of Immediate Family Members of the Father, hereinafter referred to individually as a ‘Paternal Family Function’, until 1 hour after the father leaves the respective Family Function, unless the time that the father leaves the family function is after 8.00 pm, when the father shall spend time with [X] until 9.30 am on the following day. This sub-Order shall have no operation unless the father provides the mother with written notification of the commencement time of the Paternal Family Function at least 4 days prior to the commencement time of the Paternal Family Function.
8.      Order 7. above shall be suspended:
(a)Two hours prior to the commencement of all Christenings, weddings, engagements, funerals and birthday parties of Immediate Family Members of the Mother, hereinafter referred to individually as a ‘Maternal Family Function’, until 1 hour after the mother leaves the respective Maternal Family Function, unless the time that the mother leaves the Maternal Family Function is after 8.00 pm, when Order 7. above shall be suspended until 9.30 am on the following day. This Order shall have no operation unless the mother provides the father with written notification of the commencement time of the Maternal Family Function at least 4 days prior to the commencement time of the Maternal Family Function.
(b)On each:
(i)[the mother’s birthday] from 3.15 pm to 6.30 pm, and
(ii)Mother’s Day from 9.30 am until 4.00 pm.
9.      The father shall spend such further or reduced time with [X] as is agreed to, in writing, between the mother and the father.
10.     On a day when the father is to spend time with [X] and [X] attends school on that day, the father shall arrange for the collection of [X] from school at the time that the father is to commence spending time with [X].
11.     On a day when the father is to spend time with [X] and [X] does not attend school on that day, the mother shall arrange for the delivery of [X] to the father’s residence at the time that the father is to commence spending time with [X].
12.     The mother shall arrange for the collection of [X] from the father’s residence at all times that the father is to cease spending time with [X].
13.     The arrangements for the collection and delivery of [X], as otherwise provided for in these Orders, may be modified by agreement, in writing, between the mother and the father.
14.     In the event that a Sporting Fixture, Training Session or Social Function, other than a Maternal Family Function or Paternal Family Function, occurs at a time when [X] is spending time with the:
(a)father, the father, and
(b)mother, the mother,
shall do all things necessary and reasonable to ensure that [X] attends the Sporting Fixture, Training Session and Social Function unless [X] specifically indicates that [X] does not wish to attend the respective Sporting Fixture, Training Session or Social Function.
15.     The:
(a)mother shall do all things necessary and reasonable to ensure that the father, and
(b)father shall do all things necessary and reasonable to ensure that the mother,
is informed of all Sporting Fixtures, Training Sessions and Social Functions.
16.     Whilst [X] is:
(a)spending time with the father, or
(b)in the father’s care,
the father shall not:
(c)leave [X] alone with the father’s brother, [Mr C], and take all reasonable precautions to ensure that [X] is not harmed physically by the father’s brother, [Mr C], and
(d)take possession of or interfere with any mobile telephone that is in [X’s] possession.
17.     In the event that [X] indicates to the father, whilst [X] is:
(a)spending time with the father, or
(b)in the father’s care,
that [X] wishes to communicate with the mother, the father shall do all things necessary and reasonable to facilitate communication occurring between [X] and the mother, in accordance with the wishes that were indicated to the father by [X].
18.     In the event that [X] indicates to the mother, whilst [X] is:
(a)spending time with the mother, or
(b)in the mother’s care,
that [X] wishes to communicate with the father, the mother shall do all things necessary and reasonable to facilitate communication occurring between [X] and the father, in accordance with the wishes that were indicated to the mother by [X].
19.     Each party shall:
(a)keep the other party reasonably informed of [X’s] general state of health, including but not limited to:
(i)notifying the other party, within 7 days, of taking [X] to any doctor or medical professional, and
(ii)providing the other party with any medical report that the party receives in respect of [X], within 7 days of receipt of that medical report, and
(b)advise the other party in the event that [X] suffers:
(i)a serious illness, or
(ii)an injury,
whilst in that party’s care.
20.     Each party is enjoined from:
(a)arguing with, abusing, belittling or demeaning the other party in the presence or hearing of [X],
(b)making any derogatory remarks about:
(i)the other party,
(ii)members of the other party’s family, and
(iii)the partner of the other party, and
(c)removing, or attempt to remove, [X] from the Commonwealth of Australia.
21.     Both parties are enjoined from changing [X’s] name either formally or by usage.
22.     Both parties are permitted to provide a copy of these Orders to any school that [X] attends.
23.     The father pay the mother’s costs of and incidental to these proceedings and to the proceedings held in the Local Court (Family Matters) of New South Wales […].
24.     The mother and father shall not, without leave of a Court having jurisdiction under the Family Law Act 1975 (Cth), institute Family Law Act 1975 (Cth) proceedings against the other party.

NOTATIONS

The Court notes that, for the purposes of these Orders:
A. ‘Immediate Family Members of the Mother’ means:
(a)the mother,
(b)[E], [X’s] sister,
(c)[Ms F], [X’s] maternal grandmother,
(d)[Ms G], [X’s] aunt,
(e)[Ms G’s] married de jure or de facto partner,
(f)[Mr H], [X’s] uncle,
(g)[Ms J], [X’s] aunt,
(h)[L], [X’s] cousin,
(i)[M], [X’s] cousin,
(j)[N], [X’s] cousin,
(k)[P], [X’s] cousin, and
(l)all descendants of the above mentioned persons.

B. ‘Immediate Family Members of the Father’ means:
(i)the father,
(ii)[Ms Q], [X’s] paternal grandmother,
(iii)[Mr S], [X’s] paternal grandfather,
(iv)[Mr S], [X’s] uncle,
(v)[Mr S’s] married de jure or de facto partner,
(vi)[Ms T], [X’s] aunt,
(vii)[Mr U], [X’s] uncle,
(viii)[V], [X’s] cousin,
(ix)[W], [X’s] cousin,
(x)[Y], [X’s] cousin,
(xi)[Mr C], [X’s] uncle,
(xii)[Mr C’s] married de jure or de facto partner, and
(xiii)all descendants of the above mentioned persons.

C.     ‘Sporting Fixture’ means an event that is to be held at a time and on a date that has been arranged in advance in a sport that [X] is registered.
D.     ‘Training Session’ means practice for a sport that is to be held at a time and on a date that has been arranged in advance in a sport that [X] is registered.
E.     ‘Social Function’ means a social event that is to be held at a time and on a date that has been arranged in advance that [X] has been informed of by written invitation or school newsletter.

The Father seeks the following parenting orders:
“1.     That the parenting Orders made by the Family Court of Australia at Sydney on 6 April 2004 be vacated.
2.      That pursuant to s.61DA the parents have equal shared parental responsibility in relation to the child of the marriage, namely –
[X] born […] 1996.
3.      Subject to Orders 8 – 16 below, that each party shall individually have the sole responsibility for making decisions concerning other aspects of care, welfare, development and parental responsibility of the child on a day to day basis during periods when [X] is spending time with either of them.
4.      That pursuant to s.65DAA(2) [X] shall spend substantial and significant time with the Father as follows:
4.1Pursuant to s.65DAA(3)(a)(i) that during school term [X] shall spend time with the Father each alternate weekend commencing from the conclusion of school on Friday to the commencement of school on the following Monday and extending to the commencement of school on the Tuesday if the Monday is a public holiday or pupil free day, such time shall commence the first weekend after the start of each school term if [X] spends time with the Father in the first half of the previous school holidays and shall commence the second weekend of the school term if [X] spends time with the Father in the second half of the previous school holiday period;
4.2Pursuant to s.65DAA(3)(a)(ii) that [X] shall spend time with the Father during school term from the conclusion of school on Wednesday until the commencement of school on Thursday in each week.

School holidays

4.3Pursuant to s.65DAA(3)(a)(i) that [X] shall spend time with the Father for half of all New South Wales school holidays as follows:
4.3.1either in the first half of the school holidays in which case the period shall commence at 5.00pm on the last day of school term and end at 12.00 noon on the middle day of such school term holidays, or
4.3.2in the second half of the school holidays in which case the period shall commence at 12.00 noon on the middle day of such holidays and end at the commencement of the first day of school term or first day [X] is due to attend school if day one is a pupil free day;
4.3.3that the Father shall provide thirty (30) days’ prior written notice to the Mother as to which half of the school holidays he is to spend time with [X];
4.3.4that during the school holiday periods Orders 4.1 and 4.2 herein shall be suspended;
4.3.5that in the event that the Father is unable due to work commitments to spend time with [X] during school holidays in accordance with either Order 4.3.1 or Order 4.3.2 herein [X] shall spend time with the Father in accordance with Orders 4.1 and 4.2 herein.

5. Pursuant to s.65DAA(3)(a) that unless otherwise specified in these Orders [X] shall spend substantial and significant time with the Mother at all other times.

Occasions of Special Significance to the Child and to the Parent

6. That pursuant to s.65DAA(3)(b)(ii) and s.65DAA(3)(c) [X] shall spend substantial and significant time with the Father to allow them to be involved together in the following events that are of special significance to [X] and her Father:

Christmas Day

6.1[X] shall spend time with the Father from 4.00pm Christmas Eve until 12.00 noon on Christmas Day in each even numbered year commencing 2006 and in the odd numbered years commencing 2007 [X] shall spend time with the Father from 12.00 noon Christmas Day until 4.00pm Boxing Day;
6.2[X] shall spend time with the Mother from 4.00pm Christmas Eve until 12.00 noon on Christmas Day in each odd numbered year commencing 2007 and in the even numbered years commencing 2006 [X] shall spend time with the Mother from 12.00 noon Christmas Day until 4.00pm Boxing Day;

New Year’s Day

6.3[X] shall spend time with the Father from 9.30am on 31 December until 12.00 noon on 1 January in each odd numbered year and in each even numbered year [X] shall spend time with the Mother for this period;

Father’s Day

6.4That in addition to Order 4.1 herein [X] shall spend time with her Father on each weekend upon which Father’s Day falls in each year from after school on the Friday before Father’s Day to before school the Monday morning following Father’s Day;

Mother’s Day

6.5That wherever necessary that [X] shall spend time with the Mother on each weekend upon which Mother’s Day falls in each year from after school on the Friday before Mother’s Day to before school the Monday morning following Mother’s Day;

Father’s Birthday

6.6That in addition to Orders 4.1 and 4.3 herein [X] shall spend time with her Father on each day upon which the Father’s birthday falls in each year from after school on the day before the Father’s birthday to before school the next morning following the Father’s birthday or if the Father’s birthday falls on a weekend from after school on Friday until before school on Monday;

[X’s] Birthday

6.7That [X] shall spend with the Father on her birthday […] in each year between 3.00pm and 7.30pm;

[X’s] Name Day

6.8That [X] shall spend time with the Father from 3.00pm on [X’s Name Day] until 9.00am [the following day] in each year;

Father’s name Day

6.9That [X] shall spend time with the Father from 3.00pm on [the father’s Name Day] until 9.00am [the following day] in each year;

[…] Orthodox Christmas Day

6.10That [X] shall spend time with the Father from 9.00am on 7 January until 9.00am on 8 January in each year;

Additional time on the Father’s Rostered Day Off

6.11That [X] shall spend time with the Father on each of the Father’s rostered days off on no more than one (1) day per month, such time to commence from 3.00pm the day before the rostered day off and then the Father is to deliver the child to school the next morning, in which case the Father shall nominate in writing to the Mother the date of his rostered day off immediately upon his being notified of that day by his employer and shall supply to the Mother a copy of his roster and such time shall be in addition to the time referred to in Order 4.2 herein;

[…] Orthodox Easter

6.12During […] Orthodox Easter [X] shall spend time with the Father on Good Friday from 12.00 noon until 9.30am the following Saturday in odd numbered years commencing in 2007 and on Easter Sunday from 9.30am until 4.00pm in even numbered years commencing in 2006;
6.13That in the event that […] Orthodox Easter falls during a school term the time that [X] spends with her Father shall commence from the conclusion of school on Good Friday until 4.00pm Saturday in odd numbered years commencing in 2007 and from 4.00pm Saturday until before school Monday morning in even numbered years commencing in 2008;

Other Special Events

6.14That in the event that either party has a significant or special event such as a family gathering, christening or wedding then both parties shall give notice of their desire for [X] to spend time with them and attend the event and the parties shall agree in writing to vary the times that [X] is to spend with each of them to permit [X] to attend that event and where a variation of the arrangements set out in these Orders is required then the parties shall arrange for make up time.

Giving Effect to Orders

7. At the commencement of [X’s] time with the Father [X] shall be collected from the Mother’s home by the Father. At the end of [X’s] time with the Father the Mother shall collect [X] from the Father’s residence (except if the commencement or end of the time is at school in which event the parent having time with [X] shall either deliver or collect her).

Other Aspects of Care, Welfare or Development, or Parental Responsibility

[X’s] Name

8.      That both parties shall be restrained from changing [X’s] name either formally or by usage.
Medical Treatment
9.      That each of the parties are required to notify the other of any attendance by [X] on any doctor or medical professional and advise as to the need for that attendance and the outcome of such attendance and time and place of attendance.
10.     That both parties shall provide each other with any medical report they may receive in respect of [X] within seven (7) days of receipt of that medical report.

Education
11.     That both parties must agree as to whether [X] is to be absent from school on any regular school day and neither party is to remove the child from school during normal school hours without the other party’s consent.
12.     That the parties be permitted to provide a copy of these Orders to any school [X] currently attends or attends in the future.
Injunction
13.     That both parties shall be restrained from abusing, belittling or demeaning the other in the presence or hearing of [X].
Watch List
14.     That the parties or either of them be restrained from removing or attempting to remove [X] from the Commonwealth of Australia and it is requested that the Marshall of the Family Court of Australia and all officers of the Australian Federal Police give effect to this order.
15.     That the Australian Federal Police place the name of [X] born […] 1996 on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.
Passport
16.     That the parties do all acts to cause [X’s] passport to be lodged in the safe custody of the Registrar of the Family Court of Australia at Sydney and not released without the written consent of both parties or an order of a Court.
Further Therapeutic Intervention
17.     That both parties shall agree to continue family therapy including each of them and [X] with a registered psychologist and family therapist as recommended by the Court Psychologist and each party shall bear equally the costs of the said therapy.
(The husband would be content to adopt the more detailed orders as proposed by the Independent Child’s Lawyer as an alternative to Order 17 above)”

In her report the Court Expert made the following recommendations:
·          “That residence of [X] not be changed, and that all parties involved agree to give [X] a clear, consistent message that this is not under threat. This may be best done in a session facilitated by myself or another child specialist.
·          That the amount of contact between [X] and her father not be increased at this time.
·          That the amount of overnight contact [X] has with her father be reduced over the school holiday period, until [the father] can demonstrate that he can empathise with his daughter’s position, particularly acknowledging there are certain behaviours he exhibits (ie, screaming in the night, using inappropriate language with [X], displaying hostility when referring to [the mother]) which heightened fear [X] has about her father, as well as take active steps to address these behaviours through therapy or another appropriate intervention.
·          That both parents continue with therapy with myself, including joint parenting sessions and individual sessions as specified by myself. This is strongly recommended to address:
-How parents can take responsibility for their part in the ongoing conflict, and promote a more amicable post separation parenting relationship.
-[The father] developing strategies to manage his emotions in a more effective way, and develop alternate parenting strategies which are appropriate for [X] and do not risk retriggering fear and vulnerability within [X].
-[The mother] promoting firmer emotional boundaries in her relationship with [X], to avoid [X] being burdened by detail of Family Court, as well as learn to separate in a confident positive way with her daughter.
·          That [X] continue with therapy, including individual sessions, as well as sessions with her parents (when assessed as appropriate) in order to deal with trust, security and safety in these relationships.”
The Independent Child Lawyer sought orders consistent with the recommendations of the Court Expert namely:
“1.     That all previous children’s issues orders be vacated.
2.      That the parents have equal shared parental responsibility for the making of major long term decisions in relation to but not limited to the education, health, religion, culture and living arrangements of their daughter, [X] born […] 1996.
3.      That each party shall individually have sole responsibility for making decisions concerning other aspects of care, welfare, development and parental responsibility of the child on a day to day basis during periods when [X] is spending time with either of them
4.      [X] shall live with her mother
5.      [X] shall spend time with her father as follows:
5.1Each Tuesday from after school until 6:30pm
5.2Each alternate Friday from after school until 8:00pm
5.3Each alternate weekend being the weekend immediately following contact pursuant to Order 5.2 above, from 9:00am Saturday until 4:00pm Sunday
6.      Occasions of Special Significance to the Child and to the Parent
[X] shall spend time with the father to enable the attendance at events of special significance to [X] and to the father as follows:-
6.1From 4:00pm Christmas Eve until 12:00pm on Christmas Day in each even numbered year commencing 2006
6.2From 12:00pm Christmas Day until 4:00pm Boxing Day in each odd numbered year commencing 2007
New Years Day
6.3From 9:30am on 31 December until 12:00pm on 1 January in each even numbered year commencing 31 December 2006.
Fathers Day
6.4[X] shall time with her father on the weekend which includes Father Day from 9:00am on the Saturday immediately preceding Fathers Day until 4:00pm on Fathers Day
Father’s Birthday
6.5In addition to previous orders [X] shall spend time with her father on his birthday from after school on the day of his birthday until before school the following day. If his birthday falls on a weekend, then she will spend time with him from after 9:00am Saturday until 4:00pm Sunday
[X's] Birthday
6.6On […] 2006, being [X’s] birthday, [X] shall spend time with the father from 3:00pm until 7:30pm
[X's] Name Day
6.7[X] shall spend time with her father after school until 8:00pm should the name day be on a week day, and should the Name Day fall on a weekend from 9:00am until 8:00pm and otherwise by agreement between the parties
Father's Name Day
6.8[X] shall spend time with her father after school until 8:00pm should the Name Day fall on a week day, and should the Name Day fall on a weekend from 9:00am until 8:00pm and other wise by agreement between the parties
[…] Orthodox Christmas Day
6.9[X] will spend time with the father from 9:00am until 8:00pm on 7 January each year, this shall increase to 9:00am on 8 January subject to agreement between the parties or upon the recommendation of [X's] therapist
Additional Time on the Father's Rostered Day Off
6.10[X] shall spend time with the father on the father's rostered day off on no more than 1 day per month, such time to commence at 3:00pm on the day before the rostered day off and then the father to deliver the child home at 8:00pm, such order to commence at the recommendation of the [X’s] treating therapist
6.11In alternative to Order 6.10 [X] shall spend time with the father on each of the father's rostered days off on no more than 1 day per month such time to commence after school on the day before the rostered day off and the father is to deliver [X] to school the next morning. The commencement of this order is subject to the recommendation of [X's] treating therapist
6.12Pursuant to Orders 6.10 and 6.11 the father shall nominate in writing to the mother the date of his rostered day off immediately upon his being notified of that day and of his intention to exercise the said contact and shall supply the mother a copy of his roster
[…] Orthodox Easter
6.13During […] Orthodox Easter, [X] shall spend time with the father on Good Friday from 12:00pm until 9:00pm the following Saturday in odd numbered years commencing 2007, and on Easter Sunday from 9:30am until 4:00pm in even numbered years commencing 2008
6.14In the event that […] Orthodox Easter fall during school term [X] shall spend time with her father from the conclusion of school on Good Friday until 4:00pm Saturday in odd numbered years commencing 2007 and from 4:00pm Saturday until 4:00pm Sunday in even numbered years commencing 2008
Other Special Events
6.15In the event that either party has a significant or special event such as a family gathering, christening, wedding, or other special event then that party shall give notice to the other of their desire for [X] to spend that time with them and the parties shall agree in writing by text message to vary the time and where the father misses time with [X] he may elect to have make up time
7.      Mother's Day
[X] shall live with her mother on the weekend that includes Mothers Day and any order to the contrary is suspended
8.      Giving Effect to the Orders
8.1To give effect to these orders [X] shall be collected by the father at the start of his time with her:
8.1.1at school on a school day or:
8.1.2at the mother’s home on a non school day by parking outside the mothers home, remaining inside the car and sounding the car horn. [X] shall leave the mothers home and go to the fathers car alone
8.2To give effect to these orders; at the conclusion of the time the father spends time with [X]:
8.2.1the mother shall collect [X] from the fathers home by the mother parking outside the fathers home and telephoning either the father or [X] to say she has arrived and [X] will leave the fathers premises and go to the mothers car alone or;
8.2.2where the time [X] spends with her father ends on a school day, the father shall deliver [X] to school.
9.      [X's] Name
By consent both parties are restrained from changing [X’s] name, either formally or by usage
10.     Medical Treatment
10.1Each of the parties are required to notify the other of any attendance by [X] on any doctor or medical professional and advise as to the need for that attendance and the outcome of such attendance and time and place of attendance
10.2The parties shall provide to the other any medical report they may receive in respect of [X] within 7 days of receipt of that medical report
11.     Education
Each of the parties shall notify the other within 24 hours regarding [X's] non attendance for part or whole of any regular school day and the reason for that non attendance
12.     The parties are permitted to provide copies of these orders to any school [X] currently attends or shall attend in the future
13.     Injunction
Both parties are restrained from abusing, belittling or demeaning the other in the presence or hearing of [X]
14.     Therapeutic Intervention
The parties and [X] shall continue family therapy with a registered psychologist or family therapist
15.     To give effect to Order 14 the parents shall continue to attend with [Ms B] or other registered psychologist at their election for the purpose of Family Therapy
16.     Pursuant to order 15 above, should either or each of the parents elect to have therapy with a therapist other than [Ms B], they shall provide an authority allowing their therapist to have discussions with [Ms B] relating to [X].
17.     That [X] continue therapy with [Ms B] subject to any recommendation by [Ms B] that this therapy either cease or an alternative arrangement be made
18.     That the father and the mother be jointly liable for the costs of therapy to be undertaken with [Ms B] from time to time
19.     The Court notes that family therapy is intended to address the difficulties in the relationship between [X] and her father. The goal of such therapy is to achieve an outcome where [X] is comfortable and happy to attend contact in accordance with the father's application filed 29 May 2006; which provides for alternate weekends from after school Friday until before school Monday, Wednesday nights overnight and half of each NSW gazetted school holiday period.
20. The Court notes where the parties agree to vary these orders in the course of therapy or otherwise, they shall enter into a Parenting Plan pursuant to Division 4 of the Family Law Amendment (Shared Parental Responsibility) Act 2006 which shall be in writing and signed by each of the parties.”
The Court Expert also said, which I accept, that from the parent assessment interviews it was quite clear that there has been a history of marital and post separation conflict and that the child has been exposed to serious degrees of such conflict in her parents relationship.

Parenting - Relevant Principles

Section 61C(1) in Pt VII of the Family Law Act 1975 (Cth) provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B of the Act. Parental responsibility relates to decision-making, not time to be spent with each parent.
However, by s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D of the Act provides, subject to a presumption of equal shared parental responsibility, that I may make such parenting order as I think is proper. Section 64B(1) defines the term ‘parenting order’ and s 64B(2) specifies what a parenting order may deal with and includes, the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Act. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms ‘abuse’ and ‘family violence’ are defined in s 4 of the Act. There are then 13 additional considerations and they include the views of the child and the nature of the relationship of the child with each of the parents.
Section 60CC(4) requires that I also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities.
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
As noted above, when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ for the child, see 61DA(1). This presumption is concerned solely with the allocation of parental responsibility as defined in s 61B and is not a presumption about the amount of time a child spends with each parent. It also relates only to parents, and has no application to orders for parental responsibility in favour of other people.
The presumption does not apply in certain circumstances. Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I am satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In determining if it would not be in the best interests of the child for the parents to have equal shared parental responsibility I must take into account the considerations in s 60CC and the objects and principles in s 60B.
If the presumption does not apply or is rebutted I must then determine what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
However, if I am satisfied that the presumption of equal shared parental responsibility applies then by s 65DAA(1) I have to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend equal time with each parent and if both conditions are satisfied then consider making an order for the child to spend equal time with each parent. In determining the first matter namely whether it would be in the best interests of the child to spend equal time with each parent I have to apply s 60CC and s 60B. In determining the second matter namely whether it is reasonably practicable I am required to consider the matters in s 65DAA(5).
If I was satisfied that the presumption of equal shared parental responsibility applied but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent and if both conditions are satisfied then consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60CC and s 60B In determining the second matter namely whether it is reasonably practicable I am required to consider the matters in s 65DAA(5). Subsections 65DAA(3)-(4) set out what is meant by substantial and significant time.
Of course it follows that I do not have to consider the matters in s 65DAA if the presumption of equal shared parental responsibility does not apply or is rebutted.
If two or more persons are to share parental responsibility s 65DAC provides that all decisions about major long-term issues be made jointly by those persons. The term ‘major long-term issues’ is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long- term issues.

Background Facts

The Mother was born in 1962 and the Father was born in 1967.
The Mother married Mr Z in 1985 and they had a child E born in 1988. They were divorced in 1989.
The parties were married in 1995.
There is one child of the marriage, X, who was born in 1996.
The Mother contended that her relationship with the Father has been marked by what she described as a long history of physical and psychological abuse of herself and the child and also the child E. The Mother gave evidence of the physical and verbal abuse she contended the Father perpetrated prior to the parties’ separation.
There was put into evidence (Exhibit J) an Application filed in the Metropolitan Children’s Court in late 1989 on behalf of Mr Z. In the Application Mr Z sought ‘access’ with the child E and he contended that he had been denied access since mid-1989 and that the Mother refused to allow him to have ‘access’ on weekends. He also contended that he attended a counselling session and the Mother failed to keep the appointment.
There was put into evidence a copy of consent orders made in late 1989 which provided that Mr Z have ‘access’ to his daughter between the hours of 10.00 am and 4.00 pm one day per week.

There was put into evidence a Statement (Exhibit H) under the Passports Act 1938 (Cth) being an application for an Australian travel document dated 2001. It was an application for a passport for the child E and in that part of the document where particulars had to be provided of whether consent had been obtained from the other parent the Mother wrote “we just don’t have any contact with him” and further, “he has always been a dead beat father”. In that part of the document when particulars were sought as to last contact between the child and the other parent, the Mother wrote “unknown”. The Mother contended that for a period of time Mr Z disappeared.
There was put into evidence a report dated 3 January 2002 (Exhibit L) of a Psychologist Mr AA addressed to Dr BB. It related to the child and in the report it was said the child was giving classical signs and symptoms of night terrors, waking up an hour after she goes to bed but settling quite quickly with some comforting. He said that he had discussed with the parents the sorts of trigger causes that might precipitate the night terrors and that there had been problems at preschool which would seem to trigger it off.
The parties separated on 17 April 2003. They were divorced by decree nisi pronounced in 2004.
When the Father ceased to reside in the then matrimonial home on 17 April 2003 at first he resided with his parents. In early 2003 he was served with a summons for an Apprehended Violence Order and as a result of an interim Apprehended Violence Order he was not able to contact the Mother directly. He contended, and I accept, that since the parties separated there have been a number of applications by the Mother for Apprehended Violence Orders and that he has defended each one and they have all been dismissed.
The Mother gave evidence about the time the child spent with the Father during 2003. On 27 April 2003 the Father spent time with the child as a result of a request made by his solicitors and the Mother agreed.
On 6 April 2004 the following final parenting orders were made:
“1. That, pursuant to Order 14 of the Family Law Rules, orders, declarations and notations be made in terms of the attached document entitled “Terms of Settlement”.
“1.That the child [X] born […] 1996 live with the Mother.
2.That the Mother and father have the joint responsibility, in consultation with each other for making decisions about the long term care, welfare and development of [X] born […] 1996, “[X]”.
3.That each party have the sole responsibility, for making decisions about the day-to-day care, welfare and development of [X], whilst [X] is in their care. but in exercising this order, the caring parent shall not do anything which conflicts with Order 2.
4.That the child, [X] have contact with the Father as follows effective forthwith and until [X’s birthday in] 2005:-
4.1Each and every Tuesday from the conclusion of school until 6.30pm.
4.2Each alternate Friday from the conclusion of school until 8.00pm. This contact shall take place in the same week as Order 4.3 below.
4.3Each alternate Saturday from 9.30am until Sunday at 4.00pm.
4.4From 4.00pm Christmas Eve to 12.00 noon Christmas Day in even numbered years commencing 2004 and in the odd numbered years commencing 2005 the child will be with the Mother for this period. In the intervening year the Father shall have contact from 12.00 noon Christmas Day until 4.00pm Boxing Day.
4.5From 9.30am, 31 December, until 12.00 noon 1 January, in odd numbered years, and in even numbered years, [X] shall be with the Mother for this period.
4.6During […] Orthodox Easter, on Good Friday, from 12.00 noon until 9.30 am Saturday in odd numbered years, and on Easter Sunday, from 9.30am until 4.00pm in even numbered years. In the event that […] Orthodox Easter falls during the school term, the Father shall have contact at the conclusion of school on Good Friday until 9.30am Saturday.
4.7From 9.30am to 4.00pm on Father’s Day.
4.8For a period of three (3) hours on the Father’s birthday.
4.9For one half of all school holidays, but excluding Christmas, New Year and […] Orthodox Easter days, provided the Father gives the Mother no less than sixty (60) days prior written notice that he wishes to exercise contact under this Order. The Father shall further provide sixty (60) days prior written notice as to which half of school holidays that contact shall take place. In default of such notice being given, the Mother shall have the choice of which half.
4.10In the event that the Father is unable to exercise his contact in a school holiday period, the Father shall have the ordinary contact that he would otherwise have been entitled to for that one half school holiday period. All weekend contact in the remaining mothers half school holiday period shall be suspended.
4.11For not less than three (3) hours on [X’s] birthday as agreed between the parties.
4.12At all other times as may be agreed between the parties.
From [X’s birthday], 2005 and thereafter:
5.All such contact as in Orders 4.1 to 4.12 above with the exception of Order 4.2 and 4.3.
6.In lieu of Order 4.2 and 4.3 above, Order 6.1 shall apply in respect of weekend contact.
6.1From the conclusion of school each alternate Friday until Sunday at 4.00pm.
7.That in the event that any contact weekend falls on a long weekend including a Monday then contact shall be extended to 4.00pm on Monday; and if it falls on a long weekend including a Friday then contact shall commence at 9.30am Friday.
AND FURTHER, EFFECTIVE FORTHWITH:-
8.That by way of implementation, during school term, the Father shall collect the child from the school at the commencement of contact and shall deliver the child to within the McDonalds Restaurant, [Suburb CC] or at such other place as agreed between the parties. Changeover shall take place outside of the school term and on Saturday mornings at the McDonalds Restaurant, [Suburb CC] or such other place as agreed to in writing, SMS message or similar between the parties where both party’s agreement is recorded.
8.1Changeover shall take place on Saturday morning during [sport] season at the sporting field at [DD Street, Suburb EE] provided that the Father is in attendance at the ground by 9.15am. In the event that the child is not playing [sport] on a contact Saturday, the Mother will notify the Father as soon as practicable and changeover shall take place in accordance with Order 8 hereof.
9.Whilst the Father is exercising contact or [X] is in his care, he shall not leave the child alone, and shall take all reasonable precautions, and to put-in-place all safe guards in respect to his brother [Mr C], when [X] is in the vicinity of the brother.
10.That the Father and mother keep each other informed of any change in their residential address and contact telephone numbers within seven (7) days of any change of same. Further, if either party shall be absent from their residence for more than four (4) days, the other party shall provide contact details for emergency purposes.
11.That the Father provide to the Mother a contact number (both normal telephone line, and mobile), and address during the periods when the Father has contact with [X], and reciprocally the Mother will provide to the Father a contact number (both normal telephone line, and mobile), and address when [X] is on holidays with the Mother. The parties shall keep the mobile telephone charged and switched on at all reasonable times during periods when [X] is with that party.
12.The Father and mother shall act reasonably as circumstances permit in facilitating telephone contact with [X] as she requests with a party or a party requests with her.
13.That each party keep the other reasonably informed of [X’s] general state of health and advise the other in the event [X] suffers serious illness or injury whilst in that party’s care.
14.That [X] is not allowed to travel outside the Commonwealth of Australia without both the Father’s and the Mother’s written consent, or as further ordered by a Court of appropriate/competent jurisdiction.
15.Neither party is to cause the child to change her name or be known other than as [X].
16.The Mother and the Father will facilitate [X] attending all sporting fixtures and training sessions and social functions which the child reasonably wishes to attend when the child is in that parents care.
Notations:
17.That the Mother and father give due consideration to [X’s] wishes in the exercising/implementation of contact. If [X] refuses or not wish to have contact on any occasion, the Mother shall use her best endeavours to put [X] in telephone contact with the Father to enable the Father to discuss same with [X], and the Mother will facilitate any reasonable agreement between the Father and [X].
18.That the Father acknowledges and accepts that if [X] refuses Contact with her father and/or, overnight contact stays during any Contact period, the Mother is not breaking the Parenting/Child-Orders, provided that she has not influenced/encouraged the child to purposely do so. If [X] refuses to have Contact with the Father under the Parenting/Child-Orders on any three (3) consecutive occasions, or for any school holidays, the parties agree to seek an appropriate child expert and/or counsellor for [X] with the costs being agreed to be shared equally between the parties, and will reasonably take into account the advice of the child expert and/or counsellor in exercise of any Contact. If the parties cannot agree on the child expert/counsellor, the parties agree that the counsellor for the school in which [X] is attending will be approached by the parties, and the child expert/counsellor suggested and/or recommended by the school counsellor, will be utilised for the purposes contained herein.
19.That both parties agree not to argue in the presence of [X] or to make any derogatory remarks about the other party in her presence.
20.That the Mother and the Father will do all reasonable things to ensure that the child completes any school homework and/or assignments whilst the child is in their care with the exception of the Fathers contact pursuant to Orders 4.1 and 4.2 hereof.”
2. That all outstanding applications be hereby dismissed and these proceedings be removed from the Pending Cases List.”
As it transpires, there are troublesome aspects of the orders and notations including the orders dealing with telephone communication (orders 11 and 12) and the notation dealing with the wishes of the child (notation 17). I note that in his Judgment of 31 October 2005 which was attached to the affidavit of the Mother, Rose J. expressed concerns about Notations 17 and 18 and I agree with what he said.
The parties both gave detailed evidence as to the times the child lived with the Father both before and after the above orders. There was some conflict between the parties.
Notwithstanding the parties reside in close proximity to each other the Mother only ever agreed that the handover of the child would occur at the McDonalds Restaurant at Suburb CC.
The Mother contended that on 27 June 2004 she had a conversation with the child who told her that the Father slapped her across the face very hard “for no reason”.
The Mother contended that she arranged an initial consultation for the child with a Consultant Psychologist, Ms FF in July 2004. The Mother contended that she was looking for “further professional assistance” in respect of the child’s anxiety and night terror problems. The child had counselling in July 2004, August 2004 and September 2005. As seen, the child had night terror problems before the parties separated.
The Mother contended that in September 2004 at the McDonalds Restaurant the Father verbally abused her in the presence of the child who started crying.
In early 2005 the Father filed an Application in the Local Court at Sydney in which he sought that the Mother be dealt with for contravention of the orders of 6 April 2004.
On the same day, the Father also filed an Application in which he sought that the orders made on 6 April 2004 be vacated and in lieu thereof orders be made for the child to reside with him during specified periods including during each school term, each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday.
Two days later, a Response was filed on behalf of the Mother in the Local Court in which she sought, amongst other things, that until further order Orders 4, 5, 6 and 7 made on 6 April 2004 be suspended.
The following day, certain interim orders were made in the Local Court including:
“2. That the mother deliver the child [X] (born […] 1996), to the father at [GG Street, Suburb HH] at 6.00pm on 14/01/2005 to remain on contact with the father until 6.00pm on 30/01/2005 when the father will deliver her to the mother at McDonalds at [Suburb CC] and the orders of 06/04/2004 are accordingly varied.”
An order was also made that the Mother pay the Father’s costs of $1,941 within 30 days and further that the Mother’s cross application be dismissed. Other orders were made which I need not repeat in these reasons. The Mother is now seeking to appeal against the order for costs.
On 27 January 2005 the Mother filed in the Family Court a Notice of Appeal.
The Mother gave extensive evidence of ‘contact’ she contended the Father had with the child subsequent to the orders of early 2005, as well as communications between the parents and also conversations she contended she has had with the child. For example, the Mother contended that on Sunday 30 January 2005 the child said “Please Mum don’t let him take me away again …. Please fight for me in court”.
The Mother said the parents attended counselling at JJ Family Services in early 2005 and she described it as a “total waste of time”.
The next month, the following orders were made in the Local Court.
“1.     That, re the alleged contempt of December 2004, the information is dismissed
2.      That, re the alleged contempt of 14/11/2004 and 27/11/2004, contravention is proved
3.      That, re 14/11/2004 and 27/11/2004:
a)      The Mother and father do all acts necessary to participate in “[JJ Family Services]” parenting after separation course at the joint expense of the parties
b)     That the orders for contact made in the Family Court of Australia, Sydney in SYF 3339 of 2003 on 06/04/2004 including the notations contained in numbers 17 and 18 of the terms of settlement, are varied by discharging the same and by providing in lieu thereof orders for contact in terms of numbers 3.2 to 3.8 inclusive of part F of the Father’s application of [early] 2005
4.      That the Mother pay the Father’s costs of and incidental to these proceedings, assessed at $2000.00 and GST, payable within 30 days”
Paragraphs 3.2 to 3.8 of the Father’s Application provided:
“3.2    That during school term [X] live with the husband each alternate weekend commencing from the conclusion of school on Friday to the commencement of school on the following Monday and extending to the commencement of school on the Tuesday if the Monday is a public holiday or pupil free day. Such residence shall commence the first weekend after the start of each school term if [X] resides with the Husband the first half of the previous school holidays and shall commence the second weekend of the school term if [X] resided with the Husband the second half of the previous school holiday period.
3.3     [X] shall reside with the Husband during school term from the conclusion of school on Wednesday until the commencement of school on Thursday.
3.4     [X] shall reside with the Husband for half of all New South Wales school holidays, being the first half in all odd numbered years and the second half in all even numbered years, commencing at 5.00pm on the last day of school term and ending at 12 noon on the middle day of such school term holidays in odd numbered years and commencing at 12 noon on the middle day of such holidays and ending at the commencement of the first day of school term or first day [X] is due to attend school if day one is a pupil free day.
Christmas Day
3.5     In years when [X] resides with the Husband over Christmas Day, [X] shall reside with the Wife from 2.00pm on Christmas Day to 6.00pm on 26 December and other residence orders for that period are suspended .
3.6     In years where [X] shall otherwise reside with the Wife on Christmas Day, then she shall reside with the Husband from 2.00pm on Christmas Day to 6.00pm on 26 December and other residence orders for that period are suspended.
Other periods
3.7     The Wife’s residence period is suspended and [X] is to reside with the Husband on Father’s Day from 9.00am on that day until the commencement of school the following day.
3.8     That the Husband’s residence period is suspended on Mother’s Day and [X] is to reside with the Wife from 9.00am that day until the commencement of school the following day.”
As a consequence of the above orders the parties were ordered to participate in a parenting after separation programme with JJ Family Services at their joint expense.
On 18 March 2005 the Mother filed an amended Notice of Appeal in the Family Court and then on 27 April 2005 she filed two documents being amended Notice of Appeal No 1 and amended Notice of Appeal No 2.
The Mother sought that orders 2, 3 and 4 made in the Local Court in early 2005 be discharged. Further, the Mother sought that all previous parenting orders be discharged. The Mother sought that the child reside with her and that the Father have contact with the child to include during school term each Tuesday from the conclusion of school until 6.00 pm, each alternate Friday from the conclusion of school until 8.00 pm, each alternate Saturday from 9.30 am until 8.00 pm and each alternate Sunday from 9.30 am until 4.00 pm. The Mother did not propose any overnight contact.
On 29 April 2005 Moore J. made an order that paragraphs 1 and 2 of the Notice of Appeal Amended No. 2 filed on 27 April 2005 which related only to contravention be listed for hearing as a fixture on 24 June 2005. Her Honour also made an order that there be stood over for mention before the Judge hearing the contravention appeals the remaining matters the subject of the appeal from the Local Court and the applications pending in the Family Court.
On 7 July 2005 there was a hearing before Rose J. of that part of the amended Notice of Appeal against final orders seeking that orders 2, 3 and 4 made in the Local Court in early 2005 be discharged. On 31 October 2005 Rose J. made the following orders:
“1. That in relation to Orders made [early] 2005 in the Local Court Family Matters:
(a)Order 2 in relation to the alleged contravention by the mother of the contact order providing for contact on 27 November 2004 is set aside.
(b)Order 3(b) is suspended until further order.
(c)Order 4 is set aside.”
Rose J. discharged the order for costs (Order 4) because of the absence of evidence of the financial circumstances of the parties.
Rose J. was dealing with an appeal by the Mother against orders made in the Local Court in early 2005 that on 14 November 2004 and 27 November 2004 she had contravened the orders for contact. His Honour found that on 14 November 2004 the Mother had without reasonable excuse contravened the order but that she had established a reasonable excuse for 27 November 2004. I observe that his Honour said that the Mother relied upon Notations 17 and 18 of the 2004 orders in the event that there was a contravention.
It was contemplated by the orders of 6 April 2004 that a new regime for parenting would have commenced as and from D’s birthday in 2005. However, by this time the parents were litigating.

On 29 November 2005 an order was made for the appointment of a Child Representative who is now identified as the Independent Child Lawyer.
On 17 January 2006 the Father filed an Application for Contravention of parenting orders.
On 1 March 2006 a Judicial Registrar made an order that the Father’s Contravention Application filed on 17 January 2006 be dismissed. The Judicial Registrar noted that the Father informed the court that there were no problems currently concerning contact between the Father and his daughter and that this has been the situation now for many months. The Judicial Registrar noted that in those circumstances the Contravention Application was unnecessary and therefore an abuse of process. I am not sure what the Judicial Registrar intended to convey by the notation because the hearing of the parenting applications was to commence before me on 17 March 2006.
The Father gave evidence that on 1 March 2006 he did not give evidence and nor was he cross examined. Further, the Mother was not required to give evidence. The Father said, and I accept, that he was not sure why his Application was dismissed as the hearing only took a few minutes. He did not understand why his application was dismissed. The Father however, did not seek to review the decision of the Judicial Registrar. On 1 March 2006 no application was made on behalf of the Mother that the Father pay her costs. The Father was later served with an application for costs which was listed on 31 May 2006.
On 17 March 2006 the hearing commenced before me and I made order that it proceed pursuant to Practice Direction No. 3 of 2005. As well, on the application of the then Child Representative I made an order for the appointment of Ms B as an expert under Part 15.5 Family Law Rules2004. I made other orders, which I need not repeat, that required Ms B to undertake counselling/therapy and also provide a report.
The Mother contended that while the child was with the Father on 31 March 2006 the Father smacked the child on the hip and when the Mother collected the child from the McDonalds Restaurant she said that she was not going to see the Father on the Saturday and Sunday because she was scared he would hit her again. The Mother contended that the child then refused to go on Saturday 1 April 2006 and that the matter was reported by the Father to the Police. The Mother contended the child also refused to go on Sunday 2 April 2006.
On 3 May 2006 the Father gave written notice to the Mother requesting contact with the child during the July 2006 school holiday period. By letter dated 15 May 2006 the Mother wrote to the Father’s employer in which she said:
“I enclose a copy of a document on your stationery. As you would appreciate I am surprised that your corporation gets itself involved in these matters.
I am giving your Department the opportunity to explain before taking the matter up with the Ombudsman and at Ministerial level if a satisfactory response is not received.”
On another occasion namely, in February 2006 the Mother contacted the Father’s employer and complained about the Father picking up the child.
On 8 May 2006 I made an order that each of the parents file and serve by 29 May 2006 an Application in which they set out the orders sought and as well, made an order for the filing of affidavits.
On 31 May 2006 the Judicial Registrar made an order that the Father pay within 31 days the Mother’s costs in the amount of $3,500 as a consequence of the dismissal of the Father’s Contravention Application filed on 17 January 2006. The Father did not appear at the hearing on 31 May 2006 and the order was made on an undefended basis. The Father has now appealed against this order.
The Father contended that he did not attend at court on 31 May 2006 because he was too ill to attend. He did not file any documents in response to the Mother’s Application for costs and nor did he put any evidence before the Court as to his financial circumstances. However, he contended that he sent to the Court, by facsimile transmission, correspondence and a medical certificate to explain his situation. The Father attached to his affidavit a copy of a letter dated 31 May 2006 which he sent by facsimile transmission to the Court. In the letter, in summary, he advised that he was unable to attend, that he would like the matter adjourned until 4 or 5 July 2006 before me and that he was in the Children’s Cases Program. He also said that he was unable for friends or family to be in court on his behalf. He also sent a copy of a report dated 29 May 2006 from Dr KK of LL Medical Centre in which it was stated that the Father was examined on 29 May 2006 and it was considered that he would be unfit from 29 May 2006 to 1 June 2006. The Father also attached to his affidavit a copy of his work roster which he submitted, and I accept, demonstrates that he was not working because of illness during the relevant week.
The Judicial Registrar did not adjourn the proceedings but proceeded to hear the matter in the absence of the Father and made an order for costs in favour of the Mother in the full amount she sought. The Father was not given the opportunity to be heard as to whether or not an order should be made. He was not given the opportunity to challenge any item or the quantum of the amount claimed as to costs. He said, and I accept, that he did not see an invoice showing how the amount was calculated.
In the Application for Contravention the Father contended that without reasonable excuse the Mother refused contact between the Father and the child on 10 August 2004, 8 October 2004, 16 October 2004, 12 December 2004, 25 and 26 December 2004. In support of the Application the Father swore an affidavit on 17 January 2006. In her affidavit of 20 June 2006 the Mother gave extensive evidence about periods of time the child has spent with the Father and other matters. The Mother said that she could not recall if the child spent time with the Father on 10 August 2004. The Mother said that Father did not spend time with the child on 8 October 2004 and she explained why. The Mother contended the Father did spend time with the child on 16 October 2004. The Mother admitted the child did not spend time with the Father on 12 December 2004 because the child went to a birthday party and that the child had told the Father. The Mother gave no evidence about 25 and 26 December 2004.
The Father contended that during 2005 he spent $42,000 on legal costs. He was representing himself from November 2005 until he retained his present solicitors to appear on his behalf on 4 and 5 July 2006. He has had to borrow the monies he has paid on account to his solicitors. He contended, and I accept, that his liabilities include $11,000 for legal costs being an amount he borrowed from his father and in respect of which he will make regular repayments commencing after the conclusion of the parenting proceedings.
In relation to the Appeal the Mother relied upon an affidavit she swore on 3 July 2006 which only comprises three pages but has numerous annexures. Attached to the Mother’s affidavit is a copy of an invoice dated 10 March 2006 from her solicitors in which it is contended that the amount due and payable is $3,639.16.
The hearing continued on 8 May 2006.
On 29 May 2006 an Amended Application was filed by the Father and on the same day an Amended Application was filed by the Mother.
In the parenting proceedings the Father swore an affidavit on 15 June 2006. The hearing continued on 15 June 2006. The Mother swore or affirmed an affidavit on 20 June 2006. As well, I later received a Financial Statement of each party.
The report of the Court Expert is attached to an affidavit she swore on 22 June 2006. She had earlier provided a draft or preliminary report.
The hearing continued on 4 July 2006 and the parents were orally examined. As a result of the evidence given by both parents and in particular the Mother arrangements were then made for the Court Expert to listen to a tape of what the parents said when orally examined.
On 4 July 2006, at the conclusion of her oral examination the Mother, in a non responsive way, volunteered that what she had earlier said about the future schooling of the child was either wrong or may not be correct. The Mother proceeded to say that her home was on the market for sale and that she intended to sell the home and move elsewhere. I am not going to repeat all of what thereafter transpired. It is sufficient to say that the Mother then made clear that she intends to continue to live in her home at MM Street, Suburb CC and I am going to proceed on this basis. I was informed that in early 2006 the Mother had arranged with an agent for the listing of her home for sale being prior to the commencement of the hearing before me and perhaps prior to the completion by the Mother of the questionnaire. In any event, no submissions were made on behalf of the Mother to suggest that what I have just said as to the future accommodation of the Mother and the child is not correct or may change.
The hearing continued on 10 July 2006 when the Court Expert was orally examined.
The Father has not spent time with the child during the 2006 July school holidays. Counsel for the Mother at first told me that this was because notice had not been given by the Father as required by the existing orders. However, when Exhibit I, which I have identified above, was considered, I was then told that the Mother contended that no arrangements had been made for the Father to spend time with the child because of advice received from the Court Expert. The Mother contended that the Court Expert told her and the child that the Father would not have “contact” during the holidays. When the Court Expert was orally examined she said that on 20 June 2006 she had a “debriefing” with the child and told her that she would put in a recommendation that school holiday contact not include overnight contact. Importantly, the Court Expert denied what the Mother contended she was advised by the Court Expert.
Subsequent to the hearing on 10 July 2006 I received a Minute of Orders proposed by the Independent Child Lawyer. As well, I received written submissions.
On 13 July 2006 I received from the solicitors for the Mother, by facsimile transmission, what was described as an Aide Memoire prepared by Counsel for the Mother which it was contended was a cross referencing of the Mother’s previous affidavit, the Father’s previous affidavit and another affidavit of the Father. In the document there is identified an affidavit the Mother swore or affirmed on 16 February 2005 and filed on 16 February 2005. This affidavit was not in evidence before me as it was perhaps sworn or affirmed and filed prior to the commencement of the hearing on 17 March 2006. I was also referred to an affidavit of the Father sworn on 5 July 2005 which was also not in evidence before me. However this affidavit of the Father was in evidence before Rose J. I was also referred to an affidavit of the Father sworn on 15 June 2006 and filed on 16 June 2006 which was in evidence.
Then, by facsimile transmissions dated 18 July 2006 I received a Minute of Orders Sought by the Mother and written submissions on her behalf in reply to the submissions of the Independent Child Lawyer. However, consideration of these written submissions makes clear that they are in support of the orders sought in the Minute I received on 18 July 2006.
In the affidavits each parent sought to demonstrate the amount of time the Father and the child have spent together. The Independent Child Lawyer submitted that I should make a finding that the current level of ‘contact’ has been each Tuesday after school until 6:30pm, each alternate Friday from after school until 8:00pm, and each alternate weekend from 9:00am on Saturday until 4:00pm on Sunday, noting that the Friday evening and Saturday overnight contact occur on the same weekend. It was submitted that this finding is supported by evidence given orally by the Court Expert during which she said the Mother, Father and the child all told her during interviews this year that the current contact was as described above. The Court Expert recommended that this arrangement should continue.
During the hearing the Mother sought to reduce the time the child spends with the Father and did not provide for any over night periods at all. The Mother however conceded that special days are important and provided they do not become over night visits, she was in agreement. Then on 18 July 2006 in the Minute I received the Mother proposed that the Father have overnight contact each alternate weekend from 9.30 am on Saturday until 4.00 pm on the following Sunday. The Submissions and Minute of Orders sought by the Mother were not received by the Father’s lawyer until 19 July 2006.
The Mother sought other orders of which no prior notice had been given. This was very unsatisfactory. The case was conducted on the basis that the Mother did not propose any overnight contact and the submissions I received prior to 18 July 2006 were made on that same basis.
Subsequent to 19 July 2006 I received brief written submissions on behalf of the Father. It was submitted that it was anticipated that following the hearing the Independent Child Lawyer would make submissions and provide a Minute of Orders sought by her in writing. This was my understanding.
It was submitted that it was foreshadowed by Counsel for the Mother that she would be lodging written submissions with respect to commentary on the evidence, as to times the child spent with the Father, but it was not anticipated that there would be further written submissions by the Mother and a revised Minute of Order. This was also my understanding.
It was submitted that the Father did not expect at the conclusion of the hearing that it would be necessary to make further written submissions in addition to the oral submissions at trial. I understand why he did not have that expectation.
It was submitted that the Father does not wish to incur substantial legal expenses by responding line by line to the written commentary on the affidavit evidence prepared and submitted by Counsel for the Mother. I understand why the Father has taken this approach and accept that position.
It was submitted on behalf of the Father that while it is recognised that because of the Children’s Cases Program (now Div 12A of the Family Law Act) I am not strictly bound by the rules of evidence, the proceedings should be conducted in a fair manner. I agree.
It was submitted on behalf of the Father that it is plain that the matters raised in the written commentary by Counsel for the Mother should have been put to the Father in the ordinary course of cross-examination so that he could comment and this did not occur. I agree with these submissions. As well, the Mother’s final position should have been made known before so that the lawyer for the Mother and the Independent Child Lawyer could consider if anything further was required including seeking to orally examine the Mother. However, notwithstanding the difficulties I was not prepared to re-open the hearing.
The child attends NN School at Suburb PP. It is a Christian school, although the child is of Orthodox religion. The child is in Year 4. The Mother contended that she has been informed by the school teachers that the child is very mature for her age and well behaved. The Court Expert said the child presented as a quiet, polite, well mannered nine year old girl who is articulate for her age as evidenced by her ability to use in appropriate context quite conceptual language. Ms B described the child as bright and thoughtful.
The Mother contended that she has continually endeavoured to be constructive and by gentle encouragement, even against her own concerns and apprehensions, promoted the Father spending time with the child. She said that she now has serious doubts as a result of having observed what she described as the negative affects on the child. Further, the Mother contended the child is expressing her own mature views in respect to spending time with the Father and the environment she desires.
The Father swore a Financial Statement on 6 July 2006 and he said, which I accept, that he has a total average weekly income of $944. However, he has total personal expenditure of $1,025 per week which I observe excludes legal costs. He pays a mortgage of $431 a week. He also pays child support of $110 per week. I observe that his expenses exclude living expenses. As to assets he owns his unit at QQ Street, Suburb CC which he estimates has a value of $280,000. However, he has a mortgage debt of $260,000. He also has furniture and a motor vehicle. He has a small amount of superannuation. I accept that the Father’s financial circumstances are very modest.
The Mother swore a Financial Statement on 7 July 2006. In the Statement she said she has a total average weekly income of $738 which includes child support of $110 and an income from her business of an estimated $356. However, her Counsel informed me that this figure was wrong and that as a result of assistance from members of her family she has a total average income of $958 per week. In the Statement the Mother disclosed total personal expenditure of $779 per week which included a mortgage payment of $186 per week. However, again the Mother’s Counsel informed me that these figures were not correct and that the mortgage repayment is $365 per week and as a consequence the Mother has total personal expenditure of $958 per week.
The Mother also disclosed that she has a two third share of MM Street, Suburb CC which she estimated is valued at $333,300. She has a motor vehicle and household contents. She also contended that she has a mortgage debt of an estimated $225,000. She has other unsecured liabilities including an estimated $19,275 in outstanding legal costs. The Mother’s financial circumstances are also modest.

Relevant Matters

At the outset I record that it is agreed that there should be an order that the parents have equal shared parenting responsibility: s 61DA. In my view, this was an appropriate position to adopt.
As well, before proceeding it is instructive to consider what the Court Expert said. I will refer to some parts of her report and also her oral evidence. The Court Expert listened to the tape of the oral examination of the parents after her report was completed but before she was orally examined.
In her report the Court Expert said that she has concerns that the child has inappropriate levels of stress and fear in relation to the current status of her relationship with her father as well as the potential for conflict between her parents. Further, that she saw evidence that this is heightened when the child contemplates forthcoming overnight stays with the Father as well as the outcome of the current proceedings.
In her report the Court Expert said:
“[X’s] relationship at present with her father is extremely fragile. She seems ambivalent about her ongoing relationship with him. At times she expressed desire to have a good relationship with [the father], however when we further explored this she reported little hope that this could be achieved because he ‘probably can’t change’. [X] also felt that her father didn’t really want her to be around on some of the weekends she has had contact as he ‘spent time on the balcony’ while she ‘did her own things’ inside. She said at these times she would rather be with her mother and sister. [X] reported however that she have a better time when she and her father did some things together. [X] reported a preference for her Tuesday afternoon contact because it was ‘shorter’ and she felt ‘less bored’.”
However, Ms B went on to say that the child does include the Father as part of her world. On the first day of the hearing the Mother said the child loves the Father.

On behalf of the Father it was submitted that any concerns I might have about encapsulating such arrangements in orders now should be ameliorated by confidence in the Father’s ability to put the child’s needs before his own and that he will be responsive to any need the child has to see her mother. On behalf of the Father it was submitted that his track record is that even though he may be entitled to periods of time with the child on an overnight basis, that he is prepared to permit that time to be interrupted on an ad hoc basis by the child visiting her mother when she wishes. I accept these submissions.
On behalf of the Father it was submitted that it is not to say that the child should continue to bear the pressure of having to continually make choices about her movements between the parents. The view of the Court Expert was that the child’s anxiety about spending time with her father is progressively being dealt with by her therapeutic process and particularly by the improved attitude of the Father, as is clear from his evidence. Accordingly, Ms B should be able to explain to the child that I have decided that she should spend more time with her father, that she will be safe with her father and that both the Father and the Mother accept my decision and will support its implementation. Ms B could then explain that both the Father and the Mother will be flexible about these arrangements in order to be responsive to her needs. On behalf of the Father it was submitted that he accepts that another approach may be that extra time be gradually introduced, with Ms B’s assistance, so that the increase is accepted by the child without her being made anxious. I agree with these submissions.
As I have said, I accept the submissions on behalf of the Father. I am not prepared to leave it as an open ended regime that is subject to the agreement of the parents and I propose that it will change both in 2006 and 2007. I am going to specify a different regime because the ‘goal’ should be identified and provided for in the orders. Next, the mother must understand and accept that the ‘goal’ is that the current regime should change. Given the Mother’s attitude towards ongoing professional assistance and that she has no ‘goal’ I accept that in the absence of a complete regime the ‘goal’ may be illusory.
Putting aside special days the current arrangement will continue until October 2006 when changes will occur and then further changes will commence in April 2007. As from October 2006 in addition to the Tuesday evening the child shall live with the Father each alternate weekend commencing from the conclusion of school on Friday to 6.00 pm on the following Sunday. This will continue during the school holidays. Then as from April 2007 during school term the child shall live with the Father from the conclusion of school on Friday to the commencement of school on the following Monday and extending to the commencement of school on the Tuesday if the Monday is a public holiday or pupil free day and from the conclusion of school on Wednesday until 8.00 pm in each week. Further, during school holidays the child will live with the Father for half of the holidays. However, in the event that the Father is unable, due to work commitments, to spend time with the child then the school term regime will continue.
This is a difficult case and I have to make orders that are in the best interests of the child. I take into account the opinions of the Court Expert. I also take into account my findings in relation to the various considerations. Importantly, I am seeking the assistance of the Court Expert to overcome the anxieties of the child and do all that can be done to ensure she has a normal relationship with both parents. Both parents have to understand that as the child gets older she will want more autonomy and they will have to deal with this appropriately. As well, the parents, with the assistance of an expert, may agree on other arrangements which they can then embody in a parenting plan. In this case the regime which I will establish is one that will in effect apply in the absence of a constructive agreement made by the parents. In fact it would be my hope that the parents would agree to change the regime so as to achieve ‘the goal’ sooner rather than later.
The Court Expert also gave evidence that it is in the child’s interests and indeed to her benefit to attend occasions that are special to either one or other of her parents. I agree. The Father has requested a number of special days. The Mother says that those days are appropriate provided it is not over night. I am going to make the orders sought by the Father in relation to special days and periods and they will include in some instances periods overnight.
The Mother appears to seek to codify the range of family or extra curricular events. On behalf of the Father it was submitted that this appears to be too restrictive and would be unnecessary. I agree. However, I will assume that both parties will ensure that the child attends educational, sporting and training activities she wishes to participate in.
The Independent Child Lawyer submitted that the watch list order sought by the Father not be made. It was submitted that where there is an order for equal shared parental responsibility there is an underpinning requirement that all major decisions be made jointly by the parents and all efforts to communicate be made. The evidence given by the parents, particularly the Mother’s concession is that no watch list order is necessary as she has no intention of taking the child overseas and certainly not without the Father’s knowledge or consent. The watch list order is therefore unnecessary and only serves to heighten the conflict. I agree and will not make the order.

Appeals

Relevant Principles-costs

Section 117(1) of the Family Law Act provides that subject to s 117(2) and s 117AA and s 118, each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) provides that if, in proceedings under the Act, I am of opinion that there are circumstances that justify it in doing so, I may, subject to sub secs (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs whether by way of interlocutory order or otherwise, as I consider just.
Section 117(2A) provides that in considering what order (if any) should be made under s 117(2), I shall have regard to the matters set out in paras (a) to (g). In PBF (as child representative for AF (Legal Aid Commission of Tasmania) v TRF and Another (2005) 33 Fam LR 123 the Full Court said at p 130:
“The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subsection (2A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.”

Relevant Matters

I am required to consider the financial circumstances of each of the parties to the proceedings. This is relevant in both appeals.
I am required to consider whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party. This is not relevant in both appeals.
I am required to consider the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters. This is relevant in both appeals.
I am required to consider whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court. This is relevant in both appeals.
I am required to consider whether any party to the proceedings has been wholly unsuccessful in the proceedings. This is relevant in both appeals.
I am required to consider whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer. This is not relevant.

Conclusion - Appeals

I have come to the conclusion that both appeals should succeed for the following brief reasons.
As to the Mother’s appeal the Father has not established, to my satisfaction, that there was a justifying circumstance.
As to the Father’s appeal I do not understand why an order was made by the Judicial Registrar that the Father should pay costs in circumstances where the proceedings were not concluded and the only final order made was that relating to the Father’s Contravention Application. As well, I now have the benefit of the evidence of the Husband as to why he did not appear and I accept his evidence. The costs proceedings should have awaited the outcome of the parenting proceedings before me.
Further, the Mother has not established, to my satisfaction, that there is a justifying circumstance. The Father was entitled to feel aggrieved by the difficulties experienced with contact. It may have been unwise to file the application but the Father had no legal representation and I do not accept that in filing the application he acted in bad faith or had some intention to harass the Mother.
Finally, and significantly as to both appeals I take into account the financial circumstances of both parties. Their financial circumstances are very modest and they cannot afford to pay legal costs. There are no countervailing justifying circumstances that outweigh this significant matter.

Orders

All previous parenting orders be discharged.
The parents have equal shared parental responsibility in relation to their daughter, X born 1996.
Each parent individually have sole responsibility for making decisions concerning other aspects of the care, welfare, development and parental responsibility of the child on a day to day basis during periods when the child is living with either of them.
Until 31 October 2006 the child shall live with her father as follows:
4.1Each Tuesday from after school until 6.30 pm.
4.2Each alternate Friday from after school until 8.00 pm.
4.3Each alternate weekend being the weekend immediately following the period pursuant to Order 4.2 above, from 9.00 am on Saturday until 4.00 pm on the following Sunday.
As from 31 October 2006 until Friday 30 March 2007 the child shall live with her father as follows:
5.1Each Tuesday from after school or 3.30 pm until 6.30 pm.
5.2Each alternate weekend being the weekend immediately following the period pursuant to Order 5.1 above from after school on Friday or 3.30 pm until 4.00 pm on the following Sunday.
As from 31 March 2007 the child shall live with her father as follows:
6.1During school term each Wednesday from after school until 8.00 pm.
6.2During school term each alternate weekend commencing from the conclusion of school on Friday to the commencement of school on the following Monday and extending to the commencement of school on the following Tuesday if the Monday is a public holiday or pupil free day and such time shall commence the first weekend after the start of each school term if the child spends time with the Father in the first half of the previous school holidays and shall commence the second weekend of the school term if the child spends time with the Father in the second half of the previous school holiday period;
6.3For half of all New South Wales school holidays as follows:
6.3.1 Either in the first half of the school holidays in which case the period shall commence at 5.00 pm on the last day of school term and end at 12.00 noon on the middle day of such school term holidays, or
6.3.2 In the second half of the school holidays in which case the period shall commence at 12.00 noon on the middle day of such holidays and end at the commencement of the first day of school term or first day the child is due to attend school if day one is a pupil free day;
6.3.3 The Father shall provide 30 days’ prior written notice to the Mother as to which half of the school holidays the child is to live with her father;
6.3.4 During the school holiday periods Orders 6.1 and 6.2 shall be suspended;
6.3.5 In the event that due to work commitments of the Father the child is unable to live with the Father during school holidays in accordance with either Order 6.3.1 or Order 6.3.2 herein the child shall live with the Father in accordance with Orders 6.1 and 6.2 herein.
The child shall live with the Father and the Mother on occasions of special significance to the child and to the parents to enable the attendance at such events including:
7.1With the Father from 4.00 pm on Christmas Eve until 12.00 pm on Christmas Day in each even numbered year commencing in 2006.
7.2With the Mother from 4.00 pm on Christmas Eve until 12.00 pm on Christmas Day in each odd numbered year commencing in 2007.
7.3With the Father from 12.00 pm on Christmas Day until 4.00 pm on Boxing Day in each odd numbered year commencing in 2007.
7.4With the Mother from 12.00 pm on Christmas Day until 4.00 pm on Boxing Day in each even numbered year commencing in 2008.
7.5With the Father from 9.30 am on 31 December until 12.00 pm on 1 January in each even numbered year commencing on 31 December 2006.
7.6With the Mother from 9.30 am on 31 December until 12.00 pm on 1 January in each odd numbered year commencing on 31 December 2007.
7.7In the event that the child is not otherwise living with the Father on Father’s Day in accordance with these orders then the child shall live with the Father on the weekend which includes Father’s Day from 9.00 am on the Saturday immediately preceding Father’s Day until 4.00 pm on Father’s Day.
7.8In the event that the child is not otherwise living with the Mother on Mother’s Day in accordance with these orders then the child shall live with the Mother on the weekend which includes Mother’s Day from 9.00 am on the Saturday immediately preceding Mother’s Day until 4.00 pm on Mother’s Day
7.9With the Father on the Father’s birthday from after school on the day of his birthday until before school the following day or if his birthday falls on a weekend, then from 9.00 am on Saturday until 6.00 pm on the following Sunday.
7.10With the Father on the child’s birthday each year from 3.00 pm until 7.00 pm.
7.11With the Father on the Name Day of the child each year from after school or 3.00 pm until 8.00 pm should the Name Day fall on a week day and should the Name Day fall on a weekend then from 9.00 am on Saturday until 6.00 pm on the following Sunday and otherwise by agreement between the parents.
7.12With the Father on the Name Day of the Father each year from after school or 3.00 pm until 8.00 pm should the Name Day fall on a week day and should the Name Day fall on a weekend then from 9.00 am on Saturday until 6.00 pm on the following Sunday and otherwise by agreement between the parents.
7.13With the Father on 7 January of each year being Orthodox Christmas Day from 9.00 am until 9.00 am on 8 January of each year.
7.14With the Father on the Father's rostered day off on no more than 1 day per month, such time to commence at 3.00 pm on the day before the rostered day off and then the Father to deliver the child to the Mother’s home at 8.00 pm on that same day and as from 31 March 2007 the Father is to deliver the child to school the next morning and the Father shall nominate in writing to the Mother the date of his rostered day off immediately upon being notified of that day by his employer and shall supply a copy of his roster to the Mother.
7.15With the Father during Orthodox Easter on Good Friday from 12.00 noon until 9.30 am on the following Saturday in odd numbered years commencing in 2007 and on Easter Sunday from 9.30 am until 4.00 pm in even numbered years commencing in 2008.
7.16In the event that Orthodox Easter falls during a school term with the Father from the conclusion of school on Good Friday until 4.00 pm on the following Saturday in odd numbered years commencing in 2007 and from 4.00 pm on the Saturday until 4.00 pm on the following Sunday in even numbered years commencing in 2008.
7.17In the event that either parent has a significant or special event such as a family gathering, christening, wedding, or other special event then that parent shall give notice to the other parent of their desire for the child to spend that time with them and attend the event and the parents may agree in writing by text message to vary the time that the child is to live with each of them so as to permit the child to attend that event and where a variation of these orders is required then the parents shall arrange for make up time.
Unless specified in these Orders the child shall otherwise live with the Mother at all other times.
To give effect to these orders the child shall be collected by the Father at the start of his time with her at school on a school day or at the Mother’s home on a non school day by parking outside the Mother’s home, remaining inside the motor vehicle and sounding the motor vehicle horn and the child shall leave the Mother’s home and go to the Father’s motor vehicle alone.
To give effect to these orders at the conclusion of the time the Father spends time with the child the Mother shall collect the child from the Father’s home by the Mother parking outside the Father’s home and telephoning either the Father or the child to say she has arrived and the child will leave the Father’s home and go to the Mother’s motor vehicle alone or where the time the child spends with her Father ends on a school day the Father shall deliver the child to school.
Both parents are restrained from changing the child’s name, either formally or by usage.
As to medical treatment each of the parents are required to notify the other of any attendance by the child on any doctor or medical professional and advise as to the need for that attendance and the outcome of such attendance and time and place of attendance and the parents shall provide to the other any medical report they may receive in respect of the child within 7 days of receipt of that medical report.
As to the education of the child each of the parents shall notify the other within 24 hours regarding the child’s non attendance at school for part or whole of any regular school day and the reason for that non attendance.
The parents are permitted to provide copies of these orders to any school the child currently attends or shall attend in the future.
Both parents are restrained from saying anything to or in the presence of the child which is in anyway abusive, belittling or demeaning of the other parent and further are restrained from allowing any other person to say anything to or in the presence of the child which is in anyway abusive, belittling or demeaning of the other parent.
Subject to the advice and approval of the Court Expert both parents are restrained from saying anything to or in the presence of the child about the proceedings between the parents in this Court.
Subject to the agreement of the Father the Mother is restrained from initiating by any means any direct contact or communication with the child while the child is living with the Father pursuant to these Orders.
The parents and the child shall continue family therapy with a registered psychologist or family therapist.
To give effect to Order 18 the parents shall continue to attend with Ms B or other registered psychologist at their election for the purpose of family therapy.
Pursuant to Order 18, should either or each of the parents elect to have therapy with a therapist other than Ms B, they shall provide an authority allowing their therapist to have discussions with Ms B relating to the child.

The child shall continue therapy with Ms B subject to any recommendation by Ms B that this therapy either cease or an alternative arrangement be made.
The Father and the Mother be jointly liable for the costs of therapy to be undertaken with Ms B from time to time.
I note that family therapy is intended to address difficulties in the relationship between the child and her father and also the relationship of the parents and the goal of such therapy is to achieve an outcome where the child is comfortable and happy with living with the Father.
I note that where the parents agree to vary these orders in the course of therapy or otherwise, they may enter into a Parenting Plan pursuant to Division 4 of the Family Law Act 1975 (Cth) which shall be in writing and signed by each of the parents.
Pursuant to s 65DA(2) and s 62B Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parents adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The order made in the Local Court of New South Wales (Family Matters) in early 2005 that the Mother pay the Father’s costs assessed in the amount of $1,941 be discharged.
The order made on 31 May 2006 by a Judicial Registrar that the Father pay the Mother’s costs assessed in the amount of $3,500 be discharged.
All outstanding applications be removed from the list of cases awaiting finalisation.

[2006] FamCA 661

25 July 2006

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Costs

Appeal