Kadar & Doumani

[2007] FamCA 632

FAMILY COURT OF AUSTRALIA

KADAR & DOUMANI [2007] FamCA 632

FAMILY LAW - CHILDREN - With whom a child lives - Cultural issues
FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of child

APPLICANT: Mr Kadar

RESPONDENT: Ms Doumani

INDEPENDENT CHILDREN’S LAWYER: Peter Anthony Lynch

FILE NUMBER: MLF 9920 of 2000

DATE DELIVERED: 27 June 2007

PLACE DELIVERED: Townsville, Qld.

JUDGMENT OF: Monteith J

HEARING DATE: 13, 14 & 15 June 2007

REPRESENTATION

APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Marchetti

SOLICITOR FOR THE RESPONDENT: Pearsons

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Arnold

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr Peter Lynch

Orders

1. All previous parenting Orders be discharged.

2. The mother have sole parental responsibility for the child, J, born … June 1998.

3. The child live with the mother.

4. The child spend time and communicate with the father as follows:

   (a)       Each alternate weekend from the conclusion of school on Friday until 5.00 pm on Sunday;

   (b)       By telephone each Wednesday between 6.30 pm and 7.00 pm, with the father to initiate such calls to the child, and the mother to do all things to facilitate the child receiving such calls from the father, including providing the father with telephone contact details for the child;

   (c)       At such other times as may be agreed between the parents in writing.

5. For the purpose of all changeovers between the parents, where this does not occur at the child’s school, the child be collected and returned to the mother’s residence.

6. The mother be permitted to change the child’s school to L School, subject to the father paying half of the school fees.

7. Each of the parents, their servants and agents, be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent (or that parent’s family) to or in the presence or hearing of the said child, and from permitting any other person so to do.

8. The mother do all things necessary to authorise the child’s school to provide to the father, at his expense, copies of all material ordinarily provided to parents, including copies of all reports, newsletters, and like material, and the father be further at liberty to attend at all school functions and activities where parents are ordinarily invited, including parent/teacher interviews, school performances, and sports days.

9. The mother and the father each be restrained from removing or attempting to remove the said child, J, born … June 1998, the Commonwealth of Australia and it is requested that the Marshal of the Family Court of Australia of Melbourne and all officers of the Australian Federal Police give effect to this order.

FAMILY COURT OF AUSTRALIA AT  

FILE NUMBER: MLF 9920  of 2000

Mr Kadar

Applicant

And

Ms Doumani

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case involves the parenting arrangements for a male child, J, who was born on …June 1998 and so is nearly 9 years of age.  He has a half brother, T, born approximately three months after him.

2. This came about because the father had “married” the mother Islamically in 1997.  I gather from the material that he also had married Islamically T’s mother.  He told Dr J, who provided the first Family Report dated 2 June 2005, that he had two wives and resided with each on a part-time basis.  I am not clear when the relationship between the father and T’s mother terminated but the relationship between the father and the mother ceased either in 1998, according to the mother’s evidence, or 1999, according to the father’s evidence.  The date of separation does not seem to have much relevance.

3. The father was born on … May 1953 and the mother was born on … February 1962.

4. The father gave evidence that he did not have much contact with the child from his birth to the year 2000 and he did not see the child at all in the years 2001, 2002 and 2003.

5. On 29 November 2002, an order was made inter alia, providing that the child reside with the mother and that she have sole responsibility for the long and short term decisions regarding the child’s care, welfare and development.  The father’s contact to the child was reserved.

6. On 30 March 2005, an order was made inter alia, providing that the child spend time with the father each Saturday from 10.00 am to 7.00 pm.

7. Consent orders were made on 13 May 2005, inter alia, restraining the mother and father from excessive physical discipline on the child.

8. By order of 6 June 2005, it was ordered by consent that the father have contact with the child every Friday from after school until 7.00 pm Saturday during school term, every Friday from 4.00 pm until Saturday at 7.00 pm during school term holidays, and by telephone every Wednesday between 6.30 pm and 7.00 pm.

9. On 16 March 2007, Justice Carter gave directions for trial.

10. In December 2004, the mother had to travel overseas and asked the father to look after the child whilst she was away.  The mother returned in February 2005 and shortly thereafter, she ceased the father’s contact.  This was because, after having been with the father for five or six weeks, the child displayed religious intolerance, told her that the father had been denigrating her to him, and it was her view that the father was trying to destroy her relationship with her son.

11. Thereafter, the father’s time with the child was reduced to after school on Friday until 7.00 pm on Saturday each week.

The Proposals

1. The mother seeks sole parental responsibility and that the child live with her.

2. She seeks that the child spend time and communicate with the father each alternate weekend from after school on Friday until 7.30 pm on Saturday and by telephone each Wednesday between 6.30 and 7.00 pm.  She also seeks to change the child’s school.

3. The father seeks that the child lives with him every week from Sunday 7.00 pm until the following Saturday 7.00 pm, the second, fourth and sixth weeks of all terms’ school holidays, the second and fourth week of the month of Ramadan, the first half of Eid AlFutr and Eid AlAdha.

4. He seeks that the child lives with the mother every week from Saturday 7.00 pm until the following Sunday at 7.00 pm, the first, third and fifth weeks of all terms’ school holidays, the first, third and fifth weeks of the month of Ramadan, the second half of Eid AlFutr and Eid AlAdha with unrestricted telephone contact.

5. The Independent Children’s Lawyer submitted that I should make orders that the child live with the mother, that she should have sole parental responsibility, that the child should attend an Islamic school only if the father pays half of the fees, that the child should spend alternate weekends with the father from after school on Friday until 5.00 pm on Sunday, that the child should spend from after school on each alternate Wednesday to 8.00 pm with the father, and half of all school holidays.

Family Reports

1. Two Family Reports were prepared, one by Dr J dated 2 June 2005 and the other by Ms L of 27 November 2006.  The father did not seek to cross examine either of them.  I set out some of the relevant matters from Dr J’s report hereunder:

   34.When asked what effect it had on [J] to participate in the previous midweek contact arrangement, [the mother] said that [J] was “stressed” as evinced by, “he didn’t want to go to his father.  When he came home he was overactive”.  She also described [J] engaging in other atypical behaviours.  “His attitude was different” including but not limited to engaging in clingy behaviour, wanting to watch television and “he just wanted to talk”.

   …

   35.When asked about her perception of [J’s] relationship with his half sibling, [T], [the mother] said, “sometimes he’s a friend and sometimes he’s not”.  While she said that she is not present to observe the boys together, [J] has informed her that [T] teases him and might also hit him.

   INTERVIEW WITH J:

   40.After a period of rapport building, the writer turned to [sic] focus of discussion to [J’s] family.

   41.[J] told the writer that he lives most of the time with his mother and visits his father “on Saturdays”.

   42.When asked what is [sic] like living with his mother, [J] said, “I get to play on the computer”.

   43.When asked what is the best part about living with his mother, [J] said, “I get to watch TV”.

   44.When asked what is the worst part about living with his mother, [J] said, “nothing”.

   45.When asked what it is like visiting his father, [J] said, “I play there”.

   46.When asked what is the best part about visiting his father, [J] said, “nothing”.  When asked if there were [sic] anything he liked about visiting his father, [J] said, “no, because he doesn’t watch TV.  He has a computer but he doesn’t let us play on the computer”.

   47.When asked what is the worst part about visiting his father, [J] said, “He hits me”.  When asked, [J] said the last time his father hit him was “a long time ago”.  When asked, [J] said that this occurred before his mother went overseas.

   48.When asked about his wishes regarding a future contact arrangement, [J] said that he wanted to have “less” contact with his father than he does at present.  When asked why, [J] said, “Because I don’t like going to his house because I can’t watch TV.  I can’t do nothing.  I can only pray and read books and play with toys(sic)”.

   49.When asked What is [T] like?  [J] said, “He’s good.  Sometimes he’s a bit silly like he teases me.  Sometimes he hits me”.  Upon clarification, [J] said that [T] is “mainly good”.

   50.[J] told the writer than [T] lives sometimes with his mother and sometimes with his father.  When asked what it would be like to live sometimes with his mother and sometimes with his father, [J] said, “I wouldn’t like to”.  When asked why, [J] said, “Because I don’t get to do nothing at my Dad’s.  I want to stay with my Mum forever and ever”.

   51.[J] acknowledged that if he visits his father less frequently than at present, he will also see less of [T].  When asked what is [sic] might be like for him, [J] said, “not good but sometimes he teases me and sometimes he hits me”.

   52.When asked, Who doesn’t let you where [sic] T-shirts and striped socks?  [J] said, “My Dad”.

   53.When asked, [J] said that his father prevents him from attending his friend’s [sic] birthday parties.

   54.[[J] impressed the writer as an animated, spirited and articulate child.  The  writer noticed that [J] had some missing teeth but this impressed the writer as consistent with his age.  His fingernails were present;  his hair did not impress the writer as unusually thin.  [J’s] eyes did not flicker and his gate [sic] impressed the writer as unremarkable].

   OBSERVED INTERACTION BETWEEN [J] AND [THE FATHER]

   55.[The father] impressed the writer as softly spoken and patient in his explanation of the rules of game play and while assisting [J] with his play activities.  [The father] did not impress the writer as child focused.  For example, [J] was obviously bored at least during the first half of the observation session.  [The father] seemed oblivious to [J’s] boredom.

   …

   61.The writer observed an obvious relationship between [J] and his mother.  For example, [J’s] animated behaviour, laughter and smiles suggested he enjoyed interacting with his mother and with her husband.  [J] oriented most of his talk and play towards his mother.

   …

   73.It is the writer’s opinion that [J] is neither old enough nor mature enough to determine his own best interests regarding a residence and/or contact arrangement.  This notwithstanding, it is the writer’s opinion that it is important to ascertain a child’s wishes in these regards.  When asked, [J] not only told the writer that he did not want to participate in a shared residence arrangement, he told the writer that he wanted to decrease the amount of contact he has with his father.  [J] said his reasons for this included that he does not get to watch television or use the computer while in his father’s care and, instead, prays, reads books and plays with toys.  The writer formed the impression from speaking with him that [J] experiences contact with his father as essentially boring.  The writer notes that [J] also told him that he wanted to remain residing with his mother “forever and ever”.  The writer has no reason to think that [J’s] expressed wishes are anything other than a genuine reflection of his own thoughts and feelings.

   …

   75.It is the writer’s opinion and experience that a shared residence arrangement is appropriate only if the parties are able to communicate about and coordinate issues that relate to the child’s care.  Unless this occurs, an unacceptable level of risk exists that the child will be disadvantaged in innumerable ways including but not limited to educational and health-care matters.  While the writer has information to suggest that [the father] and [mother] have a history of being able to communicate about and coordinate issues that relate to [J’s] care, he also has information to suggest that [the father] and [the mother] cannot do so at present.  It is the writer’s opinion that if the Court were to order a shared residence arrangement, an acceptable level of risk would exist that [J] might be disadvantaged as described above.

   …

   77.Further to the structure of a shared residence arrangement proposed by [the father], it is the writer’s opinion and experience that midweek contact including midweek overnight contact has the potential to be disruptive to a child including but not limited to educational matters.  Furthermore, [the father’s] proposal requires [J] to swap homes frequently.  This arrangement is unlikely to lead to [J] having any sense of stability or continuity of care.

   78.For the above reasons, it is the writer’s opinion that a shared residence arrangement is inappropriate for [J] and the writer recommends that an order to this effect not the [sic] made.

   …

   82.The writer has formed the impression that [the father’s] pursuit of immersing [J[ in his ([the father’s]) and [sic] religion/culture is likely to be problematic for the development and maintenance of a relationship between [J] and [the father].  That is, it is the writer’s opinion that [J] is a child growing up in a Western context with Western influences and who enjoys the aspects of Western culture enjoyed by most children of his age in Australia.  [The father’s] emphasis as described above apparently has led [J] to wish for a reduction in the amount of contact he has with his father.  It is the writer’s opinion that [J’s] experience of his father’s values might further alienate [J] from [the father] as [J] grows older.  The writer does not wish to be seen as having an opinion about the values [the father] holds.  Instead, the writer wishes to be seen as attempting to make recommendations that will enhance [J’s] relationship with his father.  Therefore, it is the writer’s opinion that [the father’s] somewhat stark and potentially dogmatic views and their translation into how he conducts his relationship with [J] is unlikely to foster anything other than a complaint relationship between [J] and [the father].

   83.The writer’s above opinions notwithstanding, it is his opinion that apart from [the mother’s] allegations that [the father] expresses bigoted opinions in [J’s] presence and that this might translate into [J] acquiring such opinions, the writer has no other reason to think that [J] is at risk in his father’s care.  Therefore, with specific undertakings (see below), the writer can see no reason to prevent [J] from having regular and frequent opportunities to develop and maintain a relationship with [the father].  The writer recommends that [J] have face-to-face overnight contact with [the father] on alternate weekends from the conclusion of school Friday until the commencement of school Monday morning, half of all school holidays including half of the extended summer school holidays, half of the special dates including but not limited to important religious holidays and Father’s Day as well as at other times by agreement between [the father] and [mother].

   86.The writer recommends that [J] have regular and frequent opportunities to develop and maintain a relationship with [the father] in the form of telephone contact.  The writer recommends that [J] have telephone contact with [the father] on Wednesdays and non-contact Sundays between 6:30 PM and 7:00 PM initiated by [the father]. 

2. I set out hereunder the relevant matters from the second Family Report of Ms L –

   10.…she said that she and [the father] do not talk at all as he sees her as the enemy.

   …

   16.In regard to her wish to have [J] change schools, [the mother] said that she does not have a problem with the school being Islamic, and would send [J] to either a private or public school near them.  She said the problem was that the school was too far away from them.

   …

   19.[J] was 8 years old and in Year 2 at [P School].  He said that he likes sports, Mathematics, Science and English at school, has many friends there, and enjoys playing on computers, “not fixing them”.  He was a reserved child who seemed to take a while to become comfortable in the situation, and at times was wary with what he said, but the impression was that he was bright and that the views he expressed were his own.  [J] said that his mother had told him that he was coming and that he would have to “tell things”, like “what life he wants to choose – go with Dad or her.”

   20.[J] said he sees his father every week but likes living with “Mum”.  At his father’s place [J] said he prays, reads, plays Lego and sometimes they go to other people’s houses.  He said that they have to go to the mosque in the middle of the night for the first prayer, adding that his father is very religious.  At his mother’s place [J] said that he can play games or watch television, but that his father does not have those things and did not want him to do them at his mother’s either.  When asked how he got along with [T], [J] said he plays with him “sometimes”, but that [T] punches him and “annoys me a lot.”  He said that sometimes his father punished [T], but other times would say that he was only playing.

   21.In regard to the amount of time that he is spending with his father, [J] thought it could be a “bit less” and said it was “not fun”.  When asked if he feels “OK” at his father’s place, [J] looked uncertain and then indicated with a hand movement that he was equivocal, saying this was mainly because of his brother.  He said that his father is good to him but sometimes says “not so nice” things about his mother.  [J] said this makes him feel sad and he tells his mother, adding that he “can’t keep a secret to Mum”.

   22.[J] said that he has “fun” at home at his mother’s place, and that his mother cares about him and buys him a lot of things.  He said his big brothers are not “mean” to him, let him do things like play on the computer, and teach him to draw and read.

   23.When [J] was seen with his mother the interactions between them were warm and positive.  [The mother] encouraged [J] when they were playing a memory game and helped him set up and play a game in the sandpit.  [J] chatted to his mother about his dreams of the house they would have and wanted to show her what he was doing with the toys.

   24.…However, it can be said that if the parents do not communicate at all, as [the mother] indicated, and the households are run on such diverse lines, then a shared care arrangement would not be viable.

   …

   26.It is of considerable concern if [J] expresses the thought that he is going to die while at his father’s home, and if he is still wetting the bed prior to visiting there.   The reasons for this could not be fully explored but there are several alternate explanations.  One would be that [J] is worried and frightened when he visits his father.  Another might be that it is symptomatic of the conflict between the parents and [J] cannot reconcile their very different ideas about life.  Yet another could be that [J] is an anxious child who deals poorly with any stress such as his brother [T] tormenting him.

   27.On the limited information available there does not appear to be any reason to recommend a change in [J’s] living situation.  [The father] possibly needs to consider how his regime is affecting [J], and also how [J] and [T] are relating, and try to accommodate [J’s] needs in these matters.  For one thing [T] should not be put in the position of questioning his brother if this is indeed occurring, and [the father] should also refrain from criticising [the mother] to [J].  If nothing changes in this regard and [the father] can give no assurances that this will be the case, then it might be helpful to [J] to see his father and brother less often.

   Recommendations

   28.That [J] live with his mother and see his father at least once a fortnight, but possibly once a week, depending on the evidence of the father in this regard.

The Father’s Evidence

1. During the course of the father’s evidence, he made some quite extraordinary claims.  He claimed that J is afraid of his mother and he was unsure whether J loved his mother.  He conceded that they were different households and that they lived in different ways.  He tendered a statement, by consent, which was intended to show the wishes of the child, yet demonstrated a total inappropriateness by the father in respect of subjecting the child to cross examination which shows a complete lack of any insight by the father.

2. He made quite unfounded claims such as the child was missing school one day a week, the mother does not take the child for medical treatment, that the mother’s current husband sexually molested the child.  It seems the evidence for this is that the child sits on his step-father’s knee when his step-father hugs him and the child sits in the front seat of the car when being driven by his step-father.  The father made the quite extraordinary claim that the step-father used to keep pigeons and everybody knows that anybody who keeps pigeons is a child molester.

3. In relation to TV in the home, he said that TV is harmful for children and that as a result of TV, J’s eyes were no longer any good because he is watching too much TV and playing computer games.  There is absolutely no evidence to that effect.

4. He gave evidence that he disagreed with the Family Reports.  He said he did not know why they were so important.  He did not think this was a good way to get information about children.  He, in fact, refused to participate in the second Family Report.  He said that the mother had influenced the boy to say the things that are recorded in the Family Reports.

5. He said that the mother treated the children like pets, she did not look after them, that he feels negative about the mother and that he has not tried to hide how he feels about her from the child.

6. He made the quite extraordinary claim that she practices magic and that he believed that the child was touched by magic by mother.

7. The father conceded that he and the mother do not communicate and that he is unable to talk to her about any of the important matters relating to the child.

The Mother’s Evidence

1. She gave evidence that she agreed to enrol J at his current school to please the father so that J and T could attend the same school.  However, she gave evidence about the desirability of the child attending a school closer to her residence.

2. She was cross examined at length by the father and I accept all of her evidence.  I agree with the report writers in relation to her parenting ability.

3. I have no doubt that it is in the child’s best interests that he live with the mother.

Other Evidence

1. All of the other evidence supports the conclusion that J is doing extremely well at school and is being well looked after by his mother.  There have been incidents, including an Incident Report which is Exhibit 3, with the father where he has behaved quite inappropriately at the school and elsewhere and his behaviour towards J has created concerns for the child and resulted in the child expressing the views to the report writers that I have already set out.

Mid-week Time

1. The mother resists an order for alternate Wednesday night time to be spent with the father.  She gave evidence that to make such an order would put the child under unnecessary pressure.  I agree.

Schooling

1. J presently attends a school with his half brother T, and the mother gave evidence that she was pressured into this by the father.  It is some distance from the mother’s residence and takes the child an hour and three-quarters by school bus.  In my opinion, it is clearly not in the child’s best interests to continue to attend at this school. 

2. The mother gave evidence as to schools much closer to her residence, two of which are State schools and one of which is an Islamic school.  The State schools are within walking distance and the Islamic school is only a few minutes by car, which happens to be on the way to her work.

3. I accept the submission made on behalf of the Independent Children’s Lawyer that the child should attend an Islamic school as it will take the pressure off him, because at an Islamic school, he will be taught Arabic, the Koran and religion.  This should relieve some of the pressure that the child feels when in the care of the father.  I further accept the Independent Children’s Lawyer’s submission that I should only make such an order if the father pays half of the school fees.  He presently pays $800 to the current school and on the evidence before me, half of the school fees would be approximately $1,000.  It seems to me to be appropriate to make such an order.

Section 60CC

Primary considerations

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

1. I consider that it is to the benefit of the child to have a meaningful relationship with both of his parents in this case.  However, I consider that it is necessary to limit the amount of time that he spends with the father, because of the father’s behaviour and his rigid religious beliefs.  Any further significant exposure to the father is likely, in my opinion, to be detrimental to the child. 

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

1. I consider it necessary to limit the exposure of the child to the father both with respect to physical and psychological harm, having regard to the evidence before me about the father’s past conduct.

(3) Additional considerations are:

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

1. Although the child is young he is expressing a clear desire to spend less time with his father.  This is not surprising having regard to the evidence before me.

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

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

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

1. I accept the evidence that the child has a close and loving relationship with his mother.  His relationship with his father is much more problematic and his relationship with his half-brother is also a matter of concern.  The father’s apparent inability to control T with respect to his behaviour to J is of concern.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. Although the mother has concerns about the further exposure of the child to his father, I think she is willing to facilitate and encourage a continuing relationship.  The father has made such extreme, unsubstantiated and extraordinary allegations against the mother that I have grave doubts that he can facilitate and encourage a close and continuing relationship between the child and the mother.  Her evidence that after the child had been with the father whilst she was overseas, she had come to the conclusion that the father was seeking to destroy her relationship with the child is a view that I accept.

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

(i)either of his or her parents; or

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

1. The child has spent most of his life with his mother and been comparatively little with his father.  To change that at his age would be, in my opinion, most detrimental.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis.

1. I do not consider this to have any significance in this case. 

(f)the capacity of:

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

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

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

1. Both parents, I believe, are able to provide for the needs of the child but I think the father’s capacity to provide for the emotional needs of the child are circumscribed by his rigid beliefs.

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

1. Both parents are of the Islam religion and of the same sect.  However, the mother is much more child-focussed and aware of the child’s needs.  The father, on the other hand, is not child-focussed and is much more concerned with his needs and imposing those upon the child.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. This is not relevant.

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

1. The mother has displayed an attitude to the child and to the responsibilities of parenthood which are highly commendable.  The father, on the other hand, has shown a complete lack of insight and, in my opinion, has been positively destructive of the relationship between the child and the mother.

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

(k)any family violence order that applies to the child or a member of the child’s     family, if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

1. This is not relevant.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. Whether this can be achieved is problematic having regard to the history of this matter.

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

1. I do not think there are any other relevant circumstances in this case.

2. Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which  each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (a)  has taken, or failed to take, the opportunity:

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

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child; and

   (b)  has facilitated, or failed to facilitate, the other parent:

   (i)  participating in making decisions about major long‑term issues in relation to the child; and

   (ii)  spending time with the child; and

   (iii)  communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

1. I have dealt with these matters under the primary considerations and additional considerations.

Section 61DA – Presumption of Equal Shared Parental Responsibility

1. On the basis of the evidence before me, the presumption has been rebutted by evidence that satisfies me that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  They are completely unable to communicate and have completely different households and equal shared parental responsibility simply would not work.  As was put to me by the Independent Children’s Lawyer with respect to the father, it was his way or no way.

2. In the circumstances of this case, I consider that the child’s best interests would be served by making orders as proposed by the mother.  Therefore, I propose to make the orders as sought by the mother, save that I consider that it is in the child’s best interests to spend each alternate weekend with the father, rather than simply from after school on Friday until 7.30 pm on Saturday.

Orders

(1)All previous parenting Orders be discharged.

(2)The mother have sole parental responsibility for the child, J born … June 1998.

(3)The child live with the mother.

(4)The child spend time and communicate with the father as follows:

(a)Each alternate weekend from the conclusion of school on Friday until 5.00 pm on Sunday;

(b)By telephone each Wednesday between 6.30 pm and 7.00 pm, with the father to initiate such calls to the child, and the mother to do all things to facilitate the child receiving such calls from the father, including providing the father with telephone contact details for the child;

(c)At such other times as may be agreed between the parents in writing.

(5)For the purpose of all changeovers between the parents, where this does not occur at the child’s school, the child be collected and returned to the mother’s residence.

(6)The mother be permitted to change the child’s school to L School, subject to the father paying half of the school fees.

(7)Each of the parents, their servants and agents, be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent (or that parent’s family) to or in the presence or hearing of the said child, and from permitting any other person so to do.

(8)The mother do all things necessary to authorise the child’s school to provide to the father, at his expense, copies of all material ordinarily provided to parents, including copies of all reports, newsletters, and like material, and the father be further at liberty to attend at all school functions and activities where parents are ordinarily invited, including parent/teacher interviews, school performances, and sports days.

(9)The mother and the father each be restrained from removing or attempting to remove the said child, J, born … June 1998, from the Commonwealth of Australia and it is requested that the Marshal of the Family Court of Australia of Melbourne and all officers of the Australian Federal Police give effect to this order.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith.

Associate:   

Date:  27/6/07

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