Langford and Mellers

FAMILY COURT OF AUSTRALIA

LANGFORD & MELLERS

[2011] FamCA 854

FAMILY LAW – CHILDREN – With whom a child spends time – with whom a child communicates – Order that father spend time with the child during the day and not overnight

FAMILY LAW – CHILDREN – Application relating to passport – Application by mother for issue of passport to child to enable her to take child on overseas holiday – Application granted

Family Law Act 1975 (Cth), ss 60B(1), 60B(2), 60CC, 60CA and 61DA

MRR v GR [2010] HCA 4

APPLICANT:

Mr Langford

RESPONDENT:

Ms Mellers

FILE NUMBER:

CSC 359 of 2009

JUDGMENT OF:

Benjamin J

HEARING DATE:

4 October 2011

PLACE HEARD

Cairns

DELIVERED AT:

Hobart

DELIVERED ON:

4 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITORS FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Victoire

SOLICITORS FOR THE RESPONDENT:

AMR Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr J Trevino

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

ORDERS

Upon the father giving the mother fourteen (14) days notice by text message, then the father shall spend time with the child as follows:-
(a)    on the last Saturday of each month from 9.00am to 2.00pm at Suburb A;
(b)    on Christmas Day at Suburb A from 3.00pm to 7.00pm in the year 2011 and each alternate year thereafter;
(c)    on Boxing Day at Suburb A from 3.00pm to 7.00pm in 2012 and each alternate year thereafter; and
(d)    from 3.15pm to 6.15pm on the child’s birthday at Suburb A.
All changeovers, for the purposes of these orders, shall be made outside the newsagency at Suburb A unless otherwise agreed.
The father shall communicate with the child by telephone each Tuesday between the hours of 6.30pm and 7.30pm with the father to initiate such telephone calls.
The father shall spend time with and communicate with the child at such other times as may be agreed between the parties.
In the event the father fails to spend time with the child on three (3) consecutive occasions, as provided for in these orders, such time with the child will suspend.
The mother shall have the sole parental responsibility to apply for a passport for the child B born … 2002.
Upon obtaining such passport the mother shall deliver the child’s passport to the Registrar of the Family Court of Australia at the Cairns Registry, such passport to be held by the Registrar pending release in accordance with these orders.
The child’s passport shall be released to the mother for the purpose of a short overseas holiday, subject to the following:-
(a)    the mother shall serve personally upon the father notification of the time, date, place and duration of such overseas holiday;
(b)    that such holiday will be primarily within the school holiday periods;
(c)    the father not having filed, in a court exercising jurisdiction under the Family Law Act 1975 (Cth), an application to restrain the mother from leaving the Commonwealth of Australia;
(d)    a consequential order that once such notice is given and provided there is no reply or application by the father, then it shall be deemed as permission for the child to leave the country for the purpose of such a trip under the provisions of the Family Law Act 1975 (Cth).
The child’s passport shall be released to the father for the purpose of a short overseas holiday, subject to the following:-
(a)    the father shall serve personally upon the mother notification of the time, date, place and duration of such overseas holiday;
(b)    that such holiday shall be primarily within the school holiday periods;
(c)    the mother has not filed, in a court exercising jurisdiction under the Family Law Act 1975 (Cth), an application to restrain the father from leaving the Commonwealth of Australia;
(d)    a consequential order that once such notice is given and provided there is no reply or application by the mother then it shall be deemed as permission for the child to leave the country for the purpose of such trip under the provisions of the Family Law Act1975 (Cth).
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
These proceedings shall be removed from the list of cases requiring determination.
All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
The appointment of the Independent Children’s Lawyer be discharged as and from the date of these orders.

THE COURT NOTES

This order is in addition to the orders made by this Court on 24 May 2011 which orders remain in force and effect, a copy of such orders are attached hereto.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules2004 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Langford and Mellers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth

FAMILY COURT OF AUSTRALIA
AT CAIRNS

CSC 359 of 2009

Mr Langford

Applicant

And

Ms Mellers

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These are proceedings between Mr Langford and Ms Mellers in respect of the parenting arrangements for their daughter, B, (the child) who was born in 2002 and is now aged about nine and a half. The proceedings relate to the time the child should spend with her father; whether a passport should issue to enable her to travel overseas and whether there should be a general permission for her to travel overseas on holidays. The Independent Children’s Lawyer seeks orders that the father spend time with the child on regular occasions but not overnight and that such time be at Suburb A. In addition he recommends that there be telephone communication and that the orders cease to have effect if the father makes arrangements to see the child and breaches those arrangements on three consecutive occasions in a row.
The mother seeks orders substantially similar to that of the Independent Children’s Lawyer except that she wants the father to spend time with the child at Christmas in each alternate year rather than each year and she wants permission to obtain a passport, to which I have alluded to earlier.
The father opposes the issue of any passport for the child as he says that he is afraid that the mother may remove the child from the Commonwealth of Australia and never return. In terms of time, he seeks orders that the child spend a week with him in the school holidays in Brisbane, two weeks over the Christmas school holiday period, with one of those weeks being each alternate year including Christmas Day, from 9.00 am Saturday to 6.00 pm Sunday every four weeks in Queensland and, upon six weeks’ notice, a weekend in Brisbane at least each eight weeks.

BACKGROUND

The mother is aged 43. The father is aged 40. The father has a significant physical disability in that in 1995 he lost his leg to a motor vehicle accident. Although the leg was damaged in the motor vehicle accident it was not, in fact, removed until about 2003. In 1999 the father and mother commenced living together and separated in 2001. The child was born in 2002. A protection order was made some years earlier which expired in March 2008.
In October 2010 an order was made by a Federal Magistrate that the father spend time with the child. In June 2009 the father filed a contravention application and in July 2009 a further order was made by Federal Magistrate Willis that the father spend time with the child from Saturday to Sunday provided that he did not drive with the child in a car at that stage. At that time an independent children’s lawyer was appointed and a Family Report ordered. A Family Report was provided by Ms C, the Family Consultant.[1] That report was put in evidence before me.
[1] Dated the 19 October 2009.
In November 2009 the Federal Magistrate made an order that the parties each have a psychiatric assessment and in January 2010 a report of Dr D was filed in Court.[2] In February of 2010 an updated Family Report was provided by Ms C.[3] In March and April 2010 the Independent Children’s Lawyer requested that the parties undertake drugs screening. There was no attendance by the parties in that regard, and in May 2010 the mother revealed that she had attempted suicide some months earlier.
[2] Dated the 9 December 2009.
[3] Dated the 8 February 2010.
The matter proceeded and was listed for trial at the end of 2010. The trial did not go ahead as the father had not filed any material. The matter was then transferred to the Family Court. The matter was listed for a call over on the 3 May 2011 and there was no appearance by the father. He failed to appear at a mention on the 19 May 2011. On the 24 May 2011 the father attended court and said he had filed no documents, was moving to Brisbane and just wanted time with the child. At that time final orders were made with regard to the child’s primary residence and other aspects. The issue remaining to be determined was in relation to the time the father should spend with the child. I made directions about the father filing an affidavit. The father, in fact, filed an affidavit on 26 August 2011 in Brisbane but chose not to serve a copy on the other parties. During the course of the hearing I obtained a copy of that affidavit and made it available to the parties and allowed the father to rely on that material.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so-called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child, subject to section 61DA..
[4] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is not rebutted and it is in the child’s best interests, a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under s 61DA(2), but a Court determines that it is in a child’s best interests for an order for equal shared parental responsibility, it should be made.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with other persons is determined (see s 64B(2)). This is because, where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
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.
The factors guiding how a court determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC read as follows:
Primary considerations
(2) The primary considerations are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:-
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(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);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face-to-face time and communication.
In that evaluation, if there is to be an order for equal shared parental responsibility, the Court must consider:-
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.[5]
[5] MRR v GR [2010] HCA 4.
The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.
This is a matter where there is not a presumption for equal shared parental responsibility that matter having been determined. The issue is what time the father should spend with the child and whether a passport should be issued for the child. I will deal with the passport issue first because it is, perhaps, the less difficult of those applications. The mother lives in Australia and has lived in Australia all of her life. She has no contacts outside Australia. She wants a passport for the child so that if she wants to travel to Country E or a similar holiday spot the passport is in place. The father was opposing that application throughout. It seems to me that provided the passport was retained by a Registrar of this Court and released under certain conditions, there is no harm in permitting the mother to obtain a passport for the child and leaving it at the Court. I propose to do so.

The second aspect of the passport application is whether there needs to be an application to the Court by one or the other of the parties to take the child out of Australia on a holiday. That seems a fairly significant onerous burden on the parties, bearing in mind the age and maturity of this child. I intend to put in place orders enabling the parties to go on holidays with the child provided they personally serve the other party and file an affidavit of service. If they do so, and it’s over school holidays, it seems to me there ought to be no reason why the child cannot go and if a party has a concern about the child going they can make an application to the Court well in advance.
The substantive issue in this matter is in relation to the time the father has with the child and the Independent Children’s Lawyer identified the issues. They are:-
(1)The father’s ability to have a meaningful relationship with the child when he does not attend contact on a regular basis.
(2)Whether the father poses an unacceptable risk to the child due to his depression, abuse of alcohol, drugs and prescribed medication.
(3)Whether the father poses a psychological risk to the child.
(4)Whether the child should travel to Brisbane on a number of times per year to spend time with the father.
(5)What time the child spends with the father, whether on a fortnightly or a monthly basis, in F Town or whether, at times, it should be overnight.
(6)The extent of any telephone or electronic communication between the child and the father including emails, chat rooms etcetera.
In terms of the evidence there is no issue that the father has not seen the child face to face since at least 1 January 2011. The father has had the opportunity to do so, but, for a variety of reasons, he has not done so. I am not satisfied that those reasons are valid. I am satisfied that the father has chosen not to spend time with the child. He does, however, maintain continuing telephone communication with the child.
The father’s evidence was narrow and he was cross-examined by the Independent Children’s Lawyer and by counsel for the mother. The father says, and it’s not in issue, that he moved to Brisbane in late May or early June 2011. He hasn’t sent a birthday card, a birthday present, a Christmas card or a Christmas present to the child. His explanation was that he “didn’t think she would get them”. I am not satisfied with that explanation. The father said he’s not been involved with the child in the school. The father says he has a car in Brisbane and that he has had no accidents and no drug issues. He is out of debt except for a debt to the Child Support Agency, presumably for this child, of $1500.
His mother has not seen the child since about 2005 and has had a number of phone calls. The father has not attended a Focus on Kids course, as directed by the Federal Magistrate. He says he has attended the Triple P course, but adduces no independent evidence. For the purpose of this hearing I will treat him as having completed that course. If the father has the child stay with him over a period of time in school holidays in Brisbane he would continue to work, but his mother would provide help. The father gave evidence that his mother’s health was problematic, but then she would be assisted by his step-father.
The father now resides at an address in Suburb G which is a rented unit where he says he’s signed a lease for 12 months and pays $270 per week. This is only in recent times. He has permanent part-time employment of about 25 to 30 hours a week and earns net about $470 per week to $500 per week. He attends a gym and gets other benefits which enable him to look after himself and, he says, to see the child and transport the child to and from Brisbane from time to time. The father says he still struggles with depression and was hospitalised earlier this year. Problematically, the father says he no longer takes his medication as he says that his good job, good home, work and attending the gym is sufficient. Having regard to what Dr D has said, I am not that confident. The father is off his medication, although he has a general practitioner he sees in Suburb G.
The father conceded that he had two cones of marijuana before he saw Dr D and that he no longer attends counselling. He says that counselling is just talking and doesn’t assist him. He says he has not smoked or been intoxicated with marijuana whilst he has had the care of the child. The father says his use of alcohol has diminished and he has his anger and his aggression more in control.
The evidence of the mother is contained in her affidavits filed 11 November 2010 and 23 June 2010. That material was read into evidence and the mother was cross-examined by the father. I generally accept the evidence of the mother although I note that it would be through her subjective views of those matters. The two family reports of Ms C were tendered in evidence. She was cross-examined by the father and by the Independent Children’s Lawyer. Ms C, in her first report of 19 October 2009, made some recommendations which were subject to the report of the psychiatrist. Those recommendations included significantly more time with the father than is anticipated by the Independent Children’s Lawyer or by the wife’s counsel. In her subsequent report, after reading the material of Dr D, Ms C adjusted her views and, having regard to what Dr D has said, I can understand that change.
Dr D provided a report on each of the parties dated 9 December 2009. I have had regard to the material contained in both of those reports. The father has significant emotional and psychological demons to deal with. He has depression which, until recently, he was taking medication to treat. He has a continuing problem with marijuana to the extent that he took it on the day that he saw Dr D and does not resile from taking it to the present time, although he says he does not take it or is affected by it when he has the care of the child. He is quite labile in mood and I am satisfied that he can, at times, be aggressive, and Dr D concluded that his life appeared to be somewhat chaotic and that he was still having trouble controlling his anger.
The father has shown difficulty in managing the arrangements put in place through the Court. He was, at that time, abusing marijuana, drinking alcohol. Dr D summarised the following:-[6]
I say that he has the potential to make a significant contribution to the child, however his life is chaotic and disorganised. He is abusing drugs and perhaps alcohol. He is not living in an appropriate environment in a way in which to have regular contact with the child and he doesn’t appear to have much in the way of social support.
Dr D goes on to say:-[7]
We have to keep in mind that it is only fairly recently too that he suffered the subsequent serious accident, that he has had significant depression and a period in hospital and he really has a lot of work to do to establish his credibility as an effective parent.
[6] At paragraph 11 of his report filed on the 29 January 2010.
[7] Ibid.
In the second report[8] Dr D observed:
The father, on the other hand, I think is living in a relatively chaotic lifestyle at present. He has serious physical limitations, has problems with aggression and substance abuse and has been significantly depressed. One would consider the possibility that he may have a significant personality disorder, however I would prefer not to use that label at this juncture because one can understand the circumstance that led to his behaviour in the way that he does and there is a very real possibility that with support, long-term counselling and avoidance of drugs he can settle down and function much better.
I interpose here that this was the pathway the father has, to a limited degree, followed but not effectively.
[8] At paragraph 11 of the report in relation to the mother dated 9 December 2009.
Dr D goes on at page 14 of that report and says:-[9]
I’m afraid that contact with the father depends greatly upon the father taking his life in control, demonstrating his reliability, avoiding drugs and alcohol and being scrupulously reliable in terms of contact with the child, respectful of the mother and learning to control his aggression. Displays of aggression on his part are extremely destructive of the child.
[9] Ibid.
In terms of the primary considerations, I am satisfied that the child had a close relationship with both of her parents and that the child wishes to have more time with her father. The father has only seen the child, however, on one occasion since the orders of June 2010 and did not avail himself of all of the times he could have. It is not known how the child currently feels about her father, given the sporadic visits, however I infer that she would still want a relationship with him. The father admitted to having a number of car accidents whilst the child was a passenger in his vehicle and I note the reports of the mother’s fears of the father driving in a car with the child. This has, of course, been dealt with in terms of earlier orders.
These parties have no ability to communicate with each other and have little trust for one another or not at all. There is benefit in this child having a relationship with the father provided it is safe. The orders that the father seeks in terms of that contact would, in normal circumstances, be quite reasonable, however if I go to the second primary consideration, the risk to the child, in this matter there is a father who is still depressed, not taking medication, still using drugs, still using alcohol although, on his evidence, much less, and not undertaking counselling. He has, on his evidence, moved to a less chaotic lifestyle, although evidence of his employer, his mother and step-father, which may have assisted him, was not made available by him despite requests and despite having been given plenty of opportunities. The risk in allowing the child significant time with the father, particularly overnight care and time in Brisbane is significantly great bearing in mind those issues. The father is not psychologically careful with the child. There was evidence from him that he becomes emotional in discussions with the child. He does not see her when he’s able to. This, in itself, is troublesome. The father is not reliable in terms of court orders and was, even in evidence during this hearing, somewhat scathing about court orders
The father needs to cease his drug use, control his alcohol use and deal with his depression properly. I am satisfied that the child wants a relationship with her father provided it is happy and not sad. I note the comments of the Family Consultant, Ms C, with regard to the nature of the relationship and the evaluation of the relationship. In terms of the willingness and ability of each parent to facilitate time, the mother says she’s considered that she’s done all that she can do. I do not accept that. I think the mother has, from time to time, impeded the contact between the child and the father and for whatever reasons I am not confident that she will not continue to do so. However, the father has little respect for the mother and I note and, in that regard, adopt the submissions of the Independent Children’s Lawyer and the mother’s lawyer.
There is practical difficulty and expense in the child spending time with the father. If the father becomes drug free, treats his depression, manages his alcohol use and manages his anger then there should, in the future, be no reason why the child cannot spend more time with him and the orders should reflect that. However, at the present, to send the child down to an unknown with the father is not an attractive proposition, bearing in mind the history that I have outlined earlier. I am not sure that the father has the capacity to meet both the physical and emotional needs of the child in the present circumstances.
In terms of the father’s attitude to the child and to the responsibility of parenthood, the father’s contact has been spasmodic. He has not endeavoured to organise Christmas presents, birthday presents or to become involved in the child’s school. He seems to give his work higher priority than that of the child. In terms of family violence, the mother reported to Dr D there was no physical violence, but there was mental abuse and the father was quick to anger. That, it would appear, is not in issue.
In terms of avoiding proceedings, final orders have been made that the child live with the mother and that she have parental responsibility. There was no challenge to that at this hearing and it was not open to the father in any event. What it was about was the time that the father has with the child. I have adopted some of the submissions of the mother’s lawyer and adjusted Christmas accordingly. There ought to be an order that if the father makes arrangements but then does not attend, and does that three times in a row, then the orders would come to an end. I will also put in an order that there be such other times, as is agreed between the parties, the hope is that they could use those. The father has not met his child support obligations and that is troubling.
Having regard to all of the facts and circumstances in this case, having regard to the submissions by the Independent Children’s Lawyer and on behalf of the mother, which I generally adopt into these Reasons, I am satisfied that the orders I propose to make will be, in all of the circumstances, in the best interests of the child. I will also need to include in the orders an order that there be such other times as the parties agree. Having regard to his history in the light of the submissions set out in the case outline of the Independent Children’s Lawyer, I determine that, in the event the father fails to spend time with the child on three consecutive occasions, as provided for in these orders, the time with the child will cease.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of Benjamin J delivered on 4 November 2011.

Associate:

Date: 4 November 2011

[2011] FamCA 854

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Jurisdiction