KHAN & ABAD

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN & ABAD

[2018] FCCA 3829

Catchwords:
FAMILY LAW – Parenting – allegations of family violence towards applicant – where applicant is primary carer but not biological mother of child – efforts to re-establish relationship between father and child – consideration of substantial or significant time between father and child – equal shared parental responsibility.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant:

MS KHAN

Respondent:

MR ABAD

File Number:

MLC 10538 of 2013

Judgment of:

Judge Mercuri

Hearing dates:

3, 4 and 5 December 2018

Date of Last Submission:

5 December 2018

Delivered at:

Melbourne

Delivered on:

14 December 2018

REPRESENTATION

Counsel for the applicant:

Ms Goldsworthy

Solicitors for the applicant:

Lampe Family Lawyers

Counsel for the respondent:

Ms Panlook

Solicitors for the respondent:

Allan Mcmonnies

Counsel for the Independent Childrens Lawyer:

Mr Weston

Solicitors for the Independent Childrens Lawyer:

Perry Weston Lawyers

ORDERS

All previous parenting orders be discharged.
The applicant and the respondent father (“the father”) have equal shared parental responsibility for the child [X] born …2006 (“[X]”).
[X] live with the applicant.
Until further order, both parties, their servants and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child [X] born …2006 (“the child”) from the Commonwealth of Australia. This order ceases to have effect upon the child attaining the age of 18 years.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
The court requests that the Australian Federal Police place the name of the child on the watch list at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia on breach of these orders. This order ceases to have effect on the child attaining the age of 18 years.
[X] spend time and communicate with the father as follows:
(a)commencing on Saturday 15 December 2018 as follows:
(i)
one day each weekend from 9:00am to 5:00pm, alternating between Saturday and Sunday, commencing on Saturday

15 December 2018;
(ii)each alternate Wednesday from the conclusion of school (or 3:30pm if a non-school day) until 7:30pm, commencing Wednesday 19 December 2018; and
(iii)at such other times as may be agreed between the parties in writing;
(b)commencing from 9:00am on Saturday 6 January 2019 until 5:00pm on Sunday 7 January 2019, and each alternate weekend thereafter until the commencement of Term 1, 2019;
(c)from 2:00pm on Wednesday 16 January 2019 until 2:00pm on Thursday 17 January 2019 and each alternate week thereafter until the commencement of Term 1, 2019;
(d)from the commencement of Term 1, 2019 as follows:
(i)in week one from 9:00am on Saturday until 5:00pm on Sunday and each alternate weekend thereafter;
(ii)in week two from the conclusion of school (or 3:30pm if a non-school day) on Wednesday until the commencement of school (or 9:00am if a non-school day) on Thursday and each alternate week thereafter; and
(iii)at such other times that may be agreed between the parties in writing;
(e)during the Term 1, 2019 school holidays with the father in the first week and the applicant the second week, with changeover to occur at 5:00pm on the middle Saturday of the school holidays;
(f)from the commencement of Term 2, 2019 as follows:
(i)in week one from the conclusion of school (or 3:30pm if a non-school day) on Friday to the commencement of school (or 9:00am if a non-school day) on Monday and each alternate weekend thereafter;
(ii)in week two from the conclusion of school (or 3:30pm if a non-school day) on Wednesday until the commencement of school (or 9:00am if a non-school day) on Thursday and each alternate week thereafter; and
(iii)at such other times as may be agreed between the parties in writing;
(g)during the Term 2, 2019 school holidays with the applicant in the first week and the father in the second week, with changeover to occur at 5:00pm on the middle Saturday of the school holidays;
(h)from the commencement of Term 3, 2019 and thereafter as follows:
(i)in week one from the conclusion of school (or 3:30pm if a non-school day) on Friday to the commencement of school (or 9:00am if a non-school day) on Monday and each alternate weekend thereafter;
(ii)in week two from the conclusion of school (or 3:30pm if a non-school day) on Tuesday to the commencement of school (or 9:00am if a non-school day) on Thursday and each alternate week thereafter; and
(iii)during the Term 3, 2019 school holidays with the father in the first week and the applicant in the second week with changeover to occur at 5:00pm on the middle Saturday of the school holidays; and
(iv)during the 2019/2020 school holidays with the applicant for the first half and the father for the second half, with changeover to occur at 5:00pm on the middle Saturday of the school holidays; and
(i)for half of all school holiday periods thereafter as agreed between the parties, and failing agreement:
(i)the father to spend the first half of each holiday period with [X] in even years commencing 2020 and each alternate year thereafter; and
(ii)the applicant to spend the first half of each holiday period with [X] in odd years commencing 2021 and each alternate year thereafter
with changeover to occur at 5:00pm on the middle Saturday of each holiday period.
For the purposes of changeover:
(a)if a school day, changeover is to occur at school and the father is to collect [X] from school;
(b)if a non-school day, changeover shall occur at Berry Street Children’s Contact Centre, Suburb A or such other supervised contact service as may be agreed between the parties in writing; and
(c)For the purpose of giving effect to order 8(b) herein, parties forthwith do all acts and things and sign all documents as may be required to enrol with Berry Street Children’s Contact Centre, Suburb A to use their contact changeover service and the parties be equally responsible for the costs of same and follow all reasonable directions of the staff of the contact centre.
In the event that the applicant does not facilitate [X]’s time with the father in accordance with order 7 herein, the father has liberty to apply on short notice by contacting the chambers of Judge Mercuri.
The father shall be in substantial attendance at all times when [X] is in his care.
The father forthwith enrol in the parenting orders program with Catholic Care, Suburb B, the costs of which are to be paid for by the father, and provide the Independent Children’s Lawyer and the applicant’s solicitors with evidence of such enrolment within 7 days.
Within 14 days, the Independent Children’s Lawyer recommend an appropriate therapeutic counsellor (“the counsellor”) to the parties in writing for the purposes of non-reportable therapeutic counselling and the parties do all such acts and things necessary to engage the counsellor to support [X] during the transition to time with her father and the parties will follow all such recommendations made by the counsellor and be equally responsible for the costs of therapeutic counselling.
The applicant and the father forthwith enrol in the Tuning into Teens program, the costs of which are to be shared equally between the parties and provide evidence of such enrolment to the other party’s solicitor and the Independent Children’s Lawyer.
The father forthwith do all acts and things to enrol and undertake counselling with Ms C, clinical psychologist for the purpose of assisting with the transition of [X] into his care and a copy of these orders and the family reports prepared in this matter dated 19 September 2017 and 2 November 2018 be provided to Ms C by the father or his solicitors.
The applicant is hereby restrained by injunction from:
(a)being in attendance during any time [X] spends with the father; and
(b)attending at [X]’s school at any time when [X] is in the care of the father for a period of 12 months from the date of these orders.
Each party be restrained by injunction from:
(a)insulting, belittling, abusing or otherwise denigrating the other party or a member of their immediate household in the presence or hearing of [X];
(b)discussing any parenting matter or dispute, including these proceedings, to or in the presence of or hearing of [X]; and/or
(c)leaving [X] unattended at their home at any time when [X] is in their care.
The parties keep the other informed at all times of their current residential address and contact telephone number and notify the other within 48 hours of any such change.
The parties keep the other informed at all times of any significant medical injury or illness affecting [X] when [X] is in their respective care, including providing the other party with details of any treatment required to be administered.
Both parties be entitled to:
(a)attend all sporting and other extra-curricular activities that [X] is enrolled in;
(b)attend all school events that parents are usually invited to attend;
(c)obtain from any school that [X] attends, all information, newsletters and other like correspondence usually provided to parents;
(d)contact and communicate with [X]’s doctors and allied health professionals regarding her health, treatment and development and comply with all treatment strategies as recommended by her treating health professionals;
and these orders shall act as an authority for same.
A copy of these orders be provided to [X]’s school by the applicant prior to [X] commencing school in 2019.
Each party shall ensure that [X] attends all sporting and other extra-curricular activities in which she is currently enrolled to attend during their respective care.
Each party shall facilitate [X] contacting the other parent by telephone or other electronic means while she is in their respective care, should she express a wish to do so.
Within 7 days from the date of these orders, the parties do all such acts and things necessary to facilitate [X] attending upon the office of the Independent Children’s Lawyer to enable the Independent Children’s Lawyer to explain these orders to [X].
Upon compliance with orders 11, 12, 13 and 23 herein, the appointment of the Independent Children’s Lawyer be discharged.
Pursuant to section 65DA(2) 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 Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10538 of 2013

MS KHAN

Applicant

And

MR ABAD

Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for parenting orders in respect of [X] born …2006 (“the child”).

Background

Before addressing the parenting issues and in particular, the parties’ respective proposals, it is necessary to say something about the parties, their relationship with each other and their respective relationship to the child. There is some tragedy in the story of this family but given the movement in the parties’ respective positions at trial, theirs is also a story of hope and possibility. As counsel for the Independent Children’s Lawyer said:
The parties need to refocus their attention on the future and turn their gaze away from the rear view mirror.
The father and the child are originally from Country A. His wife, the child’s mother, was tragically killed in the war in Country A. There is a dispute between the parties as to the circumstances of her death, but that is not relevant to the issues in dispute. The father gives evidence, which I accept, that he worked as a professional for the Australian Employer in Country A, and consequently he was given the opportunity to take up residency in Australia, both for himself and for the child, who at the time was an infant.
He initially arrived in Australia in early 2008 on his own, leaving the child in Country A with his family, he says to allow him to organise accommodation and other matters. He says that on his arrival, he met the applicant, who at the time was working in a local organisation and was offered a room to rent in her home, which he accepted. He then returned to Country A and brought the child to Australia later in 2008. They lived together in the applicant’s home. It is common ground that for a period of time between 2010 and 2012, the child returned to Country A and lived with her grandparents and extended family.
It is also common ground that the child returned to Australia in 2012, and both the father and child continued living with the applicant. The father’s evidence is that both he and the child are now Australian citizens. The father is a qualified public servant by professional training. He also holds a degree in … and a further … degree in …. It is also common ground that the father has undertaken further study, completing his …qualification this year at University.
There is significant dispute between the parties as to the nature of their relationship. The father maintains that his relationship with the applicant was simply one of landlady and tenant, and also that she provided childcare for the child whilst the father was attending to his study and work, for which she was paid. By contrast, the applicant says that shortly after she met the father, they commenced a relationship and were married “in the Islamic way”. She also maintains that she played a crucial role in assisting the father to facilitate his daughter’s migration to Australia.
It is not in dispute that in 2013, the father left the applicant’s home but the child remained living with the applicant in her home. Irrespective of the nature of the relationship between the father and the applicant, it is not in dispute that the applicant has lovingly cared for the child since she was an infant. The child has developed a primary attachment to the applicant, and although she knows that she is not the applicant’s biological child, treats the applicant as her mother.
The applicant has raised the child as if she were her own, although she has given evidence, which I accept, that she knows that she is not the child’s biological mother. There is also a dispute between the parties as to whether the father engaged in family violence towards the applicant and the child. The father denies any such violence, and I will deal with that issue in more detail shortly.
I have had the benefit of observing both the applicant and the father in the witness box for over two and a half days. I find that the father gave his evidence in an open and honest manner. He did not seek to unnecessarily denigrate the applicant and, as stated, conceded that she had done a wonderful job in raising his child, and for that he would be forever grateful.
By comparison, whilst the applicant clearly cares for the child, and I am sure she believes that she is acting in the child’s best interests, I found that she tended to over-exaggerate her concerns about the father. She was unable to make any concessions in the father’s favour, which does not reflect well on her and her capacity to support the child’s relationship with the father.

Family violence allegations

The applicant has made significant allegations of family violence by the father against her, whilst he was living in her home. As I said, the father denies these allegations.
It is common ground that the applicant obtained an intervention order against the father following an incident in March 2016 which resulted in neighbours calling the police to the respondent’s home, and a further incident in April 2016 during which it was alleged by the applicant that the father had thrown pots and pans, spat food on the floor and said to the child, “I will put my fingers in your eyes” and threatened to take the child to Country A, put her in a room where no one would find her and “put you up on a wall, hanging, and get a stick and I’m going to swatch you until you are a pure white dove.” It was further alleged that the father threatened to break the child’s head and teeth.
The police attended following the second incident referred to, and when they located the father, who had denied the incident, arrested him.
There is reference to his incident in the DHHS response provided to a section 69ZW report, and in that report it says:
A report was received that police had attended the family home in regard to a report of family violence incident, to which [X] had been exposed. A verbal argument occurred between the father and the step-mother after dinner, where the father began yelling and throwing pots and pans around and spitting food on the floor. The father was reported to have stated to [X], “I’ll put my fingers in your eyes and I’ll take you to Country A and put you in a room where no one can find you, and I’ll put you up on the wall and hanging, and get a thick stick and I’m going to whack you until you’re a pure dove.” [X] was interviewed and was very clear about her father hitting her. [X] was clear in stating that if she had to spend time with her father she would be scared. She also expressed fear that her father would take her overseas to Country A, and that if that happened she would self-harm.
These notes related to the alleged incident which occurred in 2016, and which ultimately led to the intervention order being granted, and the father’s time with the child being significantly reduced.
The applicant has also made a number of allegations that the father had threatened to take the child back to Country A, marry her off and force her to wear the hijab. The father acknowledges that he has spoken to the child about reconnecting with her family in Country A, but otherwise denies these allegations.
The father denies ever threatening to marry the child off or demanding that she wear a hijab. He gave evidence, which I accept, that he comes from an educated middle-class family, and that none of his siblings have married before their mid-twenties. I am not satisfied that these allegations are made out, or that it is necessary for a specific order to restrain the father from arranging for his daughter to be married before she is an adult.
The father also gave evidence, which I accept, that he has four sisters, two of whom wear the hijab, and the other two who do not, and that ultimately this is a matter for the child to choose. As I say, the father denies that he threatened to take the child back to Country A. It is not surprising that the father would like to be able to take his child to Country A one day, so that he can connect her to her extended family who remain there, and learn about her culture.

The father has also given evidence that he would only travel to Country A when it was safe to do so. There was some criticism of him in that he had indicated that on the basis of his information, he considered it safe to travel to the part of Country A where his family is located. This was said to be inconsistent with directions issued by the Australian government. In light of his concession that the Court ought to make a watch list order preventing the child from travelling before she turns 18 years of age, this is no longer an issue in these proceedings.
In terms of the alleged family violence, I find that the applicant has overstated the extent of the disputes between her and the father when they were living together. Having said that, I accept that there may have been some disputes between them whilst they were living in the same household which became heated, and that these disputes occurred in the presence of the child.
It is clear that these two parties have very different views of much of what occurred in their relationship, including the very nature of that relationship. It is also clear that the child has expressed some concerns about the father’s behaviour towards the applicant, and I refer to the excerpt from the Department of Health and Human Services report just quoted, although there is concern about whether this is reflective of her own lived experience or something that she has been told by the applicant.
I am satisfied that there were arguments between the parties, and that there may have been some family violence within the definition of that term under the Family Law Act 1975 (Cth).
The allegations of family violence however, are historical and can be addressed by minimising the contact between the father and the applicant, by ensuring that changeover either occurs at school or at a contact centre. I also note that there have been a number of occasions over the last 12 months where the parties have been in the same place whilst the child has spent time with the father and there has not been any allegations of family violence made in recent times.

Child’s relationship with the father

It is common ground that since 2016, the child has spent very little time with the father, and the bulk, if not all of that time has been spent in the presence of the applicant. It is the applicant’s case that this is because of the family violence which the father has perpetrated against her and the child, and that the child has a fear of being in the father’s presence alone without the applicant being there.
The father on the other hand, has said that the applicant has sought to limit his time with his child, and that she has created a fear in the child’s mind about spending time with him. The Independent Children’s Lawyer in large part supports the applicant’s proposal in this case, and has been critical of the father’s conduct. In particular, the Independent Children’s Lawyer has been critical of the father’s failure to progress time with the child under the May orders, which I will come to shortly, and his failure to engage with the parenting orders program as directed by the Independent Children’s Lawyer.
Having the benefit of observing both parties in the course of cross-examination, I find that the applicant has exaggerated the concerns that she has about the father’s conduct. I accept the father’s evidence that the applicant has not facilitated time in accordance with the May orders. Whilst I accept that there is some resistance on the part of the child to spend time with her father, the applicant’s response to that resistance has not been helpful.
The applicant gave evidence that she has been able to assist the child to stop sleeping in her bed, although this was not something that the child initially wanted to do, by being encouraging and positive about that change. However, although the applicant acknowledged that it was important for the child to have a positive relationship with the father, she has not adopted the same approach in relation to fostering the child’s relationship with the father.
In coming to this view, I have had regard to the following factors:
a)first, in cross-examination the applicant said that the only reason she agreed to the May orders was because she was told by her representative and the Independent Children’s Lawyer that if she did not facilitate a relationship between the child and the father, the child may be ordered to live with the father;
b)secondly, when asked about progressing time in future with the father during the week after school, she repeatedly said that that would not be appropriate because the child would have school work to attend to;
c)thirdly, she confirmed that she had discussed the father’s desire to take her to Country A with him, even though she is aware that there has been a watch list order in place for many years now, which means that this is not possible;
d)fourthly, the applicant confirmed that she had discussed financial matters and, in particular, the fact that the father receives family tax benefits in respect of the child, with the child. In this regard, the applicant says that the child was aware of the payment, and had asked about it, and she was not prepared to lie to the child. The applicant could not concede that there may have been another way to respond to any questions which did not result in creating an impression that the father was avoiding meeting his financial obligations towards her, whilst at the same time not ‘lying’ to the child;
e)fifthly, in response to concerns from the child about being safe when in the father’s care, the applicant advised the child to call the police if there was a problem, rather than allaying her concerns and telling her that the father loved her and would look after her;
f)sixth, quite tellingly, the applicant was unable to say anything positive about the father without following up with a series of lengthy criticisms of him.
The father gave evidence, which I accept, that he currently works as a tradesman on a casual basis. He says that he will arrange his work around his caring responsibilities, and indicated that he is prepared to agree to an order that he be in substantial attendance when the child is in his care.
It is also common ground that the applicant and the child have been to the father’s home on at least three occasions. The evidence in this regard is somewhat unclear but I accept that the child has attended the father’s home which is a two-room unit, and the father has indicated that the child would sleep in the bedroom when she spends overnight time with him, and he will sleep in the living room.

Child’s relationship with the applicant

The child has a strong bond with the applicant. The applicant has been her primary carer and, aside from the question of fostering a relationship with the father, the applicant has attended in a loving way to the child’s needs.
It is common ground that the applicant sourced an Country A school for the child to attend, and takes her every Saturday. This is an indication of the applicant’s preparedness to facilitate the child’s ongoing relationship with the child’s culture.
It is worth noting that there is no suggestion that the father is seeking to disturb the relationship which the child has with the applicant. Whilst his initial application filed in 2016 was for sole parental responsibility and for the child to live with him, he has moved from that position and accepts the strength of the relationship between the child and the applicant, and concedes that the child should remain living with the applicant. What he seeks is significant and substantial time with the child.
I find that the father is genuinely appreciative of all that the applicant has done in caring for his daughter, and he made specific reference to this in the course of cross-examination where he said:
We are strangers in this country and she took care of my daughter. In our culture it is very, very good.
I find that the father will continue to support the child’s relationship with the applicant, even when the child starts to spend substantial and significant time with him.

Proceedings in this court

These parties have been before this Court since December 2013 when the applicant obtained an airport watch list order in respect of the child initially for a period of two years.
At that time, no orders were sought in relation to parental responsibility, or time to be spent with either party. The application was limited to an application for an airport watch list.
The applicant first sought orders that she have sole parental responsibility and that the child live with her, and that the child spend no time with the father in her amended initiating application filed on 27 September 2016.
The father filed a response to that application in which he sought a recovery order for the child, sole parental responsibility and that the child live with him and spend time with the applicant at such times as determined by the Court.
For reasons which will become apparent shortly, I note that the father has been legally represented since 2016.
In light of the concerns that each party had raised about the other’s mental health, by consent on 23 October 2017 the parties were ordered to undertake a psychiatric assessment.
On 18 May 2018, various orders were made by consent of the parties and the Independent Children’s Lawyer for the child:
a)to continue living with the applicant;
b)to spend some time with the father after school on a Friday and also on a Sunday morning; and
for the parties to participate in a family reunification program (“the May orders”).

Psychiatric assessments

As stated above, both parties were ordered to be psychiatrically assessed.
The applicant was assessed by Mr D. He concluded that he did not see the applicant as having anything which could be regarded as a psychiatric condition. He went on to say that, in his view, she seemed to be:
Well-intentioned, very attached to the girl and in general I think that the girl is very lucky to have her as her effective mother.
Mr D did not meet or assess the father. The father was assessed by Dr E, who noted in his report filed in these proceedings that the father had a clinically normal mood. Dr E also noted that:
He did not elicit any features of post-traumatic stress disorder.
He further noted:
There were no features of psychosis, and there was no evidence of cognitive deficits.
It was suggested by the applicant’s counsel and the Independent Children’s Lawyer that the father had misled Dr E in relation to whether or not he had previously been diagnosed with post-traumatic stress disorder (“PTSD”). The father said that the applicant had taken him to various health professionals when he first arrived in Australia, he told them his story, and they wrote down what they wrote down. He did not believe that he suffered from PTSD.
I am not satisfied that the father misled Dr E. Moreover, I note that those reports referred to were almost 10 years old, and the authors were not called in these proceedings.
In any event, in relation to the question of whether the father was suffering from PTSD, Dr E made the following comments:
It is, of course, quite possible that a highly educated and intelligent man, such as Mr Abad, would potentially know to deny these symptoms to a psychiatrist in an assessment such as this.
That said, the information made available to me suggests that he is functioning at a very high level, pursuing his studies at University, and working as a public servant for extra money. Therefore, looking at the bigger picture, he certainly presents as extremely well-dressed and well-groomed, a fit and athletic man with no information available to me to suggest he has a psychiatric illness that is impairing his ability to function.
An individual suffering severe symptoms of post-traumatic stress disorder would be unlikely, in my view, to function at such a level.
…
Based on the clinical information made available to me, including the cross-sectional mental state examination, I do not conclude that Mr Abad suffers from any psychiatric illness at the current time.
I therefore accept Mr E’s assessment that at the present time, the father does not suffer from PTSD.

May orders

It is common ground that the time spent under the May orders did not occur. Much time was spent during the hearing dealing with the question of why that time did not occur.
Put simply, the applicant’s case is that the child was nervous and scared about spending time with her father without the applicant being there, and that fear was the result of the family violence to which the child had been exposed and the threats which the father had made to the child set out earlier in these reasons.
The mother’s evidence is also that she tried to facilitate time by arranging outings with the father which she and the child would attend, and then leaving them alone together for up to 20 minutes or so. The mother was critical of the father, saying that he did not maximise the benefit of the time with the child provided for by the May orders. Indeed, she says that even on those rare occasions where the father did spend some time with the child, although the applicant was also present, he would spend most of his time on the phone and not engage in any discussion or other activity with the child.
The father, for his part, gave evidence that the applicant had influenced the child to be fearful of him, that he wanted his child to want to spend time with him, and that he did not want to do anything which might further add to her anxiety and distress. He also said that he discussed picking the child up from school with the child, but that the child said she did not want him to do so, and as he did not want to add to her distress, he did not collect her from school.
I accept the father’s evidence in this regard. Having said that, the father was legally represented, and it would have been preferable for him to have advised his lawyers of the difficulties he was experiencing in complying with the May orders so that some remedial action could have occurred. His failure to do so has impacted on the speed with which significant and substantial time can now commence.
The May orders also provided for the parties to do all things necessary to engage in a family reunification program, as directed by the Independent Children’s Lawyer, to assist the child to reengage with the father. By letter dated 21 June 2018, the Independent Children’s Lawyer wrote to each of the parties via their solicitors and advised that after making inquiries with a number of organisations, in order to be eligible for a reunification program, there needs to be involvement from the Department of Health and Human Services. As that was not the case in this instance, it was not possible for the parties to engage in such a program. The letter from the Independent Children’s Lawyer went on to say:
As an alternative, the Independent Children’s Lawyer requests that the parties forthwith contact Catholic Care Suburb B and do all things necessary to enrol in the parenting orders program.
The Independent Children’s Lawyer provided the contact details for Catholic Care and asked the parties to confirm once enrolment had occurred. The applicant gave evidence that she had enrolled and undertaken three sessions. The father had not enrolled and so the program had not progressed as at the date of trial as it might otherwise have. The father’s evidence was that he had not received the letter from the Independent Children’s Lawyer.
The Independent Children’s Lawyer was rightly critical of the father for his failure to engage with Catholic Care. He says that he did not receive correspondence about this from the Independent Children’s Lawyer. That may be so, however, he was legally represented at that time. He and his lawyers knew that the purpose of the May orders were to initiate time between the child and the father, and put in place some support mechanism to assist with that time.
Even accepting that the time provided for in the May orders was not occurring, it would have been helpful for the father and the applicant to have engaged in that program. Had they done so, not only might it have assisted time to have commenced in accordance with the May orders, but it would also have provided further assistance to the parties in moving to more significant and substantial time now. Whilst the father can be critical of the applicant for not facilitating time under the May orders, he must also take some responsibility for not doing what he could to assist time to progress.

Family reports

The parties also attended upon two family consultants in this matter. On 18 September 2017 Dr F released her report following an assessment conducted on 5 September 2017. In that report Dr F made a number of recommendations.
Dr F also noted that the date of the interviews had to be rescheduled at the last minute, and in her report she relevantly noted:
During the change of interviews, Ms Khan made statements to [X] in front of the writer that the writer was here to assist and make sure that, quote, “She wasn’t taken away”. The writer is of the opinion that whatever transpired in subsequent interview would have been influenced by [X]’s perception of the writer’s role as being aligned with Ms Khan, despite later assurances about the writer’s neutrality.
Dr F made a number of recommendations, including that further inquiries be made and a psychiatric assessment be undertaken of each of the parties. In relation to time spent, Dr F recommended that the child spend regular time for at least three hours a fortnight with the father, with such time to be spent at a public venue. Dr F also recommended that although the applicant should facilitate changeover, she ought not remain present during the child’s time with her father.
The parties also attended on Dr G for the purposes of an updated family report. Dr G saw the parties and the child on 17 September 2018 and her report was released on 2 November 2018.
Dr G also appeared and gave evidence to the Court and was subject to cross-examination. In her report, Dr G noted that the issues in dispute were:
a)whether the parties should have equal shared parental responsibility;
b)when and under what circumstances the child should spend time with the father and the applicant; and
c)with whom the child ought primarily live.
It should be noted that by the time the matter came on for hearing, there had been some movement by both parties on those issues, and I will come back to that shortly.
Dr G, in setting out the history to these proceedings, largely consistent with the background that I have earlier set out, made the following observation at paragraph 23 of her report:
Ms Khan described the relationship with Mr Abad as volatile, where he would yell, explode and make threatening comments. She also alleged he would hit, punch and throw. Since taking out an IVO against Mr Abad in 2013, Ms Khan has had a support worker from Berry Street. She appears to want to be on every outing, and included in every dinner with Mr Abad and [X]. In regard to Ms Khan restricting the time Mr Abad spends with [X], as well as her imposing on their time together, she claimed [X] said, “I don’t want to go. They can’t make me.”
At paragraph 25 of her report, Dr G noted that:
Ms Khan spoke about [X] in a devoted and caring manner, and genuinely loved her. She explained that [X] never slept without her as she was too scared to do so.
In relation to the child, Dr G made the following observations at paragraph 29:
During the interview she presented as a compliant but assertive girl who could express her voice. However, during the course of the interview, she appeared confused as to what to believe. She had been given a certain narrative of her father by Ms Khan, which left her feeling confused.

In discussing the alleged family violence, Dr G noted that although the child made reference to physical violence by the father, she could not give any specific examples. The child was reported to have:
Recalled that in 2016 when she was in grade 3, her father messed it all up when he left following a fight between him and Ms Khan. [X] may have had a sense that her father had left her and that only Ms Khan cared for her. Her father explained that it was the IBO that had prevented him from seeing her without Ms Khan present.
Dr G also made the following observations after having met with the child:
[X] appeared to have been told many stories about her father: that he was trying to take her to Country A, that he would never return her. That he would have her married before she was 18. That she would have to wear a hijab.
It was apparent that [X] is aligned with Ms Khan’s portrayal and narrative of Mr Abad.
[X] spoke of Ms Khan also worrying about the current Family Law proceedings. Ms Khan would say, “I don’t want you to be taken away”.
The portrayal of these proceedings has been painted in such a way to [X] that she sees it as something to fear as opposed to something that could increase her support, family networks and family relations”.
Importantly, Dr G noted, “[X] felt caught in the middle”.
At paragraph 34, Dr G relevantly noted:
When the writer spoke to [X] about her father’s compliments about her, she broke down and cried. She said she had never heard her father say good things about her and she was moved to tears. She explained she had been told by Ms Khan that her extended family and father lived in a war zone that was not safe and that her mother had been shot when [X] was four months old. [X] appeared confused by the contrasting accounts of her family and her mother’s death and was unsure who to believe. She reported Ms Khan helped her to come to Australia, a narrative which portrayed Ms Khan as rescuing her and keeping her safe from war, abduction, child marriage and being killed.
In observing each of the parties with the child, Dr G noted at paragraph 38:
[X] was relaxed and appeared to feel loved and cared for by Ms Khan. Ms Khan was sensitive to [X]’s feelings and was concerned about her being upset in the family interviews with her father.
In relation to her observations with the father and the child, Dr G noted that initially the child was shy and the father was somewhat forceful in his interactions. However, he was able to adjust his approach when he observed the child’s reactions. He told a joke; she laughed and relaxed somewhat. Dr G also noted that the child was:
… also assertive towards her father and could stand her ground speaking about her own experiences of events. [X] did not appear afraid to speak her mind and appeared to feel safe in her father’s presence.
Dr G also reported on the touching discussion between the father and the child in which they discussed the child’s biological mother and the child’s similarities to her and the father’s love for them both. This brought the child to tears. Dr G also reported that when the father suggested that the child might have sleep overs at his home, she said, after some reservation, “yes, I can”, although she also expressed concern about how the applicant would cope with that.
Dr G also reported that the child confirmed that she wanted the applicant there when she was spending time with the father and that although he said that he would, at times, like to spend time just with her, he reassured the child that the applicant would always remain in her life and that they would continue to send significant time together. Importantly, when the father left the room, Dr G reported the child told her, “I do trust my dad”, although she was worried that the father would not return her to the applicant and he would force her to wear the hijab.
Dr G, in noting that the child is 12 years of age and about to enter high school, indicated that given the limited time the child has spent with the father and the fact that he had not spent any time in recent years with the child without the applicant present, there was “only a small window of time left for [X] to be reunited with her father”. Dr G also expressed the following views at paragraph 46:
[X] has never had the opportunity to have time with her father and for this relationship to grow and develop, thus [X] is not able to make an informed decision about her primary living arrangements. Currently, she lives in fear of separation from Ms Khan. [X] would be particularly sensitive to separations given she lost her mother when she was four months old. [X] will need time with her father to come to her own understanding. Mr Abad would benefit from some counselling to help him better understand [X]’s feelings and to be able to be more caring as a father towards her, allowing more room for feelings to be expressed and talked about.
She also noted at paragraphs 47 and 48 that:
…the boundaries of the relationships between Mr Abad, Ms Khan, and [X] have been blurred. Ms Khan sees herself as the mother and sole parent to [X] and her resistance in allowing [X] to spend time away from her has fostered a dependence. …
Given her age and upcoming transition to Year 7, [X] needs to separate and individuate from Ms Khan. [X] needs to be able to feel safe to separate from Ms Khan without a fear that something terrible will happen to her. … If Ms Khan cannot facilitate Mr Abad’s time with [X], then it may be important for [X] to return to her father’s care full time for a period to allow this relationship to be fostered and developed. …
At paragraph 50, importantly, she noted that:
It is important to note that [X] does not currently live with either of her biological parents. It is important her relationship with her father is repaired immediately without the applicant’s interference. [X] has been isolated from her paternal family and Mr Abad, her biological father. [X] needs to be able to form relationships with other significant family members so she is not further isolated if something were to happen to Ms Khan.

Parties’ respective view of the other

The applicant is very critical of the father. Not only does she allege that he perpetrated family violence against her and the child, but she is critical of the father’s lack of involvement in the child’s education and other activities. She is critical of his lack of contribution to the financial maintenance of the child and, in this regard, she maintains that the father continues to receive the child benefits paid in respect of the child, even though she does not live with him. In the course of cross-examination when asked whether there was anything positive she could say about the father, she said, “he cares for his daughter” and quickly proceeded to list a range of criticisms of the father.
The father, on the other hand, genuinely appreciates the applicant’s role in his daughter’s life and it is a credit to him that in acknowledging this, he has moved from his initial position in this case in which he sought sole parental responsibility and the child to live with him to one in which he seeks equal shared parental responsibility and that the child live with the applicant. It is also a credit to the applicant that she too has moved away from her initial position of seeking sole parental responsibility and no time with the father. This is reflective of the possibility that both of these parties may move towards a more child focussed approach.

Proposals

The father’s proposal essentially reflects the recommendations made by Dr G. In essence, the father’s proposal is that the parties have equal shared parental responsibility, that the child continue living with the applicant and, in terms of time spent, he seeks that the child spend each weekend with him for the remainder of Term 4 this year, then a two week block during the long summer holidays immediately after the end of school term, with the balance of the long summer holidays to be spent with the applicant and weekend time with the father.
From the commencement of Term 1, 2019, the father seeks for the child to spend time with him in a two-week cycle on the following basis:
a)from Wednesday after school until the commencement of school on Friday in week one; and
b)from the end of school on Friday until the commencement of school on Monday (or Tuesday if Monday is a public holiday) in week two; and
c)for half of each school holidays thereafter.
The father seeks an order that if the applicant does not facilitate time that he have liberty to apply. He also seeks an order for changeover to occur either at school or initially to occur outside the police station, although in the course of the hearing, I think the agreed position was that the parties utilise a third party changeover centre.
The father also consents to a watch list order in respect of the child until she turns 18 and the father’s proposal also contains a range of orders addressing counselling for the child and for the Independent Children’s Lawyer to explain the orders to the child.
Notably, the father’s proposal, which is set out in full in Exhibit E, does not contain a clause which requires the father to attend a parenting orders program as recommended by the Independent Children’s Lawyer in his letter dated 21 June 2018.
The applicant’s proposal, with which the Independent Children’s Lawyer agrees, provides for a more staggered reintroduction of time between the child and the father. It essentially provides for:
a)day time only, from 9:00am until 5:00pm on Saturday and Sunday, alternating each weekend, for the first three months;
b)weekend time from 9:00am Saturday until 5:00pm Sunday on alternate weekends and each Wednesday after school until 7:00pm for a further six months;
c)weekend time from after school on Friday to 6:00pm on Sunday on alternate weekends and each Wednesday from after school until 7:30pm for a further six months; and
d)thereafter each alternate weekend from after school on Friday to the commencement of school on Monday and Wednesday after school plus one week in all school term holidays and two weeks in the long summer holidays.
The mother’s proposal for changeover was, as per the agreed position, to occur at a third party contact centre and they have proposed Berry Street Contact Centre, Suburb A unless otherwise agreed.
The mother’s proposal also provides for, among other things, counselling for the parties and for the child as recommended by the family consultant.

Issues

As the hearing progressed, it became clear that the key issue in dispute between the parties was how to progress time between the father and the child.
In determining that issue, the following other matters arose for consideration:
a)How to deal with the resistance the child has about spending time with her father?
b)How quickly the parties ought to progress to overnight time?
c)the third issue, which was ultimately resolved at hearing, was where changeover should occur.

How to deal with the resistance the child has about spending time with her father?

I accept, on the basis of the evidence before the court, that the child has some resistance to spending time with her father.
Having regard to the comments of Dr G both in her written report and in the course of cross-examination, I am satisfied that there is a glimmer of hope that with the parties working towards a common goal of re-establishing time with the father that this resistance can be overcome.
In response to a question about whether the father’s proposal of going to overnight time immediately and the two weeks block on the context of no time alone with the father since 2016 was ambitious, Dr G said:
Peeling back the onion a little bit with the resistance, it appears that there are a lot of fears and anxieties around safety, not being returned, about confusion and, in some ways, unless she has the experience of doing it to know that the reality may be different to the fear, nothing will change. And then the other option is things continue and it never moves forward. It becomes an intractable position of the parties.
This will require a multipronged approach. For her part, the applicant will need to become more aware of the impact on the child of her own anxieties about the father and will need to become more circumspect about the types of discussions she has with the child, in particular about adult issues including about these proceedings, her views of the father and her views of the financial support that he provides to her.
For his part, the father will need to become more active to ensure he puts in place the necessary supports to assist him and the child to

re-establish their relationship. If the father is unclear about what is required or how to respond to a particular set of circumstances, he must seek assistance and advice. Whilst it is understandable that he does not wish to unnecessarily add to the child’s concerns, not acting or not acting in a timely manner itself can have adverse consequences. His failure to engage with the requirements of the May orders is a case in point.
Both parties agree that the use of the third party to facilitate changeover where it does not occur at school will assist to minimise the opportunity for conflict between them.
The parties also agree that they and the child will require some level of support to provide this process with the greatest prospect of success. The child has clearly developed concerns about her safety with the father and it is necessary for her to spend some substantial and significant time with the father in the short term so that she can have an opportunity to see that she can be safe in his care. She may need some support and counselling to help her deal with any issues that might arise as her relationship with her father is re-established and all parties seems to agree that this is appropriate.
The applicant will need some support in dealing with her anxieties over the child spending time with the father. As noted by Dr G, the applicant has been devoted and loving towards the child. However, I find that she has contributed to the fears which the child has developed around spending time with her father and the applicant will need some help to learn strategies for dealing with that and not passing them on to the child, whether intentionally or not.
Similarly, the father will need support to ensure that he understands the child’s feelings and is able to be caring towards her and allow her room to express those feelings as they arise. It goes without saying that the expectation is that all parties will comply with these orders, including the orders regarding their participation in various programs aimed at supporting the reestablishment of a relationship between the child and the father.

How quickly the parties ought to progress to overnight time?

As stated, the difference between the parties is how quickly time should progress to overnight time and to substantial time over the holidays.
It was submitted on behalf of the father that the graduated approach has not worked to date, notwithstanding the May orders made for the father to spend time with the child that did not occur.
Whilst it is the case that the father could well have more vigorously pursued his rights in this regard by instructing his solicitor to write to the mother’s solicitors and demand compliance with the orders or by bringing a contravention application, his position is, in some senses, understandable given his concerns not to place undue pressure on his daughter. Having said that, as noted by Dr G, the father’s failure to engage with Catholic Care was a lost opportunity and has had an impact on the speed with which time can now progress.

Where changeover should occur?

In terms of the changeover, as I have said, the parties have agreed to Berry Street Children’s Contact Centre, Suburb A as the appropriate changeover where changeover does not occur at school.

Best interests of the child

In determining this issue, the court is required to follow the statutory pathway set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B of the Act, which I will not read out in detail, sets out the objects and underlying principles of Part VII of the Act and I have had regard to that.
Section 60CA provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) sets out that the primary considerations are those set out at section 60CC(2) and the additional considerations are those set out at section 60CC(3).
Section 60CC(2A) makes it clear that in applying the primary considerations in subsection (2), the court is to give greater weight to the considerations set out in (2)(b).
I will now turn to address the relevant considerations in order.

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

As stated above, the applicant is not the child’s biological mother. However, she has been her carer since the child was an infant and it is agreed that she is a mother figure and the primary carer in the child’s life. To their credit, the parties agree that the child should continue to have a meaningful relationship with the applicant.
The applicant, to her credit, also conceded in these proceedings that the child would benefit from a meaningful relationship with the father. This is particularly so given the background of this family and the loss that the child has already suffered at a very early age of her mother.

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

As discussed, the mother has made various allegations of family violence against the father, and I have already set out what my findings are in relation to those matters. I note however, that in closing submissions counsel for the mother said:
…given that the parties have now reached a stage where it is an issue of how best to see [X] in a relationship with her father, my client concedes that and my client concedes that she should. She is not arguing any particular risk at this time other than her concerns that the father might yell, given that if he were to yell at [X], given [X]’s comments about this, then that would cause real issues.
Having regard to all of the evidence, I am satisfied that orders can be made for the child to have a meaningful relationship with the father whilst protecting her from harm, including an order that the father engage with psychological support as recommended by the family consultant.
An order which prevents the parties from having to come into contact with each other at changeover is also likely to reduce the prospect of the child being exposed to conflict between the parties, which seems to be the basis of many of the allegations of family violence which were made.
Given the father’s concerns about the applicant’s influence at the child’s primary school, it is also appropriate that an order be made for the first 12 months after these orders that the applicant not be in attendance at the child’s school whilst the child is in the care of the father. This will allow all parties to be clear that when the child is in the father’s care, he is responsible for attending to her needs.
The applicant needs to allow the father space to attend to the child’s needs and allow the child space to learn that she can rely upon the father to meet those needs.
I turn now to the other factors in section 60CC(3).

Section 60CC(3)(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

The child has expressed a preparedness to spend time with the father, notwithstanding the resistance that she has shown thus far.
To the extent that the child has expressed concerns about being with her father, I agree with the comments made by Dr G that a lot of the fears that the child has expressed and inextricably linked to the concerns raised by the applicant about the father. It is important, therefore, for the child to spend time with and get to know her father so that she can lay those fears to rest. The watch list order, once explained to her by the Independent Children’s Lawyer, should give her some comfort that the father cannot simply whisk her away to Country A.

Section 60CC(3)(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)

The child has a positive and loving relationship with the applicant. The applicant needs to learn some strategies to deal with her own anxieties and feelings about the respondent in a way which allows her to facilitate the child’s relationship with the father.
The child’s relationship with the father has not been allowed to developed and needs to be re-established with support from both parties and, in this regard, I note the comments of Dr G that, given her age and her transition to high school, there is a small window of opportunity for that to occur. It is hoped that once the child’s relationship with her father is re-established that she will also be able to reconnect with the paternal family and through that she can develop an understanding and connection to her heritage.

Section 60CC(3)(c) the extent to which each of the child’s parents 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

The applicant has been very critical of the father for his failure to involve himself in the child’s life. The father says that he has been excluded by the applicant, and I have already discussed these matters.
I find that the applicant has taken responsibility for the bulk of the caring if the child. I also find, however, that the father has wanted to take more of a responsibility in the rearing of his child but that, for reasons earlier discussed, has been unable to do so.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

I accept the evidence of the father that he has provided financial support to the applicant for the child. I accept his evidence that he has provided between $400 and $700 per month to the applicant and I also accept his evidence that he has undertaken to contribute to the child’s secondary school education costs.

Section 60CC(3)(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

Both parties acknowledge that the child must spend significant and substantial time with the father. This will represent a change from the current arrangement and will require an adjustment for the child. The proposed orders provide for a graduated increase in time with the father. It does not propose the immediate increase in time recommended by

Dr G on the basis that the father has not participated in the parenting orders program and, therefore, there is some merit in taking a slightly more graduated approach.
However, nor does it adopt the very cautious approach put forward by the applicant.
I am satisfied that by the middle of 2019, the child should be spending five nights per fortnight with the father and half of all school holidays. This is necessary to allow her to have a meaningful relationship with her father. The graduated time proposed in the orders over the upcoming long summer holidays will also provide an opportunity for the child to commence overnight time prior to commencing high school.

Section 60CC(3)(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 right to maintain personal relations and direct contact with both parents on a regular basis

There are no practical difficulties or expenses in the proposed orders. The use of a changeover provider such as Berry Street will provide some, albeit minimal, expense which the parties can meet.

Section 60CC(3)(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

I have discussed the applicant’s difficulty in supporting the child’s relationship with her father to date. She has given evidence, which I accept, that she now accepts that it is important for the child to have a meaningful relationship with her father and that needs to support that relationship and the orders provide for her to obtain further support to assist. I have also discussed the father’s failure to actively pursue such time as was ordered in the May orders. His failure to engage with the program recommended by the Independent Children’s Lawyer in June 2018 was a lost opportunity and has impacted on the rate with which time can now be progressed.
The orders also provide for him to obtain support so that he can help his child transition to spending significant and substantial time with him.

Section 60CC(3)(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

The child is 12 years of age. She has been described by the family consultant as a compliant but assertive girl who could express her voice.
Both parents have been assessed by a psychiatrist and neither have been diagnosed with any mental health issues which would preclude them from complying with the orders that I propose making.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I have already discussed these factors above.
I do note that the applicant has been a loving and caring primary carer and has provided for the child and the father, for his part, has pursued his application for the child to spend time with him since 2016.
It is a credit to both parties that, at the time of hearing, they each acknowledge that it is in the child’s best interest to have a meaningful relationship with the father and that the only remaining issue was how much time and how quickly to progress such time. The parties, in taking this approach, both appear to be child focussed.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;
(ii)    the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)   any findings made by the court in, or in proceedings for, the order;
(v)     any other relevant matter

I have discussed family violence issues already and there are no current intervention orders in place.

Section 60CC(3)(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

It is necessary for these proceedings to be finalised. The orders which are made provide a path forward for this family and for the child’s relationship with the father to be re-established with appropriate support.
The orders do provide that if the applicant does not facilitate the child’s relationship with the father, then the father has liberty to apply. This is necessary because of the parties’ failure to comply with the May orders prior to the final hearing.
There are no other section 60CC factors which are relevant.

Equal shared parental responsibility

In terms of equal shared parental responsibility, both parties agree that they should have equal shared responsibility. This then brings me to the question of whether the parties should have equal time or substantial and significant time.

Equal or substantial and significant time with each parent

The father’s application seeks five nights per fortnight and half of all school holidays, not equal time. The applicant’s proposal ultimately sees the child spending four nights per fortnight and one week during terms holidays and two weeks over the summer holidays.
As is evident from the reasons which I have just articulated, it is important for the child to have significant and substantial time with her father so that she has an opportunity to develop her relationship with him. It is important that the father have time both on the weekend and during the week as well as holiday time so that he has an opportunity to be involved in all aspects of the child’s life. I find that the father’s proposal better meets that need.
For each of these reasons, I make orders that:
a)the parties have equal shared parental responsibility;
b)the child live with the applicant;
c)the watch list order remain in place until the child is 18;
d)the child spend time with the father on a graduated basis leading to 5 nights per fortnight and half of all school holidays by the beginning of Term 3 in 2019 as follows:
i)from Saturday 14 December 2018:
(a)one day each weekend from 9:00am to 5:00pm alternating between Saturday and Sunday each week; and
(b)each Wednesday from after school (or 3.30pm if not a school day) until 7:30pm;
ii)from 6 January 2019 until the end of the long summer holidays:
(a)in week one, from 9:00am Saturday to 5:00pm Sunday and each alternate weekend thereafter; and
(b)in week two, from 2:00pm Wednesday to 2:00pm Thursday and each alternate week thereafter;
iii)from the beginning of Term 1 2019:
(a)in week one, from 9:00am on Saturday to 5:00pm on Sunday; and
(b)in week two, from the conclusion of school Wednesday to the commencement of school Thursday;
iv)from the beginning of Term 2, 2019:
(a)in week one, from the conclusion of school Friday to the commencement of school Monday; and
(b)in week two, from the conclusion of school Wednesday to the commencement of school Thursday;
v)from the commencement of Term 3, 2019:
(a)in week one, from the conclusion of school on Friday to commencement of school on Monday; and
(b)in week two, from the conclusion of school on Wednesday to commencement of school on Friday;
vi)provision for half of all school holidays in 2019; and
vii)thereafter these arrangements to continue;
e)changeover if not at school to be at Berry Street Contact Centre unless otherwise agreed;
f)if the applicant does not facilitate time under these orders the father will have liberty to apply;
g)the father is to be in substantial attendance when the child is in his care;
h)the father is to enrol in Catholic Care, Suburb B within 7 days;
i)the Independent Children’s Lawyer is to nominate a therapeutic counsellor to assist the child;
j)the parties to undertake Tuning into Teens program as agreed by the parties in the course of the hearing;
k)the father is to undertake counselling with Ms C, as recommended by the family consultant;
l)
various restraints, including a restraint that the applicant not attend the school whilst the child is in the father’s care for

12 months;
m)usual orders regarding keeping each other informed of contact details, parties having access to information about the child’s activities, schooling, health and the like; and
n)the Independent Children’s Lawyer explain these orders to the child within 7 days.

I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 14 December 2018

[2018] FCCA 3829

14 December 2018

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