KALLAS & KONDOS

[2015] FCCA 3242

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALLAS & KONDOS [2015] FCCA 3242

Catchwords:
FAMILY LAW – Entrenched parenting dispute about 6 year old child – parents mutually detesting one another – mother resistant to child spending overnight time with father – father seeking far more time with the child – father’s total lack of insight – father’s determination for ongoing litigation – further litigation against child’s best interests – modest increase in time ordered as sought by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.60CC, 61DA(4)

Goode v Goode [2006] FamCA 1346

Applicant: MS KALLAS

Respondent: MR KONDOS

File Number: MLG 2693 of 2010

Judgment of: Judge Burchardt

Hearing dates: 10, 11 & 14 September 2015

Date of Last Submission: 14 September 2015

Delivered at: Melbourne

Delivered on: 11 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Ambrose

Solicitors for the Applicant: Rockman & Rockman

Counsel for the Respondent: Ms Carter

Solicitors for the Respondent:

Counsel for Independent Children’s Lawyer:

Solicitors for the Independent Children’s Lawyer:

Coote Family Lawyers

Mr Eidelson

Clark Family Lawyers

DRAFT ORDERS

1. The Mother shall have sole parental responsibility for the child X born (omitted) 2009 (“the child”).

2. That the child live with the Mother.

3. That the child spend time with and communicate with the Father as follows:-

   (a)on each alternate weekend from Saturday 10:00am until Sunday 4:00pm., commencing 6 February 2016;

   (b)on each alternate Friday from 3:15pm until 6:30pm., commencing 29 January 2016;

   (c)As and from the commencement of term two in 2016, the Father's time referred to in order 3(a) above shall extend from Friday at 3:15pm until Sunday at 4:00pm.

   (d)During term holidays, commencing term one in 2016, the father shall spend time with the child on each alternate weekend from Friday at 9:00am until Sunday 4:00pm, using the same pattern of weekends with the child as occurring in relation to order 3(a) above. Otherwise orders 3(a) and 3(b) shall be suspended during term holidays ·

   (e)During summer holidays 2015/16, the Father shall spend time with the child on each alternate weekend from Friday 9:00am until Sunday 4:00pm., and during summer holidays thereafter, the Father shall spend time with the child on each alternate weekend from Thursday 9:00am until Sunday 4:00pm.

   (fa)from 10.15am on 12 December 2015 with changeover at Berry Street Contact Centre until 4.45pm on 14 December 2015 with changeover at the (omitted) Hospital;

   (f)Special Occasions

   (i)If the child's birthday falls on a school day, from after school until 5:30pm and if the child's birthday falls on a non school day, from 10am until 2pm in odd numbered years and from 2pm until 5:30pm in even numbered years.

   (a) the Father and Mother agree that each parent is to host their own family birthday celebrations for the child and the Mother shall arrange all class party requisites in accordance with school policy food guidelines.

   (ii)from 10:00am on 24 December 2015 until 10:00am on 25 December 2015 and each alternate year thereafter, and from 10:00am on 25 December 2016 until 10:00am on 26 December 2016 and each alternate year thereafter.

   (iii)from 5:00pm Greek Orthodox Easter Saturday until 5:00pm Greek Orthodox Sunday in 2016 and each alternate year thereafter, and from 5pm Greek Orthodox Good Friday until 5:00pm Greek Orthodox Easter Saturday in 2017 and each alternate year thereafter.

   (iv)On 1 January 2017, from 10:00am to 5:00pm and each alternate year thereafter.

   (v)On Melbourne Cup Day 2016, from 10:00am to 5:00pm and each alternate year thereafter.

   (vi)On Father's Day from 10:00am until 6:00pm, and in the event that the Father's time with the child pursuant to these orders shall fall on Mother's Day, then his time with the child shall be suspended from 10:00am on that day.

   (vii)On the Father's birthday, should it fall on a school day from after school until 6:00pm, and on a non school day from 10:00am until 6:00pm., and in the event that the Father's time with the child pursuant to these orders, shall fall on the Mother's birthday, then his time with the child shall be suspended from after school until 6:00pm on a school day and from 10:00am until 6:00pm on a non school day.

   (viii)On the Father's Name day on the 21st May, should it fall on a school day from after school until 6:00pm, and on a non school day from 10:00am until 6:00pm, and in the event that the Father's time with the child pursuant to these orders shall fall on the Mother's Name Day, then his time with the child shall be suspended on a school day from after school until 6:00pm, and from 10:00am until 6:00pm on a non school day.

   (g)As otherwise agreed in writing.

4. All changeovers which are scheduled by these orders or agreement in writing to commence from the conclusion of school, shall occur at the child’s school. Where a changeover is not scheduled by these orders or an agreement in writing to occur at the child's school, it shall occur either at the Berry Street Contact Centre in (omitted), with the Father and Mother to share the costs of the Contact Centre facilitating same, or in the event that Berry Street is unable to facilitate changeover, it shall occur at the (omitted) Hospital entrance.

5. Each party be at liberty to authorise a family member to effect changeover on their behalf.

6. That the Mother is restrained from taking the child to Mr G.

7. The Child shall continue to attend (omitted) School, subject to any agreement in writing otherwise by the parents. ·

8. That the child shall be baptised in accordance with the agreement of the parties reached at the Court on the 11 September 2015.

9. The parties shall attend upon Family Counsellor and Psychologist Ms L from time to time in the event that they require assistance in relation to the operation of these orders or in relation to any request by either of them to adjust these orders, and her costs shall be paid by the parties in equal proportion. Each party shall use their best endeavours to achieve a reasonable compromise with the assistance of Ms L, prior to resorting to further litigation. In the case of the Father he shall not be required to attend upon Ms L, more often than once in each month, in the event that Ms. L reasonably believes that his attendance upon her would be in the child's best interests.

10. That both the mother and father attend the child’s first day of school each year and the parties agree that no other family member or friends will be in attendance.

11. Both parents are at liberty to attend all school functions and extra curricula activities to which parents are routinely invited.

12. The mother hereby authorize and request the child’s school provide the father with copies of the children’s school reports, newsletters, photo-order forms and the like to the father, at his expense, if any.

13. In the event that the mother considers the child is unable to spend time with the father due to illness for any of the time set out in these Orders, the mother will:

    13.1.Notify the father by text or email;

    13.2.Obtain a medical certificate from the child's GP advising of:

    (i)the child's illness;

    (ii)the medical reason why the child is unable to spend time with the father; and

    (iii)The treatment provided by the medical practitioner;

    13.3.Make up time shall occur at the same time and on the same day the following week as the time missed, unless otherwise agreed in writing.

14. The parents shall forthwith inform and keep the other informed of any serious illness, injury or accident suffered by the child, and shall also provide the other parent with complete details of the child’s treatment for same.

15. Both parents are at liberty to liaise with any doctor, medical or allied health or like professional upon whom the child attends from time to time, and are hereby authorized to be provided with details of her treatment, prognosis and attendance.

16. In the event the child is hospitalized both parents are at liberty to attend at the hospital to visit with the child.

17. Each of the father and mother provide to the other 28 days’ notice of any proposed change of address and forthwith notify the other of any change to their contact telephone number or email addresses.

18. Each party is at liberty to take the child interstate during periods when the child is in his or her respective care, with the travelling party to provide to the other party 28 days before departure, details of the child’s travel arrangements and contact details.

19. Each of the father and mother, their servants and agents, be and are hereby restrained from denigrating the other in the presence or hearing of the child or permitting any other person to do so.

20. Whilst the child is in the care of either party, the other party will not intervene or interfere with the child during that time.

21. Each party shall ensure the child is enrolled at school, extracurricular activities and recorded on all official enrolment and registration documents in accordance with her birth certificate “X” and the child shall be known as “X”.

22. That the application of the mother filed on the 12 November 2013 and the response of the father filed on 18 November 2013 be otherwise dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

B.The parties agree that for the purposes of order 13, minor illnesses and ailments, such as common colds, will not preclude the child from spending time with her father in accordance with these Orders.

C.Each party has liberty to apply regarding overseas travel with the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2693 of 2010

MS KALLAS

Applicant

And

MR KONDOS

Respondent

REASONS FOR JUDGMENT

Introductory

1. This case is a parenting dispute about the best interests of a child whom I will refer to as X (as the parties essentially have done) born (omitted) 2009. The applicant mother seeks to retain a pattern of time spent with the father more limited than that which the father is prepared to accept.  The position of the Independent Children’s Lawyer is substantially the same as that of the mother, although over time the Independent Children’s Lawyer opposes an extension of the current regime.

2. For the reasons that follow, I am going to make orders as sought by the Independent Children’s Lawyer, save to the extent that the parties otherwise consent.

Background overview

1. As already indicated, X was born on (omitted) 2009.  The parties have been litigating about her since 24 March 2010 on what must be described as effectively an ongoing, unremitting war of attrition. 

2. It is not necessary or appropriate to detail the protracted course of the litigation between the parents.  It is sufficient for present purposes to note that (albeit these are rather general characterisations) it has been the mother’s position that the father is domineering and controlling, and that his endeavours to spend time with X have led the child to become deeply distressed and to engage in aggressive behaviour.  It is the father’s case that the mother is, at all points, seeking to prevent him from spending time with the child and that, contrary to the mother’s position, the child is happy and contented when in his care.

3. It should be noted that there has been a quite staggering amount of professional assistance given to these somewhat insightless parents.  I have not counted them myself, but nobody disagreed with a submission made by the Independent Children’s Lawyer’s counsel in closing submissions that there have been as many as 14 reports involving psychologists Ms W, Mr G and Dr S, together with extensive assistance provided by Ms L, who has herself provided a number of reports from time to time.

4. It is common cause that, despite everyone’s best efforts, the parents continue to detest one another.

Reports of Dr S

1. In the particular circumstances of this case, it is appropriate to start this judgment by reference to the reports of Dr S.  It should be noted that he was not required for cross-examination and, in my view, I am therefore not only entitled but bound to accept the force of his reports, unless I am able to form a different view based upon my observation of the witnesses.  It should be noted that I have not formed a different view based upon my observations of the witnesses.

The first report

1. The first report of Dr S dated 21 December 2013 can be paraphrased fairly briefly as it has been, to a significant extent, overtaken by events.  Dr S reported his assessments of the parents and noted the histories they gave him.  He noted that the father had a somewhat rigid personality style (paragraph 6), and having seen X with her father, he stated at paragraph 34:

   “In summary, the evaluation indicated, despite the child’s behaviour, the child appears to have a sound relationship with the father, the mother and grandmother are supporting the daughter’s withdrawal from the father through enmeshment with grandmother (especially) and mother.”

2. At paragraph 59, Dr S noted:

   “Overall, the interaction raised significant concerns about the child’s ability to be contained emotionally.  There were concerns that the child did not disengage from the grandmother and that the mother could not contain the child’s emotions or behaviours.  The mother presented a picture of ineffectual parenting.  The behaviour in itself did not simply represent separation anxiety.  The child wailed rather than cried, she did not appear tearful or anxious.  There was evidence of marked enmeshment with the grandmother.  The behaviour appeared to be a picture of a struggle for control.  I note in the interaction, the mother is not self protective and appeared to be unable to interpret the child’s behaviours or emotions as requiring containment.”

3. At paragraphs 74-78 the report continued:

   “This evaluation additionally identified an almost complete lack of trust between the mother and the father.  The mother does not trust the father to be psychologically protective of the child.  The father believes the mother and grandmother are not supporting the father’s time at any significant level. 

   Additionally, the mother has reported that she considers it is likely that the father will continue to push for more time with the child progressively and sees this process occurring in a relentless fashion over time, with her going back to Court increasingly throughout the child’s life. 

   It is likely that this context is central to the child’s recent presentation.  It is highly likely, based on the current evaluation, that the child implicitly responds to the anxiety of the mother and the grandparents about the child spending time with the father.  Additionally, there were ineffective parenting strategies and a lack of ability for the mother to calm the child. 

   The involvement of Mr G, while at one level is understandable from a variety of perspectives and it is clear that he has worked to maintain neutrality in relation to this matter, may have become a vehicle for the mother and her family for the reduction in time between the child and the father.  Any individual explanations of the child’s behaviour do not account for the systemic issues of the child responding to the grandmother’s and mother’s distrust of the father and fear of a continued escalation of time between the child and the father. 

   For this reason, it is relevant to consider this child’s behaviour as representative of parental triangulation, with there being “behaviour and response to expectation and conflict”, driven by contextual dysfunction between the parents.  The parents’ inability to negotiate appropriate time in an appropriately neutral emotional context has led to the child’s response, and this behaviour is then displayed subsequent to those issues remaining unresolved.  In this matter it is less appropriate to ascribe an individual psychological diagnosis to the child when the child’s behaviour is a function of the family’s unresolved conflict and lack of cooperation.”

4. Having recommended at paragraph 80 better communication between the parents, and noted that there was a relationship between the father and the child at paragraph 81, the report relevantly concluded at paragraph 82:

   “Despite the above, the prognosis for this matter is uncertain, and considering the length of the conflict and the Court involvements, a pessimistic position would be understandable.  The child has clearly been very negatively affected by the parents’ inability to deal with each other, and both are protecting their own positions, with little regard to the effect of the conflict itself on their child.”

The second report

1. The second report dated 24 August 2015 paraphrased the past history of the matter and some of the past events and went on to record at paragraph 11:

   “Ms Kallas emphasised practical changes which had occurred since the previous assessment.  She reported that X was now attending school as this had been facilitated by an orientation at the end of 2014 and she had only had three days absent out of 110 in 2015, a substantial change considering she had substantial problems with kindergarten in 2013 and 2014.  She reported that she enjoyed her school and had been at (omitted) School over 2015, with twelve in the class, with both a teacher and an assistant in charge.  This had been facilitated by Ms L, psychologist.  Ms Kallas spoke at length about the involvement of Ms L and attributed many of the gains to the negotiation that she had undertaken with the family.  The mother spoke very highly of the school and X’s progress, academically and socially.  Ms Kallas has developed positive and close relationships with a series of the families.”

2. The report noted an incident at (omitted) School in March 2015 in which the mother alleged that the father called her a “fat cow” in Greek (this led to a letter to the father to which he responded with denials).  The report noted, correctly, that the father did not want the child to go to (omitted) School but rather to (omitted) Primary School and noted difficulties over the choice of dentist to undertake dental work on the child.  The report also noted at paragraph 13 the mother’s doubts as to the father’s professed inability to contribute to the child’s upbringing financially.

3. The report noted that there had been two overnight times spent with the father in July and August 2015 with additionally an afternoon pick-up in the intervening week.  The mother continued to assert to Dr S that the child becomes distressed in the lead up to this time, and noted that she thought that the child slept with the father in the same bed.  The report further noted the relationship between the mother and her new partner, Mr F, which has subsisted for two years, he having a daughter aged five with whom X gets along well when she is with them.

4. At paragraph 22, Dr S noted:

   “X presented dramatically differently than her previous evaluations in 2013 and 2014.  Apart from having minor pronunciation difficulties she presented normally.  She engaged with the examiner over a period of approximately one hour and it was only in the latter part of the evaluation that she wished to finish early.  Her play and engagement with her mother was normal.  She separated relatively easily for her age and stage and was able to be with the examiner in meaningful discussion, playing and drawing.  Her relationship with her father has developed.”

1. At paragraphs 26 and 27 the report noted some reservations of the child about overnight time, and at paragraph 28 Dr S stated:

   “X reported that when she was drawing a picture of her mother and herself, she stated her father said, “draw a picture of him on the back....usually he’s mean.”  She reported that she wants to go shopping, and when they do go shopping, her father does not buy her toys.  She went on to say that he was “angry...he shouts”, “he says write your name properly”.  When asked about any physical discipline such as smacking, she stated “yes” but then indicated she did not know where and that this happened a long time ago.”

2. At paragraph 30 the report notes:

   “When her father arrived for time (interaction) there was an initial negative reaction and she warmed up over time although it was relatively hard fought and required a substantial amount of work from the father.”

3. When evaluating the father at paragraphs 31-33, the report stated:

   “Mr Kondos is a 43-year-old man who presented similarly to previously.  He speaks in a loud voice.  He was highly anxious and at times, circumspect, obsequious and superficial.  Throughout the evaluation, he also presented somewhat differently than previously, presenting significantly more as angry and rigid.  He spoke at length about Court, with determination to return to Court if matters do not progress appropriately (or do not effectively go his way).  His personality rigidity was marked.  He was highly defensive when challenged or when insight was required.  His presentation in speaking about Court or issues in relation to the child, is that the matter appeared to be about a contest and focussed on winning. 

   There was subtle pressure placed on the examiner throughout the evaluation to produce recommendation that would fit with the father’s view.  He was circumspect about a variety of matters including financial issues. 

   Throughout the evaluation, Mr Kondos referred to X as “my daughter”, rather than referring to her by her name, or any alternative.”

4. The report records the father’s clear view that the mother has been constantly attempting to stifle his time with his child, that time was going well when he did see X, and his desire to have a fifty-fifty shared care regime.  He confirmed his view that the mother would deliberately keep X up late at night before seeing him in order to have her tired and grumpy when she did so.  The report records the father’s correct assertions that he and the mother are unable to agree on issues to do with X’s health, including dental treatment, school and travel.  He noted there might be a necessity to return to Court to decide any questions of overseas trips.  Tellingly, at paragraph 42, the father stated, “I anticipate further applications to the Court, I won’t just be alienated.” 

5. Under the heading “Qualitative Information” on page 22 of 35, Dr S recorded his observations of the time the father spent with the child.  The concluding two paragraphs read:

   “Overall, there was evidence of only fair parenting skills, with a tendency towards control, with a rather rigid interpersonal style.  Nevertheless, the father’s persistence is an important factor in the development of the relationship. 

   Overall, the interaction suggested the relationship has developed, but the quality is only fair, and this appears to be partially related to parental skills/approach.”

6. The report records interviews with Mr F and Ms A (the father’s sister) in terms that, in my view, are unremarkable.  I note that Mr F is supportive of the mother (they intend to marry in the near future) and that he had developed a positive relationship with X.

7. The report also paraphrased the reports made by Ms L.  At paragraph 58, the report asserts:

   “The following issues are relevant:

   (i)  The school.  X has made substantial gains at (omitted) School.  This appears to have had a central role in increasing her social and emotional development.  Based on the account of Ms L, it is evident that X should remain at (omitted) School for the foreseeable future, considering she was quite a vulnerable child in a complex family, whose difficulties were exacerbating her problems. 

   (ii)  Parental Cooperation.  It is clear, based on Ms L’s comments and observations regarding the family, that parental cooperation is inadequate in important areas, in particular in the issues of health, medical treatment (including dental treatment) and education.  The parents have not been able to come to any formal cooperation or any informal method of cooperating with each other.  There have been significant issues regarding a dental procedure relatively recently.  There has been the past difficulty of lack of cooperation and agreement regarding the school.

   (iii)  Future parental coordination and/or therapy.  Based on Ms L’s comment, her involvement with the family has been substantially more than normal.  While this may have been appropriate on a temporary basis, even after a period of 18 months with high level parental coordination with extremely high levels of contact between the family and the parental coordinator, the family has still failed to agree upon basic issues such as medical procedures (reference to the current dental dispute).  As such, it is unlikely that such level of parental coordination will be available in the future or that it would be affordable to the family. 

   Ms L’s statements suggest that the task required high-level involvement with a high level of detail and yet there is no significant level of cooperation at this point.  Ms L’s account is that if the Court was to consider as a last resort single parental responsibility for X, the mother would be most likely to facilitate the relationship with the father and cooperate with the father in comparison to vice versa.”

8. Dr S set out his conclusions at paragraph 60 and following.  I refer to the entirety of the report but note the following at paragraphs 66-68:

   “This evaluation revealed in addition, the following: X’s psychological improvement has been marked, in large part, due to her schooling at (omitted) School.  The school has been pivotal in her development and she appears to be functioning relatively normally, despite the significant family problems that have been maintained. 

   This evaluation also showed the father presents with skills deficits, which are congruent with his personality.  In comparison to the previous evaluation, there appeared to be some change relevant to the parents.  The mother presents as more open to the father’s involvement with the child and more flexible, and in part this is due to her being aware that X has made improvements and is more robust.  The father, in contrast, presents with rigid position in relation to the mother, and thus being unable to see the mother as anything but alienating him, which appears not to be the case over the last year at least, and appears not to take responsibility for his part in the impasse.  It appears inevitable based on this evaluation, that the father will take the matter back to Court if he is unable to obtain further time with the child.  This inevitably creates emotional and practical problems for both parties, with very negative implications for the child and the mother. 

   Based on the past and current evaluation, and the child’s significant issues over time, despite her recent improvements, there are significant concerns about the increase in time beyond the current pattern, a limited period each fortnight and in holidays.”

9. In his recommendations on page 29 of 35 Dr S recommended:

   “Time between the father and the child on a fortnightly basis, Saturday AM to Sunday PM and an afternoon to evening in the intervening week.  In the holiday periods, there should an increase in time, where ultimately the child spends three days in a row, however, it is likely this would need to be increased in a progressive fashion over a period of three years.  Special days would need to be set down.”

10. The report went on to recommend sole parental responsibility to the mother (given the difficulties between the parents), that X should remain at (omitted) School, and while Ms L’s assistance might continue to be helpful “further parental coordination is unlikely to be appropriate in the next phase.”

The affidavits of the parties

1. Even since the inception of this tranche of litigation on 12 November 2013, the parties have filed a number of affidavits.  It is neither necessary nor appropriate to paraphrase them in any detail whatsoever, although of course I have read and re-read the file (in its entirety) and have regard to the materials filed.  In essence, the affidavits merely repeat the mutual criticisms the parties have of one another, which are, in my view, fully appropriately paraphrased in the reports of Dr S. The father’s affidavits are replete with accusations against the mother, including the dark suspicions as to her trying to present X to him in a tired and difficult state, and the alleged failure of the mother properly to involve him in X’s life.  The mother’s material complains, at length, of the father’s difficult, controlling, and impossible behaviour.

The evidence given at Court – the mother

1. What follows is taken from my notes. It is of course not transcript, but will I hope record sufficiently accurately those parts of the evidence that I regard as significant.

2. The mother gave evidence-in-chief additionally to her affidavits.  She gave information about the vexed issues of the child’s name day, time at Easter, and the fact that the child was not yet baptised.  She gave evidence of her desire to take holidays while the surgical practice for which she works is closed over the Christmas period.  She suggested that Melbourne Cup Day, being of no particular significance to the parties, could alternate, and explained why the default position of changeover at the (omitted) Hospital worked for her.  She opposed the father’s proposal that changeover take place in (omitted), this being a considerable distance from where she lived.

3. Under cross-examination by counsel for the father, the mother confirmed that she presently lives in (omitted) and that (omitted) is about 15 minutes from there, although she intended to move to (omitted) in the coming months.  She confirmed that the issue of the name day was important to both parents, (omitted) being the paternal grandmother’s name, and (omitted) a name aligned to her own family.  Cross-examination then proceeded about taking the child to church.  It is sufficient to note that both the father and the mother have adopted rigid positions in relation to this matter, and that with the assistance of the Court and the Independent Children’s Lawyer, arrangements were made by consent during the running of the hearing to have the child baptised.  The failure of the parents to reach agreement on a matter that is important to both of them (they are both of Greek origin and their Greek culture is similarly important to both of them) speaks volumes for their intransigence. 

4. The mother confirmed under cross-examination that X goes to school happily and is thriving at (omitted) School.  She confirmed that overnight time has occurred and that the child’s behaviour is now somewhat better than it used to be.

5. The mother said, “I encourage her to go.  I want her to spend time with the father.”

6. I would interpolate and say that this last evidence was given with conviction and I believe her.

7. The mother confirmed that she had always been concerned about X’s behavioural issues, and that time had been manageable until overnight time was posited.  She said when there was an endeavour in 2013 to move to more overnight time there were problems, and all time was stopped on the recommendation of Mr G.  The mother confirmed, however, that X’s behaviour is now much improved.

8. The mother confirmed that this was substantially due to the involvement of Ms L.

9. When taken to the very considerable difficulties that had obtained at the first set of interviews with Dr S, the mother said that she had not prepared X to see her father properly and could have done things differently.  She said the child was different then.  Given the difficulties of separating from her grandmother, she might not have had her present, with the benefit of hindsight.  She said it was extremely difficult to control X two years ago.  The mother said looking back she now agreed with what was in Dr S’s report.  Once again I interpolate and say this concession does her credit and suggests a measure of insight.

10. Although overnights were now manageable, X still says she does not want to go, but the mother tells her she will have a fun time and see her tomorrow.  25 July 2015 had been really difficult, and her partner, Mr F, had had to ring the Berry Street service twice.  When it was put to her by counsel that the child smiled when she arrived at Berry Street, the mother replied that she was happy that she could smile with her father.  There was no very little oppositional behaviour and the day sessions with the father were fine.  Overnights were more difficult.  She did not know why.  The child has spent four overnights with the father, and the last three have been manageable, although she always says “no sleep” before the overnights take place.  The mother was cross-examined about the extent to which X is questioned when she returns from her father.  She said there is some history and it depends.  The mother confirmed that she is not concerned with the child’s physical safety when in the presence of her father.  X does not talk much about her father but does say he is mean and yells at her.  The mother said she does not discuss this with the child but says, “That’s daddy.  We all have our good and bad days.”  She said she tries to move on.  She denied that X says what the mother wishes to hear and said that X does not trust the father.  She will not take any transitional items with her.

11. The mother was adamant that during transportation to see her father in the car, she will say she doesn’t like going to sleep at the father’s and says she sleeps in the same bed as the father.  It should be noted that it is clear that the mother believes what X tells her.

12. The mother conceded that she called the father “malaka” (a Greek insult) and that she should not have.  This concession again does her credit.  She further conceded that her daughter benefits from the relationship with the father, which will serve her well now and in the future.

13. The mother said that she is guided by the professionals but that sole parental responsibility would limit conflict. 

The mother under cross-examination by counsel for the Independent Children’s Lawyer

1. The mother confirmed that conflict between her and the father had always been extreme and that they had never agreed.  This was despite the three reports of Ms W and five from Mr G, the 18 months with Ms L, who provided four updates, and two reports by Dr S.  She said these had made no difference to her relationship with the father, which would not change.  She said they had been fighting in Court almost all of the child’s life, and she acknowledged that the child was terribly affected by the conflict.  She confirmed that the parenting styles were very different, but she had no concerns about X’s safety with her father.  She conceded that Dr S was astonished by the extent of X’s improvement, which is down to (omitted) School, which has very effective boundaries.  She said Ms L was correct to recommend X staying at (omitted) School, where she will stay.  She confirmed that both parents are Greek Orthodox but the child was not baptised (as earlier indicated this matter was resolved).  When it was put to her that she said she relied upon experts but the child was now six and she needed herself to take responsibility, the mother replied that she should be able to make decisions.  She was concerned about the child’s anxiety before spending time with her father, and was concerned the child’s regressive behaviour might return.  She said having Mr F at changeover was good and that overnight time had gone better than she had anticipated.

2. Counsel put it to her that the child’s time could extend from Friday to Sunday evening after five or six months, and the mother said that pick-up from school, in theory, would be very good, but she was concerned that the child would regress.  She confirmed that she continues to see Ms L fortnightly, and saw her more about the introduction of overnight time.  She was disappointed if the father does not wish to see Ms L again.  When it was put to her that it would be better simply to review matters after a period of time, and not necessary to see Ms L so often, the mother confirmed that she would accept Ms L’s recommendations as to increases in time.

The evidence of the father

1. In evidence-in-chief the father adopted his affidavits as true and correct.  He said that the child does not sleep in his bed but would sometimes tap him on the shoulder and jump in.  When this occurs, he takes her back to her bed and reads to her.  He denied shouting at the child and said she did not cry a lot overnight.  She had not, at any time, requested to talk to her mother, but he would let her do so if she wished.  He then gave evidence about the Christening issues (which have been resolved).  He also confirmed that Friday and Saturday nights at Easter were very important, and said that in the previous Christmas he had had the child with him from 10am until 2pm on Christmas day.

2. Under cross-examination by counsel for the mother, it was put to him that X was vulnerable according to Dr S.  The father replied that this means that she is reserved and shy but does not mean she is at risk.  He said there were no risks to X’s psychological or emotional development at this time. 

3. When it was put to him that X had had a hard time of it, he said he did not understand the question.  X faced difficulties in her six years of life and this may have caused problems.  She is still not without problems.  The father said the parents hate each other’s guts and the child is aware of this.  He conceded this must have an impact on her and that the many professionals who had been involved with the family had not improved the situation.  He said the move to overnight time was very positive for X, and he did not believe that X would regress.

4. It was put to the father that he thought equal time was appropriate as recently as his most recent interviews with Dr S.  He conceded this and said that X would benefit from more time with him, although not so far as fifty-fifty.  He said that the mother was not trying to limit his time.  It was her assessment as to what was in X’s best interest.  He said that sometimes X was exhausted at 10 am at Berry Street and will sleep for an hour to an hour and a half in the car.  He said he had raised this with Ms L but left it at that.  When it was put to him that he was asserting that this was a deliberate attempt to sabotage his time by the mother, he said that he did not think this was the case.  He said that “if something is wrong, we both assume the worst”.  He then gave evidence about a tag with the name (omitted) on it on the child’s schoolbag.  He said he thought this was done by the mother, but if it was a gift from a friend it would appropriate.  He denied that the proceeding was about winning and said that conflict gets in the way.

5. It was put to the father that following a meeting with Ms L and the mother in July 2014, he simply disengaged.  He said this was not because of a disagreement about Thursdays, but because Ms L insisted that he sign documents for the child to go to (omitted) School or he would not see her again.  He then, however, said he was unable to remember if the dispute was about Thursdays.  He conceded that thereafter time with X ceased until November 2014.  He conceded that it was not good for X that he had made this withdrawal, but said he was always prepared to make concessions for her. 

6. The father said that Ms L had helped.  He does not usually need to use her, however, and contacts the mother directly if there are difficulties.  When it was put to him that he had failed to respond to the mother’s emails, particularly about X’s dental treatment, he said that he did respond to her emails and any failure to do so was an oversight.  He conceded that a return to Court would be the worst result for X.

1. The remainder of cross-examination dealt with name days, and Christmas and the like in a fashion that did not, in my view, progress the matter much further.

2. The father did, however, confirm that Good Friday in the Greek Easter is to mourn Christ and Saturday midnight is resurrection.  He said Greek Good Friday is usually a school day, and a procession for a quarter of an hour takes place between 7 and 8 o’clock in the evening.  He conceded that he lived in (omitted) and that most changeovers, in fact, took place either at school or at Berry Street.  He said (omitted) Hospital was tricky for changeover and (omitted) would be better if it was not a work day.

The father under cross-examination by counsel for the Independent Children’s Lawyer

1. The father conceded that Ms L had given extensive assistance to his daughter and to him.  He conceded that he told Ms L that she had been of some assistance but said that school environment was what had really helped.  When it was put to him that at paragraph 56 of Dr S’s report he asserted that Ms L had been pivotal, the father responded that Ms L allows live issues to continue.  He said it was financially prohibitive going to Ms L, sometimes as much as three times a month.  He confirmed he had spent about $50,000 on legal expenses and did not want to see Ms L so regularly.  He was happy to meet for a progress report in several months and was prepared to be guided by Ms L’s recommendations.  He said that his proposals were based on Ms L’s recommendations in December of 2014, and it was clear that rigid orders would be better.

Findings on the facts

1. It should be noted that it is no business of the Court to be gratuitously rude to parties or witnesses, or to say things in a judgment that are likely to be hurtful to them.  Nonetheless criticism, and trenchant criticism at that, can sometimes unfortunately not be avoided, and this is such a case.

2. Disagreements of the entrenched sort that the parents have in this proceeding can never be solely caused by only one of the parties.  Both of the parties struck me as being self-centred and, to an extent, lacking in insight.  The lack of insight on the part of the father was far greater than that of the mother. 

3. It is clear that the mother has a genuine fear of X’s response to spending time with her father albeit that she does not articulate any particular concern when she is with him, other than she may sleep in his bed (something in respect of which I accept the father’s version of events).  It should be noted that the mother made a number of concessions, which, as I have earlier remarked are to her credit.  As indicated, she conceded that looking back she would now agree that Dr S’s earlier report was correct.  She conceded that she had sworn at the father.  This is to her credit, but it is noteworthy that she felt it appropriate to report the father for saying exactly the same word to her at (omitted) School.  I suspect that the father did say it, but it is disingenuous of the mother to complain when she uses the same language.

4. Nonetheless, as I have indicated already, I accept the mother’s evidence that she wants the child to spend time with her father and encourages her to go.  The difficulties she perceives in this situation are rooted in her own perceptions of her past experiences with the father, and there is no doubt that the reluctance and difficulty that X has demonstrated to spending time with her mother has its origins in her mother and grandmother’s resistance.  Greatly to her credit, however, the mother has advanced to a point where she can contemplate the matter in a far more sanguine way, and X has made enormous progress with the assistance of (omitted) School and Ms L.

5. In a general way, I find the mother’s evidence to have been given honestly and her answers were generally direct and responsive.

6. I regret to say that the same cannot be said of the evidence of the father.  Even in evidence-in-chief he impressed me as being rigid and obsessive.  Under cross-examination, some of his answers suggested a quite staggering lack of insight.  His assertion that there were no risks to X’s psychiatric or emotional development at this time almost beggars belief.  That he should have such a view, despite the matters contained in Dr S’s report, and in the face of the mother’s evidence and the overall history of the matter, almost defies belief.

7. Similarly, this underlying belief that X should be moving over time to an equal time relationship (something he was adopting as his formal position as recently as the interviews with Dr S) once again suggest a self-focus and lack of proper understanding of where X is.  Further, a number of his answers were unconvincing and non-responsive.  By way of example only, I refer to his assertion that he did not fail to respond to emails from the mother, something that is palpably untrue in relation to the dental treatment issue. 

8. It has to be said that not only did the father demonstrate all the qualities ascribed to him so clearly by Dr S, but he was simply not a good witness.  I think that for him it is indeed all about winning.  While he genuinely believes that the mother is seeking to alienate X from him (and there is historical evidence that he is correct in that assumption), his express determination to return to Court again and again until he gets what he wants shows an alarming lack of insight about the effects of litigation both on X and on her mother.  It should be noted in passing, that the scope and cost of these proceedings (he said he has spent $50,000 legal fees) sits rather poorly with his professed impoverishment as a student. 

9. I will return to further findings when I consider the matters under s.60CC of the Family Law Act 1975 (“the Act”).

The proposals of the parties – the Independent Children’s Lawyer

1. Counsel submitted that this case was mainly about the dislike of the parents for one another and that litigation should be brought to an end.  It was submitted that time with the father has not impacted significantly on the child.  The difficulties were not mainly about the father’s lack of skills as a parent, but the main thing was the dispute between the parents, as both parents knew.  He submitted there was mutual hatred and that little change should be made to the extant time regime.  It was submitted, however, that the introduction of an additional overnight from Friday until Sunday after term 1 holidays in 2016 would be sustainable.  It was submitted that the reports of Dr S and Ms L make this clear, and that the orders prepared by Ms L in December 2014, which were then made orders of the Court, were passed largely without difficulty.  It was submitted that because the child was progressing well, it was important not to move too far too quickly and to avoid regression.  X has just started overnights with her father and did not need further stress, which must be avoided.  This was why no change was posited by the Independent Children’s Lawyer for some time.

Submissions of counsel for the father

1. Counsel submitted a document marked as MFI-4, which comprises a number of orders by consent and a number of matters that are disputed.  It was submitted that the father’s case was simple.  The child’s best interests would be met if both parents had significant and substantial time with her.

2. Counsel submitted that the mother cannot move beyond one night each alternate weekend and two and a quarter hours the other week.  The mother’s position was that there would never be more than three nights in school holidays.

3. It was submitted that there is now some common ground.  X is now in a better place and much happier and thriving at school.  She transitions more easily if the mother is not there and settles readily in the father’s care.  The mother says overnights are now manageable and Berry Street shows that transitions have occurred happily, apart from the first time.  The father says that the child is happy with him and also with his family.  The question is:  where to from here?  The mother says no change, and will never change.  She says she will be guided by professionals, but despite the assistance of multiple professionals, nobody has been able to address the parties’ dislike of one another.  There is also significant cost associated with the ongoing assistance of Ms L.  It was submitted that the father’s proposals strike a balance, with time to be increased at a level that the child can cope with.

4. The father accepted an increase of time to 6.30pm on Friday, but wanted to increase this to overnight in November.  The next increase positive was to add Friday night from term 2 next year, with changeover at school.  Further increases of time would take place as counsel set them out.  Extended time was sought for Christmas this year, with return to the mother at 4:00pm. 

5. Given the child would be baptised by the next Greek Easter, it was suggested that the Friday session and the night on Saturday be with the father.  The father accepted the Independent Children’s Lawyer’s proposal about New Year.  He still seeks each Melbourne Cup day.  He also sought the paternal grandfather’s name day and birthday.

Submissions by Counsel for the Mother

1. Counsel submitted the conflict was exemplified by the dispute over baptism which had lasted for six years.  He pointed to the difficulties notwithstanding the substantial professional assistance given to the parties.  He submitted that the regime regarded by Ms L was sustainable, and that the worst outcome would be if there was no relationship with the father or further interruption of time.  He noted the concerns of Dr S about increases in time and noted that Dr S had not been challenged.  The mother seeks the orders recommended by Dr S.  It was noted that the father considered that his time was substantial.

2. Counsel emphasised that X has been assessed as vulnerable, and otherwise responded to the regime proposed by the father.  He sought that the mother be given an opportunity to have holidays each other year, and noted that the father was a student who has a long break (although I note that he proposes to finish his studies at the end of 2016). 

3. The father’s proposal for time on the paternal grandfather’s name day and birthday was opposed because these were not supported by Ms L.  Counsel submitted that the role of the extended families should then be restrained. 

The Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends and holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

Parental Responsibility

1. The Court is, of course, first required to consider the question of equal shared parental responsibility.  I note the view of Dr S that the conflict between the parents may be so significant that it is inappropriate to award joint parental responsibility at all.  The Independent Children’s Lawyer and the father seek an order that the mother have sole parental responsibility regarding the child’s education and health, and the mother’s amended initiating application, which contains her proposal, seeks sole parental responsibility for her.

2. Taking the evidence as a whole, it is clear, to use the language of s.61DA(4) of the Act, that the application of a presumption of equal shared parental responsibility would conflict with X’s best interests. I refer once again to recommendation 3 of Dr S at page 29 of 35:

   “Based on the extraordinary extent of the legal involvement in this matter and the extent to which there has been a lack of ability of the parents to resolve significant issues such as education and health, I would recommend that there is parental responsibility allocated to one parent.  Despite the father’s positive attributes and obvious care and love for X, the mother, of the two parents, appears most able to facilitate the time between the child and the father and would support the relationship between the father and the child.  This alteration may reduce the conflict in this matter.”

3. I entirely agree with that assessment, but would perhaps go further.  The evidence of the mother is that she and the father simply cannot agree about anything.  That assertion is clearly made out on the evidence and I refer to, without repeating again, the somewhat tawdry process whereby X’s recent dental controversy was resolved.  The father said in plain terms that he and the mother hate each other’s guts.  That reflects his perception of the matter and he certainly hates her.  I accept that the mother has a greater degree of insight and although she detests the father (calling him “malaka”) she at least genuinely wishes to foment the relationship between the father and the child.

4. This is a case in which any measure of shared parental responsibility will only give rise to significant and further conflict and has every chance of causing not only stress and difficulty for X, but further Court proceedings and associated stress on all concerned.  Taking all the evidence and circumstances as a whole, it is clear that the presumption in favour of equal shared parental responsibility is rebutted. It is not in X’s best interests.

The Appropriate Spend Time Regime

1. Although the Court is not, given the order for sole parental responsibility, required by the statutory pathway to consider equal time or substantial and significant time within the meaning of the Act, it is appropriate nonetheless to do so.

2. Equal time has indeed been proposed by the father up until recent times.  I do not think that in his heart of hearts he has actually abandoned it as a long-term outcome.  I think he would be likely, if he were not strongly prevented from doing so by the Court, to pursue endless litigation with a view to achieving this outcome.  It is sufficient to say for these purposes that none of the professionals involved in this matter have recommended anything remotely akin to equal time and it is immediately apparent, given the conflict between the parents, that it would be simply unworkable and entirely contrary to X’s best interests.  She is struggling to sustain even one overnight time at present, and the father’s underlying insistence that matters should be moving smartly along towards equal time is yet another example of his palpable lack of insight.

3. So far as substantial and significant time is concerned, in my view this once again would call for more time than X is capable of sustaining now or in the foreseeable future.

What Orders are in X's Best Interests

1. This self-evidently requires consideration of the matters in s.60CC of the Act.

The Primary Considerations

1. Everyone agrees that it is to the benefit of X to have a meaningful relationship with both of her parents.  Contrary to the father’s perception of the matter and, as I find, contrary to her position before the involvement of Ms L and the improvement deriving from attendance at (omitted) School, I accept that the mother does now genuinely wish the child to have such a relationship.

2. The Court is, of course, required to consider the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.  There are, of course, significant assertions of past violence before the parents separated, as long ago as 2009.  It is futile now to re-examine those matters which were not in any event pressed before the Court in this tranche of litigation in any meaningful way.  It is sufficient to note that everyone agrees the child should spend time with the father.  The real issue is how much.

The Additional Considerations

Section 60CC (3)(a)

1. Although the child has expressed views about her father, there are a number of points to be made about them.  First, X is only six years old and any views she expresses must be approached with a caution appropriate to her youthfulness.  Second, there is an obvious risk that at times she has said things that she has thought the mother wishes to hear.  The remarks by X need to be seen in the context that the overnight time has, at the very least, proved manageable.  I accept the father’s evidence that the child is generally at least reasonably well settled in his care.  It needs to be noted, however, that if X were to regress, this would find its expression very readily in her behaviour and care will need to be given to ensure that this does not become a problem.

Section 60CC(3)(b)

1. The child has a well-developed and loving relationship with her mother.  Little has been said in this tranche of the proceedings about her relationship with the maternal grandmother which was so problematic at the time of Dr S’s first report.  I would infer that this difficulty has been diminished, although there is no reason to doubt that X has a good relationship with her extended maternal family.  I note that X appears to have a good relationship with the mother’s new partner, Mr F, and that they will be moving, it would seem, to a home of their own reasonably shortly.  She also appears to have a satisfactory relationship with Mr F’s own daughter.

2. The child’s relationship with her father, given the amount of time she has been able to see him, is necessarily less well-established.  Likewise however, it is clearly a relationship that subsists and everyone agrees it should be fomented.  Whatever relationship X has with the paternal grandfather, and the paternal family generally, must be more limited, as I would infer.  She has spent less time with them than with the father.  Nonetheless, both these parents seem heavily engaged (if not enmeshed) with their respective extended families, and there is no reason to suppose that X has any difficulty with the father’s extended family.  Whether the relationship with the father’s sister and her family is as fulsome as the father puts it, I am not able to say, but at the very least it is not problematic.

Section 60CC(3)(c)

1. Both parents have sought to participate in long-term decisions in relation to the child and to spend time with her and communicate with her.  The father’s stupid withdrawal from the counselling process with Ms L in 2014, in effect sulking because of the pressure to send the child to (omitted) School (in circumstances where he himself attended private school), speaks for itself.  Nonetheless, the reason this case has given rise to such intensity is precisely because of the endeavours the father has taken to be involved in X’s life.

Section 60CC(3)(c)(a)

1. The only matter of significant note arising under this subsection is the father’s history in respect of financial support.  As indicated earlier, if he can find $50,000 to spend in conducting litigation, in circumstances where he at least has foreshadowed further litigation later, it seems counter-intuitive that he is not able to assist better with his child’s financial support.  In the end however it is not possible to make certain findings about this matter, which was not in any event pressed in cross-examination in any significant way.  While I retain lingering doubts, they can go no further than that. 

Section 60CC(3)(d)

1. Clearly any significant immediate introduction of extra time with the father would be extremely problematic for X.  The submission of the Independent Children’s Lawyer’s counsel that time should only be increased in a very small amount over an extended period of time is quite obviously correct.  Not only would such an increase be likely to give rise to anxiety and reaction on the part of X herself, it will plainly operate upon the mother’s psyche very significantly, and that itself then only compounds any difficulties the child is experiencing.

Section 60CC(3)(e)

1. There is no difficulty in respect to the expense of X spending more time with her father.  The practical difficulty is that X is simply not capable of sustaining it at the present time. 

Section 60CC(3)(f)

1. Apart from her tendency to demonise the father and to be obstructive (as for whatever reason she was when the prospect of overnight time first presented itself), the fact is that the mother is clearly a good and loving mother, well able to care for the child and provide for her needs.  So far as the father is concerned, there is no doubt about his love of the child and the mother accepts that there is no physical risk, so to speak, arising from X spending time with him.  His lack of insight and his associated rigidity of personality however explains in part why the matter is as it is.  Nonetheless, both the mother (minimal) and the Independent Children’s Lawyer (small) propose certain increases of time in any event.

Section 60CC(3)(g)

1. In the sense this subsection, while very important, has already been touched on in dealing with other matters.  Both parties are closely interlinked with their families and with their Greek heritage.  This gives a particular emphasis to Greek Easter and name days and the like.  I will deal with these matters seriatim in due course.  It is not necessary to repeat the remarks earlier made about the various shortcomings that the parents exhibit.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. Once again, this subsection, while important, has really largely already been dealt with.  The difficulty in the proceeding is that at least in part the father regards this as being about winning.  I note that he referred to X as “my daughter” and not in any other way during his interview with Dr S.  I note again the mother’s preparedness to foment the relationship with the father, however late it may have come upon the scene.

Section 60CC(3)(j) and (k)

1. These are no longer of any significance in the proceeding.

Section 60CC(3)(l)

1. It is vitally important to bring proceedings between these parties to an end.  They have clearly contributed to the difficulties the child has exhibited and litigation simply must come to an end.  The father must understand that the way to extra time with his child will not only be a reassuring parenting process by him with X, but by diminution of his hatred for the mother and the development of some sort of Courteous interaction with her.  The Independent Children’s Lawyer appeared to suggest that there be some sort of review after some months.  I am not sure if I have understood this submission correctly.  I will hear the parties further as to whether interim or final orders should be made.  My own thinking, subject to such submissions as may be made, is that final orders should be made and the parties should be told to stop litigating and get on with things.

Section 60CC(3)(m)

1. There is no other matter relevant at the present time, but it is necessary to deal seriatim with some of the matters that remain in dispute.

2. Working from the minute of proposed orders sought on behalf of the respondent father filed in Court on 11 September 2015, I would deal with the outstanding matters as follows.

The Time Spent with the Father

1. The proposal of all parties, as I understand it, is that the Friday evening time be extended to 6.30 pm.  This is the position contended for by the Independent Children’s Lawyer.  It is in my view a modest and sensible one. 

2. So far as weekend time is concerned, I entirely accept the proposals of the Independent Children’s Lawyer.  Time should remain from Saturday 10:00am until Sunday 4:00pm until the commencement of term 2 in 2016 when it should extend from Friday after school at 3.15 pm until Sunday at 4:00pm.  I accept the submission of the Independent Children’s Lawyer that X should be able to cope with this at that time.  There is no precision in such a finding.  It reflects the enormous improvement in X’s behaviour over the last 18 months to two years.  I note that Dr S did not recommend such an increase, but since he was not called to give evidence, he has had no opportunity to address it.  Taking the fact that X has apparently progressed to a point where overnight time, while initially stressful, is proving something she can cope with, I think it is reasonable to find, as I do, that she will cope with an increase to a second overnight in a little under six months from now.

3. So far as school holidays are concerned, the more limited regime contended for by the Independent Children’s Lawyer is clearly more appropriately in X’s best interests than the more extended periods of time suggested by the father’s proposal.  I note his proposal for half school holidays from the first term in 2016.  This is starkly contrary to Dr S’s report and this difference speaks once again of the degree of the father’s insight. 

4. I note that birthday time and Christmas time are agreed.  So far as Greek Orthodox Easter is concerned, the Independent Children’s Lawyer’s proposal seems, in practice, to be the same as that of the father.  I will hear the parties further if there are any further submissions they wish to make about this aspect of the matter.  The mother’s proposals are far more limited than those of the father and the Independent Children’s Lawyer.  I accept the father’s evidence as to the importance to him of the religious celebrations that fall on Greek Orthodox Easter and, in my view, given that they involve no more than one night away from the mother, they are, subject to any further submissions, a preferable position.

5. So far as there is dispute about New Year’s Day, this is not addressed by the Independent Children’s Lawyer’s proposal.  I think the mother should have the opportunity to have the holiday she seeks in every other year.  I will give the parties an opportunity to draw up a minute to this effect.  Given the child’s age, the proposal for overnight time on New Year’s Eve make no sense as it would not be anticipated the child will be staying up until midnight.  Subject to submissions to the contrary, I would simply leave New Year’s Eve to fall within the ordinary time spent regime.

6. So far as the dispute about the paternal grandfather’s name day and birthday are concerned, I adopt the position of the Independent Children’s Lawyer.  There is all too much emphasis given to the extended family in this proceeding.  If they are able to be entertained on the days the parties otherwise would have the children, then so much the better, but otherwise it is inappropriate to give them special emphasis, notwithstanding the parties’ commitment to their Greek heritage.

7. So far as the dispute about Melbourne Cup day is concerned, I accept that this is a day of no particular significance to either of the parties.  I will order a year about regime as the mother sought. 

8. So far as the dispute about changeover is concerned, the current regime should continue.  The father’s insistence that the parties - who live, in his case, in (omitted) and in the mother’s case, in (omitted) (soon to be (omitted)) - should go all the way out to the corner of (omitted) and (omitted) is just absurd.  Parking may be an issue at the (omitted) Hospital from time to time, but it happens only infrequently.  The (omitted) Hospital is an ideal changeover place, having CCTV and being a calm and measured environment.  It suits where both the mother and her partner work.  The father is not working so there is little obvious difficulty to him in getting there on time.  The changeover should therefore continue as it is.  Otherwise there will be orders by consent in the terms indicated in the father’s proposal.

Conclusion

1. This has been a very long journey for the parties and an even longer one for X.  These Reasons for Judgment, regrettably, involve a measure of criticism of both parents.  Rather than retreat into the trenches and bombarding each other with further insult and/or legal proceedings, the parties would foster X’s best interests far more effectively by trying to take on board the findings made about them by an independent third party, namely the judge, and to re-orientate their efforts to try and give X a life free of stress occasioned by their mutual dislike in which she can enjoy the love  and affection that each of her parents so clearly have for her.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  11 December 2015