Lafeyette and Fontaine

[2012] FamCA 1109

FAMILY COURT OF AUSTRALIA

LAFEYETTE & FONTAINE [2012] FamCA 1109

FAMILY LAW – CHILDREN – Interim orders – the mother seeks interim parenting orders for the period she is deployed overseas – the mother is a member of the Australian Defence Force – the mother seeks that the child spend time with her maternal aunt and maternal grandparents while the mother is overseas – the mother seeks the child attend a support program for families of deployed servicemen – the mother seeks that the child have private and unsupervised telephone conversation with her and with the maternal grandparents – high level of conflict between the parents and between the father and the maternal family – allegation by the father that the maternal grandfather threatened him – where an interim apprehended violence order in place against the maternal grandfather by consent – no finding made about the alleged threat – 

Family Law Act 1975 (Cth), s 60CC

APPLICANT: Ms Lafeyette

RESPONDENT: Mr Fontaine

FILE NUMBER: CAC 261 of 2009

DATE DELIVERED: 27 February 2012

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 27 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Ms P Lyndon

Orders

1. For the period that the mother will be deployed overseas on military operational service:

   (a)B, (“the child”) born … December 2005, will spend the third and seventh weekends of the 2012 school terms with her mother’s sister and her family, that is Mr and Ms C and their children D and E. 

   (b)The weekend will commence at 6pm on Fridays 23 March, 28 May and 15 June 2012 and conclude with the child being picked up at the F Street Newsagency at 4pm on Sundays 25 March, 30 May and 17 June 2012.

   (c)The second interim order sought by the mother about the time that the child might spend with her maternal grandparents, Mr L and Ms M Lafeyette, in Victoria during school holidays is refused.

   (d)The child attend the five weeks G Program if the mother’s sister is able to pick the child up from school and deliver her to the program on the basis that the father will collect her at the end of the program.  If the mother’s sister is unable to do this (and no obligation is imposed on her in this regard or expectation that she would either have the time or the capacity to carry out such an activity) then the child will not attend the G Program.

   (e)The child will have a conversation with her mother three times a week, if the mother is able to engage in such conversations, on Sundays, Mondays and Wednesdays at 7pm (which will take account of the child’s possible attendance at the G Program).  Such telephone calls between the mother and the child will occur with the child’s father not being present and not being on speaker phone. In this regard I note that the mother requests that there be some flexibility because of the nature of her employment and the possibility that she may not be able to make a call at the designated time.  In this regard I recommend that the parties do what they can to be flexible about this matter, but in the light of their past inability to cooperate I make no order as to any substituted time if in fact the nominated time cannot be met on the days that are referred to. 

   (f)Until further order the father will ensure that the child telephones her maternal grandparents in Victoria once a month.  Such telephone calls will not be the subject of speaker phone mediation or intervention by the father and will be conducted by the child in private.  (This order will be the subject of final orders in the final proceedings before the Court.)

2. The orders sought by the mother about alternative birthdays and the child is not granted at this point, although I recommend to the parents that they consider arrangements which will permit some time for the child to be spent with her mother either on her birthday or proximate to it in each alternative year.

3. Each of the father and his partner, the mother and her partner, and the maternal grandparents, be and hereby restrained from saying, or permitting other persons in  the child’s presence to say, unkind or unpleasant things about the mother or father in  the child’s presence.

4. To remove any doubt, it is noted that by consent, the time that the mother would ordinarily spend with the child during the shorter school holidays will:

   (a)If the mother is spending the first half of the school holidays with the child, commence on the first Saturday after the last day the child is obliged to attend school and will conclude on the second Sunday thereafter.

   (b)If the mother is spending the second half of the school holidays with the child, commence on the second Saturday after last day on which the child is obliged to attend school and conclude on the Sunday immediately before the child returns to school.

5. The proceedings for final orders commenced by the application filed by the mother on 22 December 2011 are otherwise stood over for further determination upon the mother’s return from her overseas service on a date to be notified to the parties when this order is issued.  On that day I will give further directions about the filing of further material in relation to any issues that are still outstanding between the parties.

6. The interim matter is finalised in so far as the final orders have been made today, those aspects of the mother’s application are finalised, the other matters remain for further determination in due course. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 261 of 2009

Ms Lafayette

Applicant

And

Mr Fontaine

Respondent

REASONS FOR JUDGMENT

1. These proceedings before the Court come on at relatively short notice as a result of an Initiating Application filed on 22 December last year by Ms Lafeyette who is the mother of the child B. The child, who was born in December 2005, was the subject of orders made by me on 5 November 2010 after a contested hearing between the parties.  The orders indicate that the form of the orders was made by consent but the substance was not.  Those orders of 5 November 2010 made provision for the child to live primarily with her father in Canberra and spend time with her mother.

2. The mother who is a serving member of the Australian Defence Forces had been posted to N Town in Queensland.  She is now subject to service overseas and will be there for a period of some four or five months.  The arrangements put in place by the orders of 5 November 2010 obviously cannot apply in circumstances where the mother is not in Australia and, accordingly, in circumstances where the parties cannot speak or communicate effectively with each other. It is in these circumstances that the mother has filed an application in which she seeks certain orders for the period she is away and she also seeks permanent orders.

ORDERS SOUGHT BY THE MOTHER

Order sought by the mother while she is on overseas service

1. The mother seeks orders that while she is away, the two weekends in a school term which the child would ordinarily have spent with her, that is, the third and seventh weekend, should be spent with the mother’s sister and her brother-in-law and their two children D and E.  This is an opportunity the mother says for the child to continue her relationship with her cousins and with her maternal aunt and uncle.  The mother’s proposal is that the child should be picked up from school on the Friday and returned to her father at 4pm on the Sunday – or returned to a changeover at F Street newsagency on the Sunday. 

2. The father agrees that the child spend time with her aunt, uncle and cousins on the three weekends during the time that the mother is likely to be working overseas but he says the time should start at 11am on Saturday and finish at 5pm on Sunday. 

3. The father’s reason for the later start on the weekend is that the Friday night represents an opportunity for the child to have down time and this down time enables her to be ready for the weekend’s activities.  The child also attends ballet on Saturday morning. Thus, the father contends, if the child were to commence spending time with her aunt, uncle and cousins at 11am (rather than after school on Friday) then she could attend ballet before she goes to her aunt and uncle’s place. 

4. The mother also seeks that, while she is away, the half of the school holidays the child would ordinarily spend with the mother, should be spent with the child’s grandparents in Melbourne and the dates nominated.

5. The mother seeks as an ancillary order that the costs of the direct flights from Canberra to Melbourne be shared equally by the mother and father.  The orders made by me in November 2010 provide for the mother to meet half the costs of the child’s travel to spend time with the mother and the father to meet the other half. Thus, the mother says, the order she now seeks for the parents to equally share the costs of flights between Canberra and Melbourne, mean the parents will still share half of the costs of the child’s travel.

6. The mother also seeks that the child attend a five week G Program which is run by the G Community Organisation for children whose parents are working overseas.  This is a course commencing on 7 March and, apparently, as explained by the child’s mother in the proceedings today, children in groups of about seven to eight children will attend the Program from 3.30pm to 5pm on a Wednesday afternoon. This Program runs for five weeks.  The purpose of the Program, as is apparent from a document tendered by the father who investigated it and which is apparently available on the website of the G Community Organisation, is to provide support for children during the absence of one of the parents working overseas.

7. The father feels that it is unnecessary for the child to be involved in this Program as her involvement with the G community is more limited than perhaps many of the children who come from intact families where one of the parents is working overseas.  He also says, while he does not object to the Program in principle, there are some physical logistical difficulties associated with the child attending the Program. In order for the child to get to the Program, which is run in Suburb H, at 3.30pm, she would need to leave school, which is in Suburb I, at 3.10pm.  The father would need to pick her up from school and take her to the Program and then pick her up at 5pm when the Program concludes. The father says his work would not ordinarily permit him to leave early to do this. Ordinarily, the child attends after-school care and is picked up by the father or his partner.

8. The father suggested, however, that if the maternal aunt, who is the subject of the other orders I have mentioned previously, were able to pick the child up and take her to the Program then he would be prepared to arrange his time to pick the child up after the Program. 

Final orders sought by the mother

1. The mother seeks that the child have a private telephone conversation with her mother three times a week between the hours of 5 pm and 8 pm or, alternatively, when it is suitable for the child to call.  I am conscious of the fact that these are final orders sought and further time may be necessary to enable the form of the orders to be explored in more detail if the parents consider it to be appropriate to do so. The time limited should be flexible to allow for the exigencies of working overseas and, second, that it should be a private telephone conversation, not one which is supervised by or listened to by the father.

2. This latter issue of [lack of] privacy in communications between the parties and the child is something that the father seeks to extend, or extends at present in practice, to conversations that the child might have with her maternal grandparents.  He sees this as a way of ensuring that she is not in some way affected by adverse comments which might be made about him by the mother and/or the maternal parents.  For her part, the mother says this is a controlling mechanism on the part of the father and he does it deliberately to ensure the child is not able to have a proper and effective communication with her or her parents.

3. The interposition of the speaker phone, the father says, occurred after the child became distressed with things that had been said to her when she was on the phone without the speaker being on. The father says the interpositioning of the speaker phone enables the conversation to concentrate on things that are appropriate and necessary for the child and to enable her to communicate. The father is concerned that if the speaker phone is not on, then there are comments made to the child about her father’s deficiencies.

4. The mother denies that there is any denigration of the father either by herself or by the maternal grandparents. In the circumstances of this truncated hearing it is not possible for these matters to be explored in any detail.  It may be a matter upon which I should make available further time when the mother returns from overseas.

5. It seems clear that both parents suggest the other parent is engaging in inappropriate language in the conversations each has with the child about the other parent. The report from Ms J (exhibit J1) about this matter would support the proposition that each of the parents expresses serious reservations about the other parent.  Each of them believes that the other parent is doing whatever he or she can to denigrate the other parent.  And that each of them fails to provide any support, orally at least, to the child in relation to the other parent and to her continuing relationship with that person.

6. This culminated, unfortunately, in the maternal grandfather being so disturbed by what he regarded as an inappropriate attitude on the part of the father that he rang him and made what the father interpreted as a death threat. This, in turn, resulted in an order being made without admissions but by consent, restraining the maternal grandfather from a range of activities including harassing the father and also approaching within a certain geographical limitation.  That order will expire in November 2012 unless it is otherwise renewed.

7. This situation reflects the conflict between the parents in that the mother believes her father was justified as he had reached the end of his tether because of what he and she regarded as an unreasonable attitude on the part of the father and his deliberate policy, she believes, of alienating the child from her. 

8. For his part the father says that he is being harassed by the mother and her family and that this is also inimical to the child’s best interests. In particular, this means he is reluctant to permit the child to be exposed to a lengthy period with the maternal grandparents because of the likelihood that the child will be fed, what the father would say, is inappropriate information about him by the grandparents.

9. The father seeks an order that the mother, maternal aunt and maternal grandparents be restrained from saying unkind or unpleasant things about the father to the child or in the presence of the child and not to allow any other person to do so.  The mother seeks a similar order in relation to the father saying that he and his family have engaged in a program of alienation and denigration. 

10. I am prepared to make orders which would impose a mutual obligation on the parents and, so far as they are within their control, their families from saying unkind and unpleasant things.

11. However, a piece of paper is never going to stop the concerted efforts of a parent to denigrate the other if he or she wishes to do so.  Ms Lafeyette justifiably complains that if such denigration occurs there is virtually no way in which there is any immediate recourse on the part of the parent who claims to have been slandered or disadvantaged. 

12. That, unfortunately, is the nature of it until the parents can reach a point where their love for their daughter and their concern about her best interests is elevated over their own dislike for each other and their families’ support for that dislike for the other. Until that point is reached, there will be a consequential downside effect on the child in that she will find her parents at war and this will not enable her to grow up as a supported and loved child.  However, I cannot do much more than to make orders which will facilitate parents exercising their obligations and responsibilities not only by law, but as parents.

13. The last matter that the mother seeks in her final orders (which, again, may be a matter that needs to be considered at some time in the future when the mother returns from overseas) is that the child spend alternate birthdays with each parent on the basis that in years ending in an even number she will be with the mother in Queensland and in years ending with an odd number she will be with the father in Canberra. The mother seeks that the cost of the child’s travel to spend time with the mother be shared equally by both parents.  It seems to me that this was an order the mother included in her application without giving it a great deal of thought.

14. It seems clear from my questions to the mother about how this might work that she had not really contemplated how it might comfortably be fitted into the child’s life not only in this year but in years to come and times when she might have other commitments and her school might be a more important consideration.  The mother says, and there is some justice and justification for this, that the child ought to have an opportunity to spend her birthday with each of her parents.  As a matter of principle I do not think anyone would disagree. 

15. The difficulty, of course, is what would happen if the birthday does not fall on a weekend or on a day immediately adjacent to a weekend.  If that is the case it means that the child will miss some school if she spends her birthday with her mother every second year.  The bottom line, I suppose, although there’s no evidence to support it, is that it is improbable that her missing one or two days of school in this way would be of any major concern to her development academically, socially or otherwise. 

16. It is probably an important matter to be dealt with but it is something that I would need to hear more evidence about before I was prepared to make a final order. However, on the limited evidence I have at the present point and in so far as it is appropriate for me to make a final order about anything this day, it does seem that it would be appropriate that there should be an order of the sort proposed by the child’s mother. It should be rather more carefully thought out. Perhaps if, in the year that the child is due to spend her birthday with her mother, if the child’s birthday falls in a week in which she is attending school, then her birthday might be celebrated with her mother either on the Monday or the Friday of that week, whichever should be more convenient, so that she can have a celebration approximate to her birthday and have that celebration with her mother in every second year.

17. However, that is a matter for either agreement between the parties or, alternatively, further determination at a final hearing which I will list at the end of these proceedings. 

18. Those, then, are the issues between the parties.  In coming to any determination about them I am obliged to take account of the matters under the Family Law Act 1975 (Cth) (“the Act”) which require that the paramount consideration must be the best interests of the child. The Act sets out the factors I am to take into account in determining what is in the child’s best interests.

Discussion

1. The parties have had the opportunity of considering these factors with me not long ago but I repeat some of them just for the purposes of ensuring that the reasons for my decisions are as transparent as they reasonably can be, given the paucity of the evidence I have before me on this day. 

2. However, before doing that, I refer briefly to the advice and the opinion of the Family Consultant who engaged, at my direction, in the child responsive program which resulted in the Children and Parents Issues Assessment, dated 15 February 2012, (“CAPIA”) which the parties have. 

3. The summary that Ms J records[1] comments on the father’s perception that the mother and her family are undermining his authority in relation to his role as the child’s primary carer and in relation to him having sole parental responsibility for her.  The report continues to comment that Ms Lafeyette perceives that Mr Fontaine is marginalising her role as the child’s mother by overstating his role as primary carer, and that he is dismissive of the child’s relationship with members of her extended family. 

   [1] Exhibit J1, 10.

4. Each of those matters recorded by the Family Consultant is a matter which I would find as a fact in the circumstances of the proceedings before me on the limited evidence that I have.  I cannot say the extent to which there is an undermining of authority. I cannot say the extent to which the father is marginalising the mother’s role.  However, each of them is convinced that the other is doing that, and that perception is, in some ways, a substitute for reality for all practical purposes.  The perceptions I find. The reality I do not find at this point.

5. The Family Consultant’s comment was that if the parents continue in their bitterness towards each other, the impact on their health could be considerable.  I agree. The Family Consultant also says there is no questions that if the adults’ conflict continues it will have a negative impact on the child’s ability to maintain a positive relationship with each of her parents, and on her ability to focus fully on the tasks associated with the various stages of her development.  Again, it would seem that this is a comment both parents will probably agree about, from different perspectives, and each would say it was the other’s fault that there is a conflict between the adults.

   The Family Consultant goes on to say this:

   I highly recommend that [the father] and [the mother] seek professional assistance to better manage their parenting relationship, and to better understand the importance of each other’s roles in relation to the child –

   and that reflects in the final recommendation that is made by the Family Consultant:

   ...the parents individually seek professional assistance to better manage their parenting relationship.

6. It seems likely that, if the parents were to attend upon a counsellor jointly, it will result in some conflict between them and, hence, it’s probably preferable, as the Family Consultant suggests, that they should individually seek professional assistance if they think that will help. 

7. The practical thing that would help is for them to make a positive decision that they will positively reinforce the role of the other person with their daughter, and to accept the responsibility that not only the Act, but commonsense and the practical elements of parenting, suggest is appropriate.

8. Each will maintain that the other is responsible, and he or she does not have to change, and some time, in about another 13 years or so, the child will find that her parents have spent the best part of her life fighting about who was responsible for the fact that they do not get on with each other.  If that is what they want, I guess that is what will happen.

9. The fact that is not necessarily a matter in evidence before me today in any practical sense, but which I accept is appropriate evidence from the Family Consultant, is that the child misses her mother and yearns for her presence.  This is not necessarily what the father believes, but what the Family Consultant says mirrors what I have reflected upon in my original judgment in this matter. That is, that when the mother is in Canberra there is little doubt that it will be to the child’s advantage to spend as much time with her as is practical. 

10. The Family Consultant goes on to comment:

    It is concerning that, when the opportunity arises, the hostility between the parents is curtailing extra time the child might spend with her mother in Canberra.

11. One might add, “or in any other place”.  Similarly, it is a pity that the child is unable to converse with her mother or maternal grandparents in private when communicating with them by phone because of the father’s fear that the opportunity will be taken to undermine him as the child’s primary carer. 

12. Without extensive cross-examination, it is impossible to determine in the hearing this day as to whether or not the father’s fears in this matter are justified, or whether his use of the speaker phone is justified because it enables him to moderate in some way the conversations that occur.  It is a great pity that both parties take the view that there is such a matter of concern between them.

13. The Family Consultant comments as follows:

    The solution to the problem is in the hands of all concerned adults on both sides of the family – that is, to refrain from making derogatory comments in the presence of the child that will upset her, because they concern the individuals who are most significant to her.

14. One could hear almost a chorus of “Hear! Hear!” in the background from everyone, but no one is quite prepared to step up to the mark to be the first to contribute.

15. There is a comment further from the Family Consultant that it is to Mr Fontaine’s credit he has agreed to the child spending time with her maternal aunt’s family while her mother is overseas, and the Family Consultant goes on to comment that hearing her mother spoken of in affectionate and positive terms will provide a link between the child and her mother during her mother’s absence. 

16. The Family Consultant also comments that it would be equally beneficially for the child to spend some time with her maternal grandparents, and she goes on to say this (and I quote it because of the importance of this in the mother’s application):

    There seems little reason why she should not spend time with them at their home, providing she is shielded from negativity across both sides of her family.

17. I note that comment, and although it is a recommendation and not evidence, it is obviously a truism which ought properly to be implemented. It may not be possible to be implemented for reasons not immediately apparent to the Family Consultant, perhaps because of the hostility between the mother’s parents and the father. 

18. The mother would say that the hostility between her parents and the father is the father’s fault, and that it is his undermining the mother that generates the frustration, anger and hostility in her parents.  The father maintains it is the maternal grandparents’ hostility which causes him to be unable properly to support the time that the child spends with them.  The maternal grandparents have not had an opportunity to present their point of view in these proceedings, and I am unable to make any order today that would have the effect of restraining them from engaging in the conduct that the father perceives they have engaged in.  I say that because they are not parties to the proceedings and have no particular notice of the order that is being sought against them. It would not be an exercise in natural justice to impose such an order on a third party. Moreover, in the ordinary course of events, such an order might, arguably, be unable to have an effect on third parties, except within the broad confines of s 68B. 

19. The Family Consultant comments that the mother’s proposal for the child attend the G Program seems to be a positive one:

    It could provide the child with the opportunity to better understand her mother’s role as a Defence Force Officer, to develop a sense of pride in her mother and to develop a sense of identity with other children who have a parent in a similar position to [Ms Lafeyette].

20. I have commented to some extent on the father’s attitude to this matter, and to the mother’s.  I don’t think there is much more I can add.  There are practical difficulties associated with the child attending the Program which may be overcome by the interposition of the mother’s sister. However, that is a matter which the mother’s sister is unable to comment about today.  I will make an enabling order for the maternal aunt to take the child to attend the Program to occur if, in fact, that arrangement is capable of being carried out.

21. Finally, the Family Consultant says as follows:

    It would be a pity if the child was inhibited from sending her mother drawings or other items she has completed because of the bitter relationship between her parents.  Similarly, it is a pity that her parents are inhibited from sharing information about their child, because of their bitter relationship.

22. Again, the second comment is one with which no one would disagree, but it would appear that neither parent is capable of taking steps to overcome the problem. 

Best interests of the child

1. The factors I am to take into account in determining the child’s best interests are set out in two parts: “primary considerations” and “additional considerations”.

Primary considerations

1. These are said to be the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  I note in relation to the first of the primary considerations that the emphasis in the primary consideration is on parents, and not on extended family, although extended family are specifically referred to under “additional considerations”. 

2. I am not satisfied there is any evidence which would enable me to find that the child needs to be protected from physical or possibly psychological harm as a result of exposure to family violence (abuse and neglect are not issues in these proceedings), The only family violence she is likely to be exposed to is violence between her father and the mother’s father (on the basis of some of the evidence before me).  The extent to which that is the product of frustration on the part of  the child’s grandfather, and the extent to which it is brought about by the conduct, intentional or otherwise, of the father, is a matter for debate on a different occasion if there is appropriate evidence before me.  In any event, there is certainly no suggestion that the child would be in any risk of any physical harm if she were with her grandparents – as is sought by the mother, on an interim basis.

Additional considerations

1. The additional considerations I take into account are these.

2. There are views expressed by the child which are not deeply explored by the Family Consultant. These are that she both enjoys time with her mother’s family, and on her father’s assertions, that she does not enjoy time with her mother’s family, although it appears that this is which occurs from time to time only.  I am unable in these proceedings to form any clear view as to the opinions expressed by the child and, even if I were, I have no evidence from (even) the Family Consultant to enable me to make a determination about her maturity and the weight to be attributed to the child’s views.

3. I am satisfied that each of the parents has a positive relationship with her, and I am satisfied, from the evidence from the CAPIA drawn to my attention by the child’s mother, that the child has a positive relationship with other persons, I note the Act specifically refers to grandparents, or any other relative of the child. I am satisfied that the child has a positive relationship with her grandparents but not satisfied as to the other relatives at this point. I note the mother asserts that the child has a friendly and loving relationship with her more extended family; however, it is difficult on the evidence before me to find this with any degree of certainty.

4. I do not find that either of the parents has demonstrated any significant willingness or ability to facilitate and encourage a close and continuing relationship between the child and the other parent.  I find that sad, but on the evidence before me there is no suggestion that either of them is capable of doing so at this point.  I hope this changes, but I cannot do anything about it if it does not.  It is in the parents’ hands to do something about changing, not mine.  No order I make can force parents to change their behaviour. Only they can do that, and they can only do it if they are prepared to put their child’s interests ahead of their own.

5. The likely effect of changes in the child’s circumstances, including the effect of the separation of her from either parent, or from other people, including grandparents (and again, I make reference to the fact that that’s specifically mentioned in the Act) is difficult to gauge. The immediate separation from her mother is brought about by her mother’s employment, and although the period for which the mother will be away represents probably quite a large proportion of the child’s life at this stage, in the overall scheme of things it is not a very long time and, hopefully, her mother will return safely and the relationship between the child and her mother will resume, possibly improved by the things that each parent might reflect upon between now and the time the mother returns to Australia.

6. The separation from her maternal grandparents over the period of the mother’s overseas service is brought about by a lack of evidence, rather than anything else.  I am not satisfied that separation from her maternal grandparents for the period of the mother’s overseas service will necessarily operate to the child’s detriment.  It would be for her benefit if she were able to have happy times with extended families on both sides, and it may yet be the case that can be accomplished by agreement between the parties and the families, but not by order of this court, based on the evidence I have before me at this point.

7. There are practical difficulties and expense associated with the child’s spending time with other people, either her mother or other members of the family.  These are matters the parents have resolved practically previously, and I would expect them to do so again.  There is nothing in the orders sought that would impose any additional or new problem for either of the parents, and I am satisfied that arrangements could be organised. 

8. I note the capacity of each of the parents to provide for the child’s emotional and intellectual needs.  That hasn’t been a matter in issue before me this day, and it is not a factor to influence my determinations about the matters before me one way or the other.

9. I also note the capacity of each of the parents, and of grandparents and other relatives, to provide for the child’s needs, including her emotional and intellectual needs, is a factor about which I have little evidence, but also little conflict.  It is agreed that each of the people in the extended families can provide some support for the child’s emotional needs.  No one was concerned about her intellectual needs in this equation.  I say that not as a criticism, but as a comment, and a reference to the nature of the proceedings before me.

10. There is nothing in the child’s background or cultural characteristics which require special consideration. She is not an Aboriginal or Torres Strait Islander and, hence, the provisions of section 60CC (3) (h) do not apply. 

11. The attitude of each of the parents to the child and to their responsibilities as parents is not one of the high points of these proceedings.  Neither parent seems able to set aside his or her enmity in relation to the other to put the interests of the child first.  Each professes to do so; neither does so in practice, in my observation.

12. There is family violence involving a member of the child’s family. The allegation is there was a threat made by the maternal grandfather to the father, a threat which is not the subject of specific information before me. The mother denies that the allegedly used words were the ones spoken by the maternal grandfather.  The mother was not present when the alleged threat was made.  The father was.  It is more likely that his version of this incident is correct. However, it is possible the words were, as the mother suggested, a measure of the maternal grandfather’s frustration rather than anything else.

13. There is a family violence order in existence which applies to a member of the child’s family. I take account of the fact that the order was not a final order and, in any event, the making of the order was not contested.  This means there is no, in legal terms, issue estoppels about the incidents referred to. I do not make any specific finding as to the words used, or as to the threat intended, or indeed able to be perceived to have been intended. However, there is the reality of the order. The reality that the maternal grandfather had the opportunity to contest the order (and the mother says he travelled to Canberra to contest it). But the result indicates that, in the end, the maternal grandfather consented to the order. 

14. Finally, I am obliged to consider whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings about the child.  There are some matters before me today which, in fairness, I could not make any final decision about (except with the consent of the parents). Those matters have not been the subject of direct evidence or proper submissions, and there was no opportunity for further evidence to be called today.  Those matters, sadly, I think I should put over to another date after the mother returns, to have a final hearing about any matter outstanding in relation to the child.

15. I am also directed under the Act to take account of the extent to which each parent has fulfilled or failed to fulfil their responsibilities as parents in taking opportunities to participate in matters relating to the child, to spend time with her, and to communicate with her. Each of the parents to some extent alleges the other has failed in this duty. I am unable on the evidence before me today to reach any conclusion, and I do not make a finding adverse to either parent under the provisions of s 60CC(4). I take account of the fact the parents are separated, and that is a matter that I am obliged to take account of under

    
    

    s 60CC(4A). 

Parenting orders

Interim orders

1. The mother makes an oral application for an order defining the school holiday periods.  An ideal situation would be that the parents are flexible about the school holiday period and which point is the mid-point. However, that situation will not happen with these parents and, accordingly, some precise definition is necessary.  Although it is not part of the formal application by the mother, I am prepared, particularly as there has been agreement about the matter, to give her leave to make an oral application to define the terms of the school holidays and the time that the child would spend with her and to make orders which appear to be the orders sought by each of the parents. 

2. The mother also seeks that she be able to communicate with the child by Skype.  The father does not have that capacity at present to obtain Wi-Fi or broadband to enable Skype conversations to occur, and I am not prepared to order him, nor do I think it would be appropriate to order him, to do so.

3. I note, without making any determination, the mother’s allegation that the father’s attitude is persistently one of negativity and, to use her words, “it’s always me pleading and him giving in at the last moment about it.”  I am not satisfied that is the case. It will require further evidence if I am to pursue some of those matters in due course.  I note also the mother has not previously instituted proceedings, so far as I am able to determine, about breaches of the orders that were made and in such circumstances, it is difficult for me to take the view that (a) there has been a breach of the orders, and (b) the mother has been left, as she obviously feels she has, without any recourse.

1. Taking all those matters into account I therefore make the following orders and I will explain in relation to each order as I make it the basis upon which I do it. 

2. I deal first with the interim or procedural orders sought which relate to variations to the arrangements about the child during her mother’s overseas service.  First, I make an order that the child spend the third and seventh weekends of the 2012 school terms with her maternal aunt and her family, that is, Mr and Ms C, and their children, D, and E, while the child’s mother is overseas.

3. I comment, just briefly, there is a dispute about the commencement of the time that the child would spend with her maternal aunt.  There is no “in-principle decision” I might reasonably make about this matter.  We are talking about three weekends in March and May and June – so once a month there is a weekend involved. This is in substitution to the time that the mother would otherwise have spent with the child.  The dispute appears to relate to when this time should commence.  The mother proposes that it commence on Friday after school, and the father proposes that it commence on Saturday morning after the child’s ballet class. I did not find the father’s reasons for a later start convincing. The father said that Friday night is an opportunity for the child to have “down time”. It seems to me that the “down time” the child has at her father’s home could equally occur at the maternal aunt’s home on the Friday. And provided the maternal aunt understands that she is to take the child to her Saturday morning ballet class, it seems to me that the child should spend that weekend with her maternal aunt and her family, commencing on Friday afternoon.

4. I say that based on the fact that the father, quite properly and reasonably and in the interests of the child, had agreed that the time with the maternal aunt should be in substitution for the time ordinarily spent with the mother on the days indicated, so that there is no dispute about the fact that the child would benefit from the time she spends with her aunt.  I do not believe there is any reason why it should not be a benefit to her over a slightly longer period.  In this regard, however (and I will ask for comments from the father before I make this order in any final form) I think the time with the child should commence at 6 o’clock on the Friday, which would give the child time to get home from school and be picked up from there and then the weekend to commence.

5. I complete the order I indicated I would make. That order is for the child to spend weekend time with her maternal aunt and her family. Such weekend time will commence at 6 pm on Fridays, 23 March, 18 May and 15 June, and conclude with the child being picked up at the F Street newsagency at 4 pm on Sundays, 25 March, 20 May and 17 June 2012.

6. I indicated previously that I declined to make orders, at this point, which will permit the child to spend time with her grandparents during the school holidays when she would otherwise be with her mother.  When her mother returns, the maternal grandparents can spend time with the child during the time that the child is with her mother. This is a matter about which I would permit additional evidence to be adduced at a further hearing.  However, on an interim basis I do not find any justification for an order that the child spend time with the maternal grandparents in the mother’s absence. It seems to me that there are risks involved in it which, in the circumstances, are not appropriate to take.  The second order sought by the mother about the time that the child might spend with her maternal grandparents in Victoria during school holidays is refused.

7. The third matter is that the child attend a five week G Program.  This has been referred to in the course of my judgment and was the subject, at least to some extent, of exhibit F3.

8. The father agrees that the Program may have some benefit for the child but does not see it as being imperative.  The Family Consultant thought it would be a “good idea” and broadly speaking it would seem that some sort of support is necessary. The mother was vague about what she would tell the child about her overseas service. 

9. It is unfortunate this is not a matter which could have been the subject of discussion between the parents because as the overseas service K Booklet (which Mr Fontaine had managed to obtain and which, in fact, the mother had not been able to obtain apparently) prescribes, it is important that the children should be prepared for what is going to happen in advance. There are various suggestions given about reinforcing the idea that her mother will be returning, about the need not to lie about where the mother or father is overseas, and in this regard, the mother seems to be ambivalent as to how this should be undertaken. I reflect the fact that the K Booklet states, and I quote, “be realistic but do not scare the child.”  I accept that this is part of the mother’s conundrum in what she is to tell the child.  The advice is contained in the book seems to be practical and in accordance with commonsense. I would expect both parents to carry out the requests therein contained. 

10. So far as the Program itself is concerned, I do not believe that the child’s attendance a necessity such that the father should interfere with his employment to take her to the Program.  I do believe, however, that if the maternal aunt is able to take the child to the course, the father has agreed he will pick her up and, on that basis, she should attend. If the maternal aunt is unable to do this, and no obligation or expectation is imposed on her in this regard, then the child will not attend the Program.  In this regard I note that the father has already made arrangements to inform the school counsellor about what is happening, which is also in accordance with the matters of advice contained in the K Booklet.

11. In relation to the final orders sought, I note that this is a matter which should be completed when the mother returns from her overseas service and has more time to obtain the evidence that is necessary and the advice that she might reasonably require to present these matters more appropriately to the Court. 

12. However, there are some matters about which the mother seeks final orders which appear to be the subject of agreement. Those are that the child will have a conversation with her mother three times a week if her mother is able to engage in such conversations on Sundays, Mondays and Wednesdays at a specified time, 7 pm (which will take account of the child’s possible attendance at the G Program).  In this regard I note that the mother requests that there be some flexibility because of the nature of her employment and the possibility that she may not be able to make a call at the designated time.  I recommend that the parties do what they can to be flexible about this matter. But, in the light of their past inability to cooperate, I make no order as to any substituted time if in fact the nominated time cannot be met on the days that are referred to.

13. It seems to me, notwithstanding the father’s view about the need for him to be able to supervise telephone calls between the child and her mother, that the calls should be made without speakerphone and the child should be free to speak to her mother in privacy, absent from her father.  If the parties persist in using time that they communicate with the child to denigrate the other party, this will reflect negatively on the parent who is doing that.  It is about time the parents engaged in some measure of trust and I make this order in the hope but not necessarily the expectation that they will in fact earn the trust that is necessary to enable the child to properly communicate effectively with her parents.  In relation to the order about the telephone conversations between the child and her mother, such calls will occur with the child’s father not being present and the call will not be on speakerphone.

14. The issue about the child’s spending time with her maternal aunt’s family for one weekend a month is a matter which I am unable to make any final determination about on the evidence before me. I note, in this regard, I have very little information about the circumstances of the maternal aunt and her family and, in particular, it is difficult at this stage to determine whether there is any justification for the child spending yet another weekend during each month with a person other than the person with whom she primarily lives, namely her father.  However, it is a matter upon which the mother may wish to adduce further evidence in due course. I make no order on an interim basis.

15. The mother further seeks an order on a final basis that the child be able to communicate with her grandparents in Victoria once a month and that such calls not be on a speakerphone.  This is, again, an order that I cannot finally make in these proceedings but I am prepared, particularly during the mother’s absence, to make this order on an interim basis and enable the finality of the order to be adjusted in due course if it proves to be more of a problem than it should. 

16. Accordingly, the order I make is as follows:  I further order that the father will ensure the child telephones her grandparents in Victoria once a month.  Such telephone calls will not be the subject of speakerphone mediation by the father and will be conducted by the child in private.  This order is until further order and will be the subject of further orders in the final proceedings before the court.

17. A further matter relating to birthdays is one which in my opinion should properly be resolved by a sensible agreement between the parents about how an arrangement can be made either to substitute a weekend that the child would ordinarily spend with her mother for one which approximates to her birthday in every second year, or that there be some extension of a weekend around about the time of the child’s birthday which would enable the birthday properly to be celebrated.  However, it is a matter to be resolved between the parents and I leave it for further determination in due course.  The order sought by the mother about alternative birthdays and the child is not granted at this point, although I recommend to the parents that they consider arrangements which will permit some time for the child to be spent with her mother either on her birthday or proximate to it in each alternate year.

18. The mother’s application for final orders filed on 22 December 2011 are otherwise put over for further determination upon the mother’s return from her overseas service on a date to be notified to the parties when this order is issued. And on that day I will give further directions about the filing of further material in relation to any issues that are still outstanding. 

19. Otherwise, the interim matter is finalised and insofar as the final orders have been made today those aspects of the mother’s application are finalised; the other matters retain for further determination in due course.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 27 February 2012.

Legal Associate: 

Date:  16 January 2013