Lay and Isbister

[2007] FamCA 46

FAMILY COURT OF AUSTRALIA

LAY & ISBISTER [2007] FamCA 46

FAMILY LAW - CHILDREN - Best interests
FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth)

APPLICANT: Mr Lay

RESPONDENT: Ms Isbister

FILE NUMBER: SYF 3022 of 2006

DATE DELIVERED: 8 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: O'Ryan J

HEARING DATE: 11 September 2006, 27 October 2006, 8 December 2006 and 5 February 2007

REPRESENTATION

APPLICANT: The father in person

COUNSEL FOR THE RESPONDENT: Mr Watkins

SOLICITOR FOR THE RESPONDENT: Blessington Judd

Orders

1. All previous parenting orders be discharged.

2. The Father Mr L and the Mother, Ms I, have equal shared parental responsibility for the child of the marriage, W.

3. The child live with her father:

   3.1Until 2 June 2007 each Saturday from 10.00 am to 6.00 pm.

   3.2Commencing on 9 June 2007 each weekend from 12 noon on Saturday until 12 noon on the following Sunday.

   3.3For a further period of four nights during December 2007 and January 2008.

   3.4Commencing on 1 February 2008 each alternate weekend from Friday at 5.00 pm until 6.00 pm on the following Sunday or 6.00 pm on the following Monday if the Monday is a public holiday.

   3.5Commencing in February 2008 in each alternate week on one afternoon from 2.30 pm until 6.30 pm.

   3.6For a further period of four nights during each of Easter, July and October 2008.

   3.7For a period of one week in December 2008.

   3.8For a period of one week in January 2009.

   3.9As from the commencement of the 2009 school year:

   3.9.1During each New South Wales gazetted school term each alternate weekend from after school on Friday to the commencement of school on the following Monday or the commencement of school on the following Tuesday in the event that the Monday is a public holiday.

   3.9.2During each New South Wales gazetted school term in addition to the period of residence in Order 3.9.1 in each alternate week from after school on Wednesday until the commencement of school on the following Thursday.

   3.9.3For one half of each New South Wales gazetted school holidays being the first half in odd numbered years and the second half in even numbered years unless the parties agree otherwise and for the purpose of this order the school holidays are deemed to commence on the day following the last day of the school term and conclude on the day preceding the resumption of the next school term.

   3.9.4In the event that the period of residence pursuant to Order 3.9.3 takes place in the second half of the school holidays then the period of residence pursuant to Order 3.9.1 shall take place on the second weekend after the commencement of the gazetted school term.

   3.9.5The periods of residence pursuant to Orders 3.9.1 and 3.9.2 are suspended during each New South Wales gazetted school holiday period.

   3.10At Christmas and notwithstanding any other order from 2.00 pm on 25 December 2007 until 2.00 pm on 26 December 2007 and each alternate year thereafter and from 2.00 pm on 24 December 2008 until 2.00 pm on 25 December 2008 and each alternate year thereafter.

   3.11On the weekend which includes Father’s Day and before the child commences to attend school from Friday at 5.00 pm until 6.00 pm on the following Sunday and after the child commences to attend school from the conclusion of school on Friday until the commencement of school on the following Monday.

   3.12On the child’s birthday:

   3.12.1If it falls on a day during the New South Wales gazetted school term from 3.00 pm until 6.00 pm or;

   3.12.2If it falls on a weekend and it does not coincide with a residence weekend of the Father pursuant to these orders then between 10.00 am and 3.00 pm provided that if a child’s birthday falls on a residence weekend of the Father pursuant to these orders then the child is to reside with the Mother between 10.00 am and 3.00 pm on that day.

   3.13   On the Father’s birthday:

   3.13.1If it falls on a day during the New South Wales gazetted school term from 3.00 pm until 6.00 pm or;

   3.13.2If it falls on a weekend and it does not coincide with a residence weekend of the Father pursuant to these orders then between 10.00 am and 3.00 pm provided that if the Mother’s birthday falls on a residence weekend of the Father pursuant to these orders then the child is to reside with the Mother between 10.00 am and 3.00 pm on that day.

4. Subject to Order 3 hereof the child otherwise reside with the Mother.

5. The Father’s periods of residence pursuant to Order 3 hereof be suspended on the weekend which includes Mother’s Day.

6. In the event that the child is not attending school when residence is to commence/conclude then the Mother’s period of residence shall commence by the Mother collecting the child from the Father’s place of residence at the times provided for by these orders and the Father’s period of residence shall commence by the Father collecting the child from the Mother’s place of residence at the times provided for by the orders.

7. Each of the Father and Mother shall:

   7.1Inform the other as soon as possible of any serious illness or injury suffered by the child while in their respective care.

   7.2Inform the other as soon as possible of any medical or dental treatment being administered to the child or any specialist appointments which the child is to attend.

   7.3Inform the other of any medication the child is to take while the child is in the care of the other parent.

   7.4Inform the other parent of any special dietary requirements the child may have.

   7.5Provide all authorities and directions necessary for all health professionals consulted by the child to provide to each of the Father and Mother all information and material held in relation to the child.

   7.6Provide all authorities and directions necessary for all schools attended by the child to provide to each of the Father and Mother all information and material held in relation to the child.

   7.7Inform the other and keep the other informed as to their current residential address and contact telephone number including mobile phone number.

   7.8In the event that either parent proposes to take the child outside the Sydney Metropolitan area then the party so proposing to take the child shall notify the other parent of their intention to do so and advise of the proposed destination not less than 48 hours prior to the proposed visit.

8. Each parent be at liberty to attend any schooling, sporting or religious activity in which the child is involved or participating and to which parents are also able to attend or participate.

9. Each of the parents are restrained from doing any act or thing or saying anything to or in the presence or hearing of the child which amounts to a denigration of the other parent or the other parent’s partner.

10. Each of the parents are restrained from doing any act or thing or saying anything to or in the presence or hearing of the child which promotes discussion or is likely to promote discussion of any issue in these proceedings.

11. Each parent shall as soon as practicable, and before May 2007, with the assistance of the Family Consultant make arrangements to attend and attend an assessment to be made by a consultant with Relationships Australia or such other organisation recommended by the Family Consultant with a view to the parties participating in a program recommended by that organisation.

12. The Mother have responsibility for the day to day care, welfare and development of the child during her periods of residence pursuant to these orders.

13. The Father have responsibility for the day to day care, welfare and development of the child during his periods of residence pursuant to these orders.

14. Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the child, W born in May 2003, on the airport watch list, also known as the PACE alert system, at all international points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the airport watch list pending further order of the Court. 

15. Each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, W born in May 2003, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the watch list until the court orders its removal or the written agreement of the parents.

16. Pursuant to s 65DA(2) Family Law Act1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3022 of 2006

Mr Lay

Applicant

And

Ms Isbister

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before me for hearing are applications for final parenting orders.  There were also proceedings for spouse maintenance however these were withdrawn on the last day of the hearing.  The proceedings were commenced by Application filed on 24 May 2006 on behalf of the father.  On 29 May 2006 a Response was filed on behalf of the mother.  On 30 August 2006 an Amended Response was filed on behalf of the Mother.

2. On 11 September 2006 by consent I made an order that the hearing be conducted pursuant to Practice Direction No. 2 of 2004.

3. The Father was born in January 1970 and the Mother was born in April 1971.  The parties were married in December 2001 and separated in December 2005.  There were two children of the marriage twins W and M born in May 2003.  The child M passed away two days after her birth.

4. The Father appeared before me without legal representation. 

5. I had the benefit of an Answer to Questionnaire completed by both parents. 

6. I also had the benefit of a Family Report and the Family Consultant made the following recommendations:

   29.     It is recommended that the parents have equal shared responsibility of W.

   30.     It is recommended that W continue to see her father for weekly daytime periods until she turns four years of age in May 2007.

   31.     It is recommended that, from June 2007, W sleep over at her father’s home one night per week.  It is suggested that the nanny attend overnight stays for the first two months or so, if she is able and willing.

   32.     It is recommended that, after W begins school, she have weekly overnight stays, or, alternatively, alternate weekend stays and an afternoon visit in the other week, with her father.

   33.     It is recommended that each parent be able to spend part of all special occasions with W.

   34.     It is recommended that, unless the parents otherwise agree, W not travel overseas with her mother for more than a three week period until the end of 2008 when a month-long trip could occur during the school holiday.

   35.     It is recommended that, during December 2007 and January 2008, W have stays of two nights’ duration with her father if he is available and seeks this.

   36.     It is recommended that W have a three night stay with her father during Easter and July 2008, a four night stay in October 2008, and week long holidays from December 2008.

   37.     It is recommended that, if the parenting relationship does not further improve so that communication and co-operation about W is easier, the father and the mother attend family counselling at Unifam, Centacare or Relationships Australia by May 2007, or just prior to W’s overnight stays with her father commencing.

   The Family Consultant said that the issue in dispute was when the child should commence regular overnight stays with her father.The Family Consultant was not cross examined.

7. Subject to two matters the Mother agreed with the recommendations of the Family Consultant.  The Mother did not agree to the child immediately spending time overnight with the Father although she was open to the idea occurring gradually provided the Father showed a commitment to it; that if the child got upset or was unable to sleep he dealt with it appropriately, and the child wanted to spend overnight with her father and she did not sleep with any other adults.

8. The Family Consultant said, and I accept, that:

   11.     The Parents have together experienced significant losses and traumas.  [W] was born at only 24 weeks gestation and is the twin of a baby who died a few days after birth. [W] spent considerable time in intensive care after her birth and was readmitted to intensive care on two subsequent occasions, once six months later and once in 2004.  Not surprisingly the marriage suffered considerable strain, and the separation, still quite recent, has been very upsetting to both parents, albeit in different ways.

   12.     [The father] is angry that [the mother] has not sought to reconcile and he is concerned that she is over-protective of [W] and minimising his ability to have a close relationship with her.  He described experiencing significant difficulties as a result of his own parents’ separation when he was eight years of age.

   13.     [The mother] is concerned that [W] experiences insecurity and distress when away from her overnight and that [the father] does not respond sensitively to this.  She is also concerned that [the father] does not behave co-operatively with her in relation to [W].

Parenting - relevant principles

1. Section 61C(1) in Pt VII of the Family Law Act 1975 (Cth) provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for the child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. The parents may exercise the responsibility either independently or jointly.

2. However, by s 61C(3) the joint parental responsibility is subject to any order I may make.  Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

3. Section 65D(1) of the Act provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think is proper.  Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with and includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child.  Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.

4. In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.

5. In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Act.  There are two primary considerations and 13 additional considerations.  I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.

6. As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents.  The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.

7. The 13 additional considerations include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. 

8. Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.

9. Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child.  It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B.  It is not a presumption about the amount of time a child spends with each parent.  The presumption does not apply in certain circumstances.

10. Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.  Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility.  The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing.  However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues.

11. Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence.  Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.  In summary, if the presumption does not apply, or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.

12. If I was satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent and if both conditions are satisfied then consider making an order for the child to spend equal time with each parent.  In determining the first matter namely whether it would be in the best interests of the child to spend equal time with each parent I have to apply s 60C and s 60B.  In determining the second matter namely whether it is reasonably practicable I am required to consider the matters in s 65DAA(5).

13. If I was satisfied that the presumption of equal shared parental responsibility applied but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent and if both conditions are satisfied then consider making an order for the child to spend substantial and significant time with each parent.  Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B   In determining the second matter namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5).  Section 65DAA(3) sets out what is meant by substantial and significant time.

1. For a discussion of the relevant provisions of Pt VII of the Family Law Act see Goode and Goode [2006] FamCA 1346.

Background

1. The child was born 16 weeks premature.  The child has a breathing difficulty and a chronic lung disease.  The Mother said the child also has Hemangioma in her left ear and stomach.  The Mother contended that every six months the child is taken to a Vascular and Respiratory Clinic and every year to a Growth and Development Clinic.

2. In October 2004 the child was hospitalised for about a month.  She developed a cough and ultimately suffered from influenza.

3. The Father contended that the Mother attempted to get pregnant a second time in October 2005 using the IVF method with the help of Dr H.  However, the Mother had a miscarriage in December 2005.

4. The parties separated under the one roof in December 2005.  At the time they were residing at C.

5. In January 2006 the Father commenced to reside in rented accommodation at A.  In February 2006 the Mother and the child commenced to reside with the Father at A.

6. The maternal grandparents have employed a live-in housekeeper/nanny since early 2006.  She has stayed at the Father’s home when the child has stayed overnight.  The Family Consultant said that both parents have utilised assistance from the nanny well and that her involvement appears to have assisted them to manage parenting arrangements during a difficult period.

7. In April 2006 the Mother and the child ceased living with the Father and commenced to reside with the child’s maternal grandparents at C.

8. Thereafter the Father visited the child at the home of the Mother’s parents on the weekend until the end of April 2006.

9. There was put into evidence a copy of Memorandum of Transfer obtained by the Father from the Land Titles Office that indicated that the Mother sold a property in April 2006 for a consideration of $1,250,000.

10. The proceedings were commenced when an Application was filed by the Father on 24 May 2006. 

11. The Mother seeks an order that the child be placed on the Airport Watch List and that she also be permitted to travel overseas with the child.  The Mother contended that she planned to travel to Singapore in May 2006.  She arrived at the International Airport on 26 May 2006 to fly to Singapore and then Indonesia and she found out for the first time that the child had been placed on the Watch List.  The Mother then made an urgent application which was listed on 1 June 2006 and she contended that she was forced to change her travel plans.  She was required as a condition to travelling overseas to provide a deposit of $10,000 into the trust account of a solicitor.

12. The Father moved to R in June/July 2006.  He works full time as an information technology specialist.

13. Orders were made on 12 July 2006 for the child to spend each Saturday from 12 noon until 5.00 pm with her father.  The Family Consultant said that the child has had some overnight stays with her father, a couple in July 2006 and a couple by agreement during October/November 2006.

14. In July 2006 the Father commenced to pay child support of $221 per week.  Prior to July 2006 he also made financial provision for the child.

15. In October 2006 the parents reached an agreement that the child would have regular overnight stays with her father on the proviso that the nanny would continue to attend and that the Father would contact the Mother, and/or return the child to her care, if the child was distressed and not able to be easily settled.  This agreement broke down as the Mother contended that on an overnight stay following their agreement, the child was not adequately settled and the Father failed to contact her.

16. No contact took place on 14 or 21 October 2006.  The Mother contended the child did not want to go on contact and was crying and upset. 

17. The hearing commenced before me on 26 October 2006. 

18. The Father did not have contact on Saturday 28 October 2006 and again, the Mother contended that the child did not want to go.

19. The Father did not have contact on 4 November 2006 and again, the Mother contended that the child did not want to go.

20. The Father was to spend time with the child on the weekend of 10 and 11 November 2006.  The Mother contended that the child did not want to go.  However, the Mother accompanied the Father and the child to a fun park between 11.00 am and 5.00 pm.

21. The child stayed overnight with the Father on the weekend of 17 and 18 November 2006.

22. The Father spent time with the child on 25 November 2006 between 1.00 pm and 6.00 pm.

23. On 8 December 2006 I made the following orders:

    1.      The further hearing is fixed for 5 February 2007 at 10.00 am.

    2.      Each of the Father and Mother file and serve by 4.00 pm on 31 January 2007 an affidavit in which they, briefly and concisely, provide evidence in support of why they each contend the orders sought as outlined to me today should be made in the best interests of their daughter.

    3. Pursuant to s 62G Family Law Act 1975 (Cth), the Family Consultant complete a Family Report.

    4.      The proceedings for spousal maintenance be fixed for final hearing on 5 February 2007.

    5.     In relation to the spousal maintenance proceedings each party is to provide to the other by 4.00 pm on 19 January 2007 discovery of all documents in his/her possession or control relating to their current financial circumstances such documents to include, amongst other things, a copy of bank statements, pay slips and so on.

24. The Father did not spend time with the child on 9, 16 and 23 December 2006.

25. The Father spent time with the child on 30 December 2006 between 12.30 pm and 5.30 pm.

26. The Father spent time with the child on 6, 13 and 20 January 2007 during daylight hours.

27. The Father spent time with the child between 12.30 pm on 27 January 2007 and 9.00 am 28 January 2007.  The Father contended that when he had time overnight with the child in January 2007 the child was very happy and interacted/communicated with the Father very closely.  On this occasion the child slept in the same bed as the Father and his new partner.  The child sleeps in the same bed as the Mother which the Mother said is a queen size bed and a double bed pushed together.  The Mother proposes that this continue until some time in 2008.  The Family Consultant said that the child used to share the bed with her parents prior to their separation and now sleeps with each of them when she is in their respective care.

28. The Mother resides at C.  It is a two storey house.  The Mother’s parents and brother live in the upper storey and the Mother and a housekeeper/babysitter live in the lower storey.  The child attends childcare three days a week on Monday, Wednesday and Friday between 9.00 am to 5.00 pm. 

29. The Father contended that the Mother has the qualifications for obtaining paid employment.  She worked as a manager for B Pty Ltd in Sydney.  The Father contended she has a Master of Business Administration Degree and also a Bachelor of Arts Degree in Interior Design from University.  As I have said, on the third day of the hearing the Mother withdrew her maintenance application.  In examination in chief the Mother said that she works two days a week as a make up artist.  In answer to some questions I asked the Mother said that she works at O on Saturday and Sunday of each alternate weekend from 9.30 am to 7.00 pm and on Monday and Friday and sometimes on one of either Tuesday, Wednesday or Thursday.

Statutory considerations

1. I propose to first deal with each of the two primary considerations in s 60CC and then the 13 additional considerations in that section having regard to the object and principles of Pt VII.  I will then consider whether the presumption of equal shared parental responsibility does not apply having regard to the matters in s 61DA(2) or is rebutted having regard to s 61DA(4).  If the presumption does apply and has not been rebutted then pursuant to s 65DAA I will consider whether the child is to spend equal time or substantial and significant time with each parent. 

Primary considerations

1. I am required to consider the benefits to the child of having a meaningful relationship with both of the parents.  This is an important matter. 

2. I have no doubt, and it is accepted by both parents, that there are significant benefits to the child having a meaningful relationship with both of the parents.

3. I am required to consider the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.  This matter is not relevant.

Secondary considerations

1. I am required to consider any views expressed by the child and any factors, such as the maturity or level of understanding of the child, that I think are relevant to the weight I should give to the views of the child.  Section 60CD sets out how I may inform myself of views expressed by a child.  However, I am not permitted to require a child to express views in relation to any matter: see s 60CE.

2. In my opinion, having regard to the age of the child, this matter is not material.

3. I am required to consider the nature of the relationship of the child with each of the parents and other persons including any grandparent or other relative of the child.

4. The Family Consultant said that the child is a delightful child who interacted warmly and happily with both her parents.  The child spoke mostly Indonesian to each of them.  The Family Consultant said that the child appeared well cared for and secure and she separated from each of her parents without any obvious distress.

5. In the Family Report the Family Consultant also said that the child is a delightful little girl with two parents who love her very much.  She appeared to have happy and affectionate relationships with both her parents.  Further, both parents appeared to have tried to protect her from exposure to arguments and conflicts and generally she seemed to move from one parent to the other without drama or distress.

6. I am satisfied that the child has a close and loving relationship with both parents.

7. I am required to consider the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.  In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child.  I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child.  I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain the child.  If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.  This is an important matter. 

8. The Family Consultant said that the Father has been hurt and upset when the child has been reluctant to go with him and he has at times expressed anger and frustration in front of her. Generally, however, the Father has attempted not to do anything to force or upset the child.

9. The Family Consultant said that the Mother presented as appropriately encouraging the development of a positive relationship between the child and her father.

10. I am satisfied that both parents have demonstrated a willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and the other parent. 

11. I am required to consider the likely effect of any changes in the circumstances of the child including the likely effect on the child of any separation from either parent or any other child or other person including any grandparent or other relative of the child, with whom the child has been living.

12. This is an important matter.  The Family Consultant said

    21.Due to her premature birth, [W] has a “corrected” age some months younger than her chronological age which means that some areas of her development are likely to be behind those of some of her peers.  She has also had respiratory problems and requires careful management when she contracts coughs and colds.

    …

    26.[W’s] developmental age is younger than her chronological age.  It is developmentally normal for preschool age children to demonstrate signs of anxiety upon separations from their main caregivers and this seems to be occurring during overnight stays away from her mother.  She has had changes of parents’ household and significant disruption this year which can add to children experiencing insecurity.

    27.Understandably, [the father] is worried that, if overnight stays do not occur immediately, his relationship with [W] will be diminished.  If, however, overnight stays begin before [W] is feeling confident and ready, she may begin to experience going with father as something negative or not totally enjoyable and this could lead to resistance to visits, relationship difficulties and parental conflict.

13. I am required to consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the right of the child to maintain personal relations and direct contact with both parents on a regular basis.  This is not an important matter.

14. I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of the child, including emotional and intellectual needs.  This is an important matter.

15. I am satisfied that both parents have the capacity to provide for the needs of the child, including emotional and intellectual needs. 

16. I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of the child and of either of the parents and any other characteristics of the child that I think are relevant.  This does not appear to be important.  The Mother said that she speaks to the child in Indonesian and in English and long term it would be her preference the child speaks both languages.  Both parents speak English and Indonesian.  I have no doubt that both parents will ensure that the child enjoys the culture and traditions of each parent.

17. I am required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.  In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child.  I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child.  I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain the child.  If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.

18. I am satisfied that both parents have an appropriate attitude to the child and to the responsibilities of parenthood. 

19. I am required to consider any family violence involving each child or a member of the child's family.  I am also required to consider any family violence order that applies to the child or a member of the child's family if the order is a final order or the making of the order was contested by a person.  The term "family violence order" is defined in s 4 of the Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence.  The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family.  In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of the child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1).  I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2).  These matters are not relevant.

20. I am required to consider 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. 

21. I am required to consider any other fact or circumstance that I think is relevant.  There is nothing I want to say about this consideration beyond what I have said elsewhere.

Conclusion – parenting

1. This is a difficult case because, in my view, the presumption of equal shared parental responsibility does apply and it has not been rebutted.  This means that I then have to consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

2. I have come to the conclusion that, at this stage, the child spending equal time with each of the parents would not be in the best interests of the child and also not be reasonably practicable.  The reasons briefly are as follows.  The Father does not seek a regime whereby the child would spend equal time with each parent.  In a document dated 8 December 2006 he said that he works Monday to Friday leaving home at 8.00 am and returning at 7.00 pm or 8.00 pm and the only time he has to have “contact” is on the weekend.  He said that he would seek overnight contact once every two or three weeks and also on another Saturday from the morning until late afternoon.

3. The Family Consultant did not recommend that the child spend equal time with each parent.  Independently of what the Father seeks and the Family Consultant recommended, I am of the view that given the problems the parents have experienced, the effect of the conflict between the parents, the age of the child, the development of the child, the need for the child to feel secure in both the care of the Mother and the Father and the need for the child to experience going with the Father as something positive and enjoyable there should be a graduated approach to the amount of time the child lives with the Father.

4. I then have to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.  For the reasons given above I am of the view that at this stage it would not be in the best interests of the child to spend substantial and significant time with each of the parents.  Of course this may all change as the child grows older.

5. I have come to the conclusion that I agree with what the Family Consultant recommended namely that the amount of time the child lives with the Father be increased over a period of time.  However, I do not agree with the regime proposed by either the Mother or the Family Consultant.  I am of the view that it is the best interests of the child that there be in effect four periods.  First, between the date of this judgment and mid 2007.  Second, between mid 2007 and February 2008.  Third during 2008.  Fourth, after the child commences school in 2009.  I am of the opinion that the child should have the opportunity to spend more time with her Father, with whom the child has a close and loving relationship and who can appropriately care for her, than contemplated by either the Mother or the Family Consultant.  During 2008 and before she commences at school the child should be spending significant periods of time with her father.  When the child commences school that may bring other issues for her and by then there should be an established and secure regime providing for when she lives with her father.

1. As I said in discussion, I agree with the recommendation that if the parenting relationship does not further improve so that communication and co-operation about the child is easier, the parents should attend family counselling at Unifam, Centacare or Relationships Australia by May 2007, or just prior to the child’s overnight stays with her father commencing.  However, in my view, given the issues that both parents have to address I am going to require them to attend such counselling as soon as can be arranged as I am concerned that their relationship may not improve without such assistance.  As I said in discussion, I hope that these parties will be able to communicate in relation to matters concerning their daughter whom they both love and cherish.  However, at this stage I have no doubt that the parties need some assistance. 

2. I am not going to make an order that the nanny attend overnight stays for the first two months or so and that will be a matter for agreement between the parents.  I accept that the Father perceives the nanny simply reports back to the Mother and it is not in the interests of the child that the Father’s care be subject to such scrutiny.  There may be occasions when the child is upset for any number of reasons when in the care of either parent and if this happens I would not want it to be the subject of criticism, unilateral decision or otherwise by the other parent unless it was a matter that was unusual or detrimental to the interests of the child.  Notwithstanding the problems the child has had she has to have the opportunity for a normal relationship with both parents.

3. I accept the recommendation that each parent be able to spend part of all special occasions with the child.

4. I accept the recommendation that unless the parents otherwise agree, the child not travel overseas with the Mother for more than a three week period until the end of 2008 when a month-long trip could occur during a school holiday.  In my view, as and from the beginning of 2009 both parents should have the opportunity to spend time overseas with the child during the school holidays.  I will make the order sought by the Mother in relation to the child being placed on the Watch List.  However, I am not going to make the order sought by the Mother in relation to her discretion to remove the child from the Watch List.  By the terms of s 65Y both parents are restrained from removing the child from Australia without the consent in writing of the other parent or an order of a court.  Thus, if and when one parent seeks to take the child overseas then the consent of the other parent will be required or an order of a court.

I certify that the preceding 85 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan

………………………………………………………..
Associate:  Date: 8 February 2007

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