Lewis and Hing

FAMILY COURT OF AUSTRALIA

LEWIS & HING

[2011] FamCA 30

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT:

Ms Lewis

RESPONDENT:

Mr Hing

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYF

3270

2005

DATE DELIVERED:

31 January 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Cohen

HEARING DATE:

7-8 October 2010

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling,

Legal Aid NSW

Orders

That the mother and father shall have equal shared parental responsibility for K born … May 2005.
That the said child shall reside with the mother and spend the following time with the father:-
(a)       When the father is not employed as a shift worker:
(i)during school term from 4.00pm on Friday to 5.00pm on Sunday or 5.00pm on Monday on a long weekend of each alternate weekend, except during the Little Athletics season if the child attends Little Athletics when the time shall commence at 8.00am on Saturday; and,
(ii)during school term on the Monday following each weekend when she does not spend time with the father from 4.00pm to 8.00pm.
(b)      When the father is employed as a shift worker:
(i)during school term from 4.00pm on Friday to 5.00pm Sunday or 5.00pm on Monday on a long weekend, except in the Little Athletics season if the child attends Little Athletics when time shall commence at 8.00am on Saturday, on three (3) weekends in every six (6) weeks during school term with the first cycle of six (6) weeks to commence on the first day of first term in each year and when school holidays intervene in a six (6) week cycle, that cycle is to continue in the next school term with each of the three (3) weekends in each six (6) weeks to be nominated by the father by email to the mother or otherwise in writing sent by him to the mother within 48 hours of the father’s roster being published in respect of any weekend he nominates provided that each such weekend shall not include the weekend which Mother’s Day falls or any weekend on which the mother’s birthday falls on a Friday, Saturday or Sunday, or a Monday on a long weekend.
(ii)during school term on the Friday prior to each weekend or the Monday or Tuesday following each weekend when the child does not spend time with the father from 4.00pm to 8.00pm provided the father nominates the day by email or otherwise in writing addressed to the mother sent by him not less than forty-eight (48) hours after father’s roster in respect of the day or days he nominates is published provided such day is not the mother’s birthday.
(c)(i)        On the father’s birthday and on Father’s Day when either falls on a weekend or his birthday falls on a public holiday on which the father will not otherwise pursuant to these orders be spending time with the child from 5.00pm on the eve of each such day to 5.00pm on the father’s birthday or Father’s Day provided that in each instance the father informs the mother by email or otherwise in writing sent by him not less than one (1) month prior to that day that he intends to spend time with the child on that day; and,
(ii)on the father’s birthday if it falls on an ordinary weekday from 4.00pm to 8.00pm provided the father notifies the mother by email or otherwise in writing sent by him that he intends to spend time with the child on that day not less than one month prior to his birthday.
(d)From 4.00pm on the day prior to Chinese New Year’s Day to 4.00pm on Chinese New Year’s Day unless Chinese New Year’s Day is on a Friday and in that instance in 2012 and thereafter from 4.00pm on the prior Thursday to 5.00pm on the following Sunday.
(e)      During school vacations:
(i)in each short vacation in 2011 on four (4) days and nights from 4.00pm on the last day of the school term to 5.00pm on the fifth day immediately thereafter.
(ii)in the Christmas school vacation 2011-12 on seven (7) days and nights from 4.00pm on the first day chosen by the father to 5.00pm on the eighth day immediately thereafter provided that the period chosen shall not commence prior to 2 January and end after the last Friday of the Christmas vacation period and the father gives the mother written notice of the period he chooses by email or otherwise in writing sent by him not less than two (2) months prior to the first day of that period; and,
(iii)in each of the three (3) other school vacations in 2012 and each year thereafter from 4.00pm on the last day of the school term to 5.00pm on the eighth day immediately thereafter; and,
(iv)in the Christmas school vacation in 2012-13 and each year thereafter from 4.00pm on 2 January to 5.00pm on 23 January.
(f)That the child is to spend from 4.00pm on the day before the mother’s birthday and before Mother’s Day to 9.00am on the day after the mother’s birthday and the day after Mother’s Day with the mother and if any period nominated by the father includes these periods pursuant to any other provision herein this provision shall prevail over the period chosen by the father.
(g)That for the purpose of the implementation of the orders herein the father shall in each cycle of six (6) periods of any length when he spends time with the child collect her from and deliver her to the mother’s home on the first five (5) such periods and on the sixth such period the mother shall deliver the child to and collect her from the father’s home.
That when the child is residing with or spending time with a parent the other parent shall not telephone her more than once on each weekend including long weekends and more than twice in each weekday period irrespective of its length with the exception that during the time the father spends with the child pursuant to order 2(b)(ii), and on his birthday and on Father’s Day and the time the mother spends with the child on the mother’s birthday and on Mother’s Day there shall be no telephone contact between the child and the parent not having her immediate care.
That the mother is hereby restrained from causing or permitting the child to use or be known or identified by the inclusion of the name Lewis in her names whether as a first name, middle name or surname and whether hyphenated or not and/or from causing or permitting the child to use or be known or identified by a surname other than Hing.
That the Australian Federal Police forthwith shall take all steps necessary to remove K born … May 2005 from the watch list kept at airports and other ports of entry to and exit from Australia.
That the mother and the father shall each notify the other by email or otherwise in writing of their current address, landline telephone number, mobile telephone number, email address, facsimile number and postal address and within 7 days of any change in any such details of the details of that change.
That the mother shall give the father no less than two (2) months notice by email or otherwise in writing of her intention to move the child’s home outside the Sydney Metropolitan Area and of the area to which she proposes to move it.
That each parent shall be entitled to remove the child temporarily from Australia during any period he or she is to spend with her pursuant to these orders provided that the parent who wishes to take the child overseas provides the other with a copy of their itinerary, copies of all air and sea voyage tickets and all overseas contact telephone numbers for the child and himself or herself not less than 1 month before the departure date.
That the mother and the father have equal shared parental responsibility for decisions affecting the long term care, welfare and development of the said child.
That during any period during which the child is in the principal care of a parent, in the event of the child being hospitalised or receiving medical attention, that parent shall notify the other as soon as practicable of the medical practitioner, medical centre or hospital involved and at that time provide details of the illness, injury, the treating doctor and the prognosis for and treatment of the child (if known).
That each parent shall ensure that the other is kept informed as soon as is reasonably practicable of:-
(a)any medical problems or illness suffered by the child whilst in his or her care; and,
(b)any medication that has been prescribed for the child or over the counter medication administered to the child whilst in his or her care.
That the Mother and Father consult in relation to the attendance of the child on any medical practitioner, dentist, optometrist, psychologist, counsellor, speech therapist or other therapist for the child and in the event that the child is referred to any such person:
(a)the parent obtaining the appointment shall inform the other parent by email or otherwise in writing as soon as practicable of the time and date of appointment; and,
(b)that parent shall when the initial appointment is made authorise the relevant person to discuss all matters relating to the child with the other parent; and,
(c)that parent shall do all acts and things necessary and shall ensure that the other parent is permitted and able to attend at such appointment and is provided with copies of any test results, letters of referral, reports and letters received from and by that person.
That the mother within fourteen (14) days of the date of these orders and at the time of the child’s subsequent enrolment at any school shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forwards directly to the father:-
(a)copies of all her school reports and merit cards; and,
(b)any written material pertaining to her academic and extra curricular activities; and,
(c)any notices of events that parents are invited to attend or participate in; and,
(d)copies of all order forms for school photographs of the child.
That both the mother and father may attend any events involving the child whether curricular or extra-curricular that parents are invited to such as special days, prize days, sports carnivals, concerts, parent teacher interviews and enrolment interviews.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3270 of 2005

MS LEWIS

Applicant

And

MR HING

Respondent

REASONS FOR JUDGMENT

These proceedings are to resolve disputes between the parents of K who is five and a half years old and was born in May 2005. She attended N Public School in 2010 where she was in kindergarten year. The parents and independent children’s lawyer agreed during the hearing that the parents should have equally shared parental responsibility. The principal aspect of the dispute is about overnight time. The parties agree that she should live with the mother for about 5 days in each seven during school term and during some of the school holidays.
The father has and wishes to retain his employment, which he has had since August 2005. It involves a work roster requiring him to be at work on five days each week, often including weekend days, for periods ranging from 6am to midnight. He wishes to have a stepped increase in time with the child which ultimately results in spending time with her on his Saturday and Sunday rostered days off when they are consecutive, from 4pm Friday to 3pm on Sunday, for half of each school holiday period in one block and on special days.
The mother opposes overnight contact between the child and the father unless the father has commenced to undertake a random drug and alcohol testing regime. She seeks that his contact with the child be limited to his weekend rostered days off on 3 weekends in each 6 week cycle with contact on the first of the father’s weekends off to be limited to 9am to 5pm on Sunday and on both the second and third weekends off to be from 11.30am to 5pm on Saturday and from 9am to 5pm on Sunday. This is the current arrangement. The mother said that she would allow additional contact on the father’s days off during school holidays by agreement, but did not suggest a regime.
The child has not spent overnight time with the father since she was about 3 weeks old. The dispute over time is complicated by the distance the parents live apart and the fact that the mother does not own a car or hold a driver’s licence. There are additional minor differences between the parents over changeover locations and birthday contact, as well as whether the child should remain on the Airport Watch List and a more significant dispute over the mother’s claim that the child’s surname should be Lewis-Hing rather than Hing. The independent children’s lawyer agrees with the mother on the issue of surname, but with the father on the other issues.
There is a family report which was made on 30 June 2009. It recommended that the regime, which was then contact with the father from 10am to 3pm on all eight of the father’s rostered days off in each four week cycle, be continued until December 2010. From then it recommended contact each second weekend from after school on Friday until school commences on Monday and for three hours after school on each other Friday. The Family Consultant reached this opinion in the context of her belief that the father was seeking this regime.
The parents are both in their mid-thirties. The father is of Chinese decent. He came here from China with his parents when he was seven years old. He lives with them in a two bedroom flat in Sydney’s southern suburbs. His father is quite ill. His illness may be terminal. He may have liver cancer and needs a liver transplant. During the hearing the father indicated no significant animosity toward the mother or her family. I did not see his parents but the mother seemed to show no animosity toward them and said that the child has told her she likes them. The mother said she would feel more comfortable if the father’s parents are at home if the child spends overnight with the father.
The mother lives with her mother, sister and mother’s partner in N, in northern Sydney. The mother and her family appear to be Australian of English or Irish background or the like. The mother is not in paid employment. The mother, her sister and especially the mother’s mother seem quite hostile to the father.
The mother would really like the child to have no contact with the father, irrespective of anything she has said to suggest the contrary. Her mother and sister appear to me to support her in this respect. I am convinced that the less restrictive stand the mother has taken in these proceedings has been taken for tactical reasons because she believes that she will not obtain orders which are more favourable to her and realises that if she would have attempted to deny contact between the child and the father, the chances of the father obtaining more contact with the child than she has asked for would be improved. It is not a coincidence that the Family Consultant, on pages 4 and 5 of her report, said: “[the mother] alternated from thinking [the child] should spend no time with [the father] to suggesting that any increase in the time be introduced slowly” or that, until the hearing, the mother sought sole parental responsibility. The mother told me that her preference would be to arrange for [the child] to be able to recognise her father from a photograph and have no other relationship with the father, but that she knows she could not achieve that “because of the law”.
The mother is quite controlling, manipulative and domineering, with a high level of passive aggression and the habit of portraying herself as an unfortunate but blameless victim. I do not find her or her sister and mother to be credible witnesses. The father is more credible but not wholly credible. He, too, is somewhat controlling. He is also rather inflexible and lacks insight. Both parties satisfied me that the parenting stances they have taken were taken to meet their own needs and convenience rather than the child’s welfare. Both seem quite insensitive to this. The father seems to be more able to distinguish the child’s needs from his own than the mother. He has adjusted better to the breakdown in the parental relationship.
A major difficulty in making the decisions necessary in these proceedings is one which is common in litigation in the Family Court of Australia when the principals are not legally represented; a lack of relevant useful information.
The parties commenced living together in 1997 when the mother moved into the home in the south of Sydney where the father then lived with his parents. In 2000, the mother and father moved out of the father’s parent’s home and commenced living together in the same area. They ceased living together when the child was 3 weeks old.
The incident which occurred at separation is not the subject of direct evidence from the mother. On the day in question there was a verbal conflict which arose, on the mother’s version, because the father did not trust the mother, and on the father’s version, because the mother was smoking in the child’s presence. His attitude was justifiably based on previous incidents where distrust was warranted. The mother left the house where the parties were living without taking the child. The mother has annexed transcripts of the telephone messages the father left her from 28 May to 1 June 2005. She asserts that the father “threw her out” of their home. The messages, especially the first, suggest a less simple scenario.
The mother commenced proceedings on 30 May 2005 at a Local Court. She obtained an ex parte recovery order on that day as well as an order that the child reside with her until further order. The child was handed to the mother that evening when the police visited the father to execute the warrant. The matter was adjourned to 3 June 2005. On that day consent orders transferring the matter to the Family Court, placing the child’s name on the “Airport Watch List” and providing that the child live with the mother until further orders were made. On 14 July 2005 the Family Court of Australia made consent interim orders for the child to live with the mother and for the father to have contact with her each Saturday for two hours provided that contact was to be supervised by the mother’s father at his home in Sydney’s south.
On 27 October 2005, I varied those orders to give the father contact twice each week for two and a half hours at a time. The mother was living on the Central Coast by this time. I ordered that changeovers alternate between a northern Sydney Railway Station and a southern Sydney Railway Station and that the father’s mother be present during contact rather than that there be supervision by the mother’s father at his home.
On 18 December 2005 I was informed that the parties had virtually reached agreement on final orders, a draft of which would be provided as soon as practicable. An unsigned document entitled “Minutes of Consent Orders” was filed on 22 September 2006 but no orders were made as a result. The minutes may have been drafted by the mother’s solicitor at the time. In the circumstances, the terms are largely irrelevant.
On 23 July 2008 the matter came before me. No attempt had been made by the parties to list the matter earlier. Because the minutes dated 22 September 2006 were on the file, it seemed that the matter had been settled or had settled down, because the minutes were in the form of final orders which extend beyond the Chinese New Year in 2011, at least. I altered the interim contact regime between the child and the father to four hours each Sunday provided the father’s mother was to be present, with the mother to deliver the child to the father at his home in southern Sydney and the father to return the child to the mother at a northern Sydney Railway Station. I also ordered each parent to undertake weekly drug testing for the commonly abused illicit drugs for a period of 6 weeks, with notice of the result to be provided to the other parent at the conclusion of the testing period.

The mother’s drug testing took place from 25 August 2008 to 9 October 2008. I do not know why it took her more than one month to have the first test. The inference is that, before this, she had reason to believe she might fail a test. The six she undertook were all clear, but the final test was on 9 October, 2 weeks after the penultimate test.
The father commenced testing pursuant to my order on 7 August 2008 and had 6 close to weekly tests up to 18 September 2008. One of those, the second, which was done on 14 August, was positive for cannabinoids.
The matter came before me next on 21 November 2008. I ordered the father to continue drug testing once each month until the matter would next be mentioned. He had already had a test on 10 November 2008 which was negative. After the November orders were made, he had monthly tests until 31 August 2009 except that he missed January and February. His excuse was that this time of the year is hectic for him and that the testing laboratories are closed in January, then he had kept putting it off.
On 21 November 2008, I altered the interim contact between the father and the child to his first two rostered days off in each seven day cycle. It was understood that contact would be for four hours on each contact day. It was to be unsupervised with changeovers to alternate between collection and return to a northern suburbs shopping centre and to the father’s parents’ home in southern Sydney.
A major aspect of the mother’s case to refuse the father overnight time with the child is that she does not trust him to abstain from alcohol and illicit drug use at times which will have an adverse impact on the care and protection he can give the child. She asserts he was a regular drug user when she was in the relationship with him and has since seen that he was unsteady on is feet, had “red puffy eyes” and “a silly grin”, inferring he was intoxicated by alcohol or drugs, during handovers. She also claims to have smelt marijuana in the child’s hair on her return from contact with her father. As the mother’s father or the father’s mother have always been required to be present during contact, one must ask why the mother is so trusting of the father’s mother who denies she has seen the father affected by drugs. The mother told me during an early hearing that she had seen the father looking drug affected when she came to collect and deliver the child and that the father’s mother was present.
The father denies these allegations and the inferences which arise from them. He admits illicit drug use while the parties were together, but says that he was no more indulgent in this respect than the mother.
Although the mother claims that the father was a much more frequent illicit drug user than she was while they lived together and that he used more “hard” drugs, in a document she annexed to her affidavit she says without indicating any greater fault in the father than herself “[the father] and I had been using drugs” (see paragraph 5 p. 5 of her Victims Impact Statement) and “I met [the father] on the Rave scene, both using party drugs. [The father] … introduced me to marijuana.” (see paragraph 6 p. 5 of the same statement). I shall assume that marijuana is less immediately dangerous than “party drugs” while at the same time recognising that long term and/or “excessive” marijuana use has very adverse effects on the user but, apart from the immediate danger of brain damage or death from party drugs, they can cause a user to do things which endanger himself and others.
The mother has proposed, if the father is to gain overnight contact with the child, that it should not commence unless he is required to undergo random once monthly drug testing on short notice and at times chosen by the independent children’s lawyer and has negative results for a year. The father’s stance is that negative drug testing for any period should not be a precondition for overnight contact but he consents to such testing for six months once overnight contact commences.
I have had ample opportunity to observe both parties when they gave evidence as well as while they conducted their cases in person. Notwithstanding the positive result, the failure to undertake tests in January and February 2009 and the weak excuse he gave, the father’s demeanour and general conduct in court gave no indication that the father is addicted to or is currently a regular and frequent abuser of alcohol or illicit drugs, including marijuana, or that he was using anything to steady himself and lower his stress levels during the hearing. He may use marijuana from time to time, like so many people of his age do, but at the hearing he conducted himself with a great deal of self-restraint and without the apparent undermining of his abilities which would ordinarily be associated with the use of alcohol or drugs to “calm his nerves” or over a long period. The mother gave me the same impression. I do not regard the father as being an unacceptable danger or risk to the child if he has her overnight and is not supervised or living with his parents. I regard him as no more of a risk to the child from illict drug or alcohol use than the mother is. She claims to have ceased using drugs, but her credit is poor. I shall not make any drug or alcohol testing regime a condition for overnight contact if I order that type of contact.
The specific orders the parties sought in their most up to date documents which, in both instances, are annexed to their affidavits, were in some respects modified during the course of the hearing. By the conclusion of the hearing few orders were agreed to. They do agree that the child should spend Chinese New Year each year and Fathers Day when he has a rostered day off on that day with the father. Each agrees that the child should spend each parent’s birthday with that parent and Mothers Day with the mother. Both also agree that, if the child stays overnight with the father, she should have her own separate bed. The mother presumably does not agree to overnight, as the father seeks, for Chinese New Year.
The effects of the orders the mother seeks which have not been specifically mentioned so far are:
a)changeovers are to be by delivery to the father on Saturdays when the child does Little Athletics from November to March inclusive, at 11.30am from the B Oval, otherwise she is to be delivered to the father at N Oval and to be returned to the mother at the father’s home in southern Sydney unless the mother cannot get a lift there and in that event to her at a northern suburbs Railway Station;
b)Christmas Eve and Christmas Day with the mother;
c)each parent is to be restrained from drinking more than two standard drinks and using illicit drugs 24 hours before and during the time the child is in his or her care;
d)communication between the child and each parent while she is in the other parent’s care to be unrestricted;
e)both parties undertake an anger management course; and,
f)That the child be known as K Lewis-Hing with or without the hyphen.
The father seeks orders to the following effect which are not consented to and which have not been mentioned or fully detailed above:
a)contact, from judgment, on each consecutive rostered days off falling on a weekend from 9am Saturday to midday Sunday until 31 March 2011;
b)9am on 4 January 2011 to 3pm on 6 January 2011;
c)Chinese New Year’s Eve from 10am to 4pm on Chinese New Year’s Day in 2011;
d)from 1 April 2011 to 30 September 2011 in each seven day period when his rostered days off are on Saturday and Sunday from 9am Saturday to 3pm Sunday;
e)May 2011, the child’s birthday, from 10am on the child’s birthday to 10am on the day after;
f)from 1 October 2011 during each subsequent school term from 4pm Friday to 5pm Sunday on each weekend when the father has consecutive rostered days off;
g)the final fortnight of 2011-12 Christmas school holidays from 10am on the first of the 14 days to 4pm on the final day;
h)half of all school holidays from the Easter holidays 2012;
i)if the father ceases shift work, each alternate weekend during school term between 4pm Friday and 5pm Sunday;
j)the mother is to deliver the child to the father at N Marina except on Saturdays when the child is doing Little Athletics when the mother is to deliver her to the father at 8.30am at the B Oval and the father is to return the child to the mother at his home in southern Sydney;
k)each parent to be restrained from using illicit drugs within 24 hours before and during periods when the child is cared for by him or her;
l) once the child reaches 8 years, one telephone call and one dinner between the father and the child in weeks when he has no other face-to-face contact with her;
m)no travel restrictions on the father or, alternatively, none provided he provides the mother with 60 days notice as well as an itinerary and copies of return tickets not less than 30 days before departure; and,
n)there should be no change of surname and a restraint on the mother using Lewis to identify the child.
The independent children’s lawyer has asked for all encompassing orders giving notice and details of illness, injury, hospitalisation, treating doctors, consultation with medical practitioners, dentists, psychologists, counsellors and the like, information sharing about schooling and school events with equal rights of attendance as well as addresses and contact information. The mother asks for these orders too. There is no reason to believe the father opposes them although similar orders might be more appropriate. Finally, the independent children’s lawyer requests an order restraining the mother from moving from the Sydney metropolitan area without written consent of the father.
Apart from the mother’s claim about the father’s drug and alcohol use, the mother relies on an allegation that the father has been violent to her. She engages in a wide ranging criticism of his character which can be fairly described as character assassination. She says she is afraid of the father because of his violence and fears the father will be violent to the child. She also says the child does not wish to see the father and is disturbed by seeing him. As I have said, she prefers that the child never see or have contact with the father, but has not asked for orders to that end because she believes she would be unsuccessful and, I think, believes that such an application would harm her quest to limit contact to the degree she has applied for. I am of the view that the application she has made does not, by comparison to a no contact application, help her overcome any disadvantage to her quest that knowledge of her real attitude to the father’s parental involvement with the child might bring her.
The father’s case is that he is a competent and dutiful father and that the child has a right, because it is in her best interests, to be closely attached to him, to be cared for by him and to have him involved in all aspects of her life. He is concerned that the mother is trying to distance the child from him, that the mother is not getting proper medical attention for her and has marginal and unjustified attitudes to the child’s diet and that the mother is verbally abusive to the child and to him in front of the child. He says the additional time he seeks with the child will help overcome the defects in the mother’s relevant behaviour. He says that the mother has been more violent to him than he has been towards her. The mother denies hitting the father but admits grabbing his arm twice.
The independent children’s lawyer’s case is really encapsulated by comments Mr Sperling, Legal Aid Counsel, made at the hearing. He said that the parents are looking backwards rather than forwards and that they are in habitual conflict and have no insight into the harm their conflict can potentially do to the child. It is not suggested that she is other than well adjusted at present.
The report by Ms S, the Family Consultant, of 30 June 2009 is of high value to the Court in making its decisions on the issues. Ms S was not required for cross-examination. I accept most of her observations and all of her record of what she was told by those she interviewed. The mother told her that the parents have been highly conflictual since their relationship began and the father was verbally and physically abusive to her. He would “harangue” her and “put her down”, had vindictively damaged some of her clothes and had thrown her out of the house more than once. She admitted she had hit the father and put this into context by commenting that they “bring out the worst in each other.” She admitted that both used speed, ecstasy and LSD on weekends and smoked marijuana during the week before and after work, but said she no longer uses drugs. Notwithstanding my lack of confidence in the mother’s evidence, I think that this description of the father’s attitude to her when they lived together is likely to be accurate. She was not as forthright or candid about her own behaviour.
The father told Ms S that his suspicions about the mother were caused by her threats to him and her untrustworthy conduct. He seems to have confirmed that his suspicions were an immediate cause of conflict but says the initiating factor was the mother’s threats and behaviour. He admitted that, before separation, each had struck the other in a manner which could fairly be regarded as violent. He also admitted he would not permit the mother to take the child when he “threw” her out of their home on the day of separation.
Although the father acknowledged to Ms S that the mother probably does fear him because of their history of violence, my impression of the mother on the occasions she appeared before me, including when she cross-examined him, is that she does not have any actual fear of him. The father confirmed the mother’s version of their drug use up to separation. He said he had given up all but marijuana after they separated. He no doubt realised, when he admitted that, that his positive marijuana use test in August 2008 made it impossible to credibly deny continuing to use marijuana. I think it is more probable than not that neither uses other illicit drugs anymore. I think the history the father gave Ms S is likely to be quite accurate. I do not regard it as necessary to impose a drug or alcohol ban or testing regime on either party as a condition of contact with the child.
It is significant that Ms S specifically mentioned that the child has Chinese features. She has “dark hair, brown skin and dark almond shaped eyes.” The mother is very fair skinned with what appeared to me to be naturally blond hair. Another characteristic of the child which Ms S stressed is that the child “seemed preoccupied with concern about her mother becoming “angry” with her if she [the child] saw her father.” Ms S recorded that when the child saw the father she was already anxious, but became more anxious and avoided him. She commenced to look for the mother and asked for her. She relaxed when the father left the room and told Ms S that he was kind and she liked spending time with him “but just not today.” She did not accept that the father was part of her family, explaining that he did not “live with us.” Her description of the mother confirms the father’s claims that the mother is verbally abusive to the child by describing her as “angry.” She was noticeably keen to “report” to her mother and maternal grandmother what had happened when she was seen with the father. Ms S said the mother is the child’s primary attachment figure. I accept this assessment. It is obviously the situation, one which to his credit, the father accepts.
Ms S said the mother appeared to have a genuine fear of the father. In reaching this conclusion, Ms S seems to have been influenced by a Victims Services Report which is not before the Court.
The mother made a Victims Support and Rehabilitation Act 1996 (NSW) claim against the father in 2008. Her statutory declaration and Victims Impact Statement are annexed to her affidavit. They are such one sided, transparently self-serving documents, so full of generality and insignificant incidents, non-sequiturs and irrelevancies that one is left to wonder how they have been of use to anyone who might have had to decide the degree of compensation, if any, she might have been entitled to. The evidence before me satisfies me of the falsity of many of the mother’s claims and inferences in the documents. The Victim Impact Statement is clearly made with an agenda in addition to the compensation claim. It is intended to assist the mother in the proceedings in this Court. Its first two sentences disclose this.
The next part of this statement is so bizarre it is difficult to believe a rational person could think she could rely on it. I do not believe a rational person could accept it. It was subjected to examination during the mother’s cross-examination. The “psychotherapist” who gave the ludicrous opinion of the father she relies on, is really a charlatan with no recognised formal training. He seems to have realised what the mother wished him to say. The mother said he had “spiritual” type qualifications, meaning, I assume, that he is a knowing fraud or is deluded by a belief that he is in contact with the spirit world or has god given extrasensory powers or something akin to them. The mother either gullibly believes this and is irrational or has cynically used his claimed opinion to serve her own ends. This raises real concern about the mother’s ability or willingness to make rational decisions which will advance the child’s welfare.
Fortunately, it is agreed that the parents should have equally shared parental responsibility. It is likely that the mother believes this quack who, although he had never met or spoken to the father, diagnosed him by being shown his photograph; i.e. by “studying” his “face reading”, as a passive aggressive sociopath, a duplicitous hypocrite, a control freak, a pathological liar, a manipulative, power hungry drama queen, as prone to using drugs and/or pushing and as a sneaky, cunning, conniving, scheming man who has “contempt and arrogance about him.” It certainly seems to suit her to believe him.
The balance of the impact statement, using the first seven descriptions the face reader used for the father’s diagnosed character, is an attempt by the mother to fit claimed experiences with the father into them. It is an attempt which proves her lack of balance, lack of judgement and tendency to be irrational and, to me as a layman, it makes her seem to be dissimulating normality.
If there is a grain of truth in what she says in this statement, it is generally so biased and contains so much half-truth and relevant omissions that one cannot come to any firm conclusion about the claims in it except that they cannot be relied on at all when assessing the father, but they are of much assistance in assessing the mother. I am of the same opinion about the statutory declaration. Both raise considerable concern that the mother will in future resort to quacks or irrational beliefs instead of properly qualified professionals if she has problems with the child.
In the face of these concerns and the failure to put the report which seems to have influenced Ms S into evidence, I cannot accept Ms S’s assessment that the mother is genuine in her claimed fear of the father. I shall refer to evidence in addition to what the parties have told Ms S about violence when considering family violence as required by s60CC of the Family Law Act. Despite Ms S’s view about the mother’s fear and her opinion, which I also do not accept, that the mother’s motivation for distancing the child from the father is to ensure the child’s safety and happiness, I accept Ms S’s conclusion that if the child thinks the mother will be upset by her spending time with the father it will made the child anxious while with the father.

Ms S has recommended that the parenting orders she understood the father sought should be made. In doing so, she made the convincing point that although she accepts that the child is anxious about spending time with the father, her anxiety is derived from her wish to meet the mother’s needs rather than any reaction to her experience of the father. She was assessed as having enjoyed the time she spent with the father.
Another opinion of Ms S relates to a characteristic of the parents which was, in hindsight, apparent from early in the time I was dealing with the matter. Ms S formed the opinion that the parents both had a strong wish to settle the matter and if given the opportunity would do so, especially if they understood what each other wanted from the proceedings in the long term. The matter took so long to be dealt with by the Court because, each time the parties appeared, the Court was told they were on the verge of settlement and needed only a little time to sort their remaining differences out. Time never resulted in this.
My ultimate view is that each parent did wish to settle at all relevant times, but only on his or her own terms. Additional time ensured each understood what the other wanted with the result that there would be no settlement. These parties are not prepared to compromise on matters which are important to them. They are entrenched in conflict and unlikely to improve even if they realise it would be in the child’s best interests to end their conflict. The mother’s motivation for agreeing to equal shared parental responsibility seems likely to be a combination of a belief that she would have been unlikely to be granted sole care, her use of it as a tactic to improve her prospects in her other parenting claims and her knowledge, as pointed out by Ms S, that the father has been in the habit of accepting most of the mother’s decisions about the child’s schooling and health care. As Ms S said, “it is likely to be some time before they are able to have a relationship where they can calmly discuss [the child’s] needs.” The evidence satisfies me that they rarely communicate and that the mother does not wish to speak to the father but does not have proper justification for that wish.
Although I am moved by Ms S’s recommendations for the child’s residency, it is of concern to me that although there appears to be discussion of some relevant matters in her report, her reasons for making her recommendations are not disclosed.
Part VII of the Family Law Act is a code for determining the children’s orders which are to be made when parents cannot agree on all the decisions necessary to raise their child properly. One must appreciate the objects of the Family Law Act in order to properly determine what parenting orders to make. Section 60B requires the Court to seek to ensure that children grow up with the benefit of both parents having a meaningful involvement in their lives so far as is consistent with their best interests and that children receive proper parenting which is adequate to help them achieve their full potential. The Court must ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. There is also a requirement to prevent physical and psychological harm and the like.
The basis for the objects of the Act are the principles that each child, unless it is in the child’s best interest to provide otherwise, ought to know and be cared for by both parents and has a right to spend time on a regular basis with, and communicate regularly with, not only both parents but others such as siblings and grandparents who are significant to them, and that parents should jointly share the duties and responsibilities of raising their children. Another principle is that children have a right to enjoy their culture. This includes the right to do so with others of the same culture. Finally, the Act imposes the principle that the parents should agree about the future parenting of their children.
Of the last mentioned principle, it is fair to say that the Court’s processes encourage agreement between parents. By the stage a judgment is being written after a highly contested hearing where the orders the parties seek differ greatly in effect and where the parties have been critical to the point of condemnation of one another’s character, parental ability and actual parenting, there is very little agreement between the parents and little likelihood of gaining agreement despite the Court’s unremitting efforts to encourage it.
The most fundamental section of the Act is s 60CA. It provides that in deciding whether or not to make a particular parenting order in relation to a child the consideration which must be paramount in the decision to be made is that of a child’s best interests. This does not mean other considerations such as the needs and wishes of the parents are to be ignored, or cannot make a difference. It means that there must be very compelling circumstances for them to make a difference.
Here, the parties have agreed to an order for equal shared parental responsibility so the rebuttable presumption to the effect that such parental responsibility best promotes a child’s welfare which is imposed by s 61DA of the Act when making parenting orders has not been rebutted and has been given full practical effect.
Because there will be a parenting order giving the parties equal shared parental responsibility, s 65DAA is given effect. It requires the Court to consider whether it would be in the best interests of the child and practical for her to spend equal time with each parent. If it is both, the Court is required to consider making an order for equal time with each parent.
If an order for equal time is not made, the Court must consider whether it would be in the child’s best interests to spend substantial and significant time with each parent and whether such an order is reasonably practicable. If it is, the Court must consider making an order which achieves this. The Act determines the meaning of “substantial and significant time”. Orders can only achieve that if they allow the child to spend weekends, holidays, weekdays and periods when the child is not on school holidays with each parent and also allow each to be involved in the child’s daily routine and to take part in special occasions and events which are significant to the child and allow the child to take part in events which are significant to each parent.
In deciding whether it is reasonably practical to spend either equal time or substantial and significant time, the Court is required to consider the distance between the homes or proposed homes of the parents, their capacity and future capacity to implement the arrangements involved in achieving equal or substantial and significant time, the parents’ ability to communicate and resolve problems which could arise in implementing the arrangements, the impact the arrangements are likely to have on the child and any other relevant matters.
Section 60CC prescribes the manner of determining what is in a child’s best interests. Before one can consider an equal time or substantial and significant time order, one must decide where the child’s best interests lie. It requires two types of consideration which the Court must undertake. There are two matters, called primary considerations in s 60CC(2), which are the most important considerations. There are 13 matters, called additional considerations, which are listed in s 60CC(3). I shall deal with the considerations required by s 60CC in the order in which they appear in that section of the Act. The primary considerations do not necessarily outweigh the additional considerations. If they did, there would be no point in providing for additional considerations.
The first primary consideration is the benefit to the child of having a meaningful relationship with both her parents. I do not regard it is possible to argue, on the evidence, that she would be better off to have less than a meaningful relationship with either parent; that is, meaningful to her. To ensure the time that the child spends with the father will result in a meaningful relationship with him, the closeness which ought to result from staying overnight with him must be promoted. There is something unnatural in a small child not spending overnight time with each of her parents. The negative message that the situation must give the child, if she does not spend nights with the father, is likely to further damage their relationship. If there is no overnight contact, the relationship will not develop as it should. The risk that it will lack meaning is increased.
The other primary consideration is the need to protect the child from physical and psychological harm caused by being exposed to and subjected to abuse, neglect and family violence. “Abuse” is defined by the Act to be limited to physical abuse and does not include psychological abuse.
Now that the parents live apart, there is virtually no prospect of incidents of violence occurring between them. There is no evidence which I accept of family violence in the father’s home, and no suggestion that the child has been abused by anyone. It is the mother’s case that because he was violent and abusive toward her and because he is prone to abuse drugs there is an unacceptable risk that the father will be violent to the child and or abuse and or neglect her. Although the father has admitted to having hit the mother, I am quite sure the mother has hit him too, as he has alleged. He has never shown a tendency to violence against the child. I am not only not satisfied on balance that he will show any, I am satisfied that any risk that he will harm her either physically or psychologically as a result of physical harm, abuse, family violence or neglect is such that the risk is so low as to be within acceptable limits. The same type of risk from the mother is somewhat irrelevant because she will, whatever orders are made, care for the child most of the time.
Psychological violence is much more prevalent and can be as serious as or more serious than physical violence. If “abuse”, as defined by the Act, had included behaviour which could cause a child emotional or psychological harm, I would include in this consideration the emotional harm which the mother’s self-indulgent and self-absorbed attitudes could impose on the child as well as the harm likely to be caused to the child by the adverse view the mother has of the father and her preparedness to disseminate it to the child. I must and shall consider the need to protect the child from the mother’s attitudes as an additional rather than primary consideration under s 61CC(3)(m), although, because the mother will spend such a preponderance of time caring for the child, there is not a lot the Court can do to prevent the child appreciating her mother’s relevant thoughts and feelings even if the mother does not express them directly to the child. The most effective thing the Court can do to overcome this problem is to give the child as much opportunity as is practicable to experience the father for herself. If her experience is good, the child is likely to realise that her mother’s attitudes differ from the child’s experience.
The first additional matter which by the Act is to be considered is the views, if any, the child has expressed and any factors relevant to the weight these should be given. The only objective evidence of the child’s expressed views is to the effect that the child would like to spend time with the father and perceives him as being “kind”. This view should be given much weight.
The mother says that the child frequently or usually expresses her wish not to spend time with the father or says that she does not enjoy her time with him. The mother’s mother confirmed this. The father confirms that the child is often initially unhappy when she spends time with him but that she usually settles and enjoys herself.
The father’s behaviour is not the reason the child is anxious when she first sees the father. Ms S infers that the mother’s behaviour and attitudes are the cause of the child’s discomfort when with the father. I do not accept that it is the mother’s fears which are at the root of her behaviour and attitudes. I have little doubt that it is her animosity towards the father which is the source of her behaviour and other attitudes which convey to the child that, to keep her happy, the child should distance herself from and reject the father, especially while the mother is in a position to observe the child’s behaviour toward the father. The Court must ensure that the mother’s efforts to distance the child from the father will not succeed, especially in the long term. The best way to do that is to increase the child’s time with the father so the child can see what he is really like and realise that the mother cannot dictate to the child what her feelings about the father should be.
The nature of the child’s relationship with the parents and other significant people must be taken into account. The child is probably most attached to her mother because the mother has been her primary carer all her life. Her attachment to the mother is, because of the mother’s animosity toward the father, an unhealthy one in which the mother is an impediment to the child forming a close, comfortable and healthy attachment to the father. She does not recognise the father as part of her family because “he does not live with us”. The best cure for this problem is to have her live with him more.
Because the mother lives with her mother and her mother’s de facto husband, it is likely that the child has a good and close relationship with them. It will not be damaged by the limited increase in time the child will be able to spend with the father if the orders the father seeks are made. I know nothing about the maternal grandfather except that he lives much closer to the father than to the mother and that the mother has had a poor relationship with him at times.
I know little about the father’s family except that he lives with his father and mother, that his father is very ill and that at times and relatively recently, the father’s brothers have lived in the same house as the father and his parents. It is likely, because the father’s mother has been present for most of the time the father has had contact with the child, that the child has some attachment to her. She seems to love the child. I accept the father’s evidence that the child is fond of his parents. The mother would prefer the father’s parents to be present when the father has contact with the child, especially if it is overnight. It would probably be in the child’s best interests that the child relationship with her paternal close relatives is improved by having more contact with the father. The father’s parents, especially his mother, must have been seen by the mother to have behaved responsibly in the child’s interests. His mother has dutifully accompanied the father during contact and both the father’s parents have earlier accepted the mother into their home despite its modest size.
In my assessment, the father is willing and able to facilitate and encourage a close and continuing relationship between the child and the mother. The mother is unwilling to do the same for the relationship between the child and the father and as a result, although really able to do so, must be regarded as unable to do so because of the poor prospects that her attitude will change for the better.
The father is insufficiently committed to improving his relationship with the child. He ought to spend more time with her than he asks for. He does not ask for more time than that because he places a higher priority on his job than on improving his relationship with his daughter.
The most important likely or possible effect of a change in the child’s circumstances by a greater degree of separation from the mother is that the child’s relationship with the father and his parents will improve and she will cease to be as anxious as she is about contact with the father. Any additional time she spends with the father will not be enough, because of the orders he seeks, to undermine the child’s relationship with the mother and her close family, especially her grandmother, her grandmother’s de facto husband and the mother’s sister. Because of the maternal grandmother’s animosity toward the father it will be in the child’s interest to restrict her time with the child as much as is practical.
The parties live within the boundaries of Sydney but a considerable distance apart. The problem of distance is exacerbated by the mother not being a driver. N is about 50 kilometres north of the GPO and about 60 minutes to Central Station by rail. The father’s home is about 20 kilometres south west of the GPO and 20 to 30 minutes by rail from Central Station. If the child cannot sleep at the father’s home overnight during school term she will have to make 4 long trips taking considerable time travelling between the parents’ homes on each weekend when she has contact with the father. On the current delivery and collection arrangements, the father must take a return trip to N or B from his home which is about 70 kilometres each way by the shortest route and the mother must travel the same distance to collect the child from the father’s home on both evenings; that is, for the child, the mother and the father about 280 kilometres of travel on contact weekends. The obligation on all 3 would be reduced by half the travel distance and time if overnight weekend contact is introduced. The expense or difficulty for the parents will be reduced by it as will the stress of travel on the child. With decreased travel stress on the child, her ability to enjoy her time with the father is likely to increase and improve her personal relations with the father. As she is less likely to be tired by weekend travel, she is likely to be able to enjoy a better relationship with the mother too.
Usually the mother can get a lift when she must go to the father’s home. When she cannot, the practical difficulty for her and the child is increased considerably when she transports the child on both Saturday and Sunday evenings.
The parties both lack capacity to meet the child’s emotional needs. The father demonstrates this by his unenthusiastic approach to increasing his time with the child to an extent which will ensure it is substantial and significant within the meaning of that phrase in s 65DAA as defined in s 65DAA(3). The time he seeks with the child is less than substantial and significant. He is lax in his attitude to telephone and other electronic contact. One phone call a week in weeks when he has no other contact with her apart from a dinner when both of these types of contact do not commence until the child reaches 8 years of age is insufficient. Children of 6 years are usually willing and able to speak to their parents by telephone for a short time and are bound to benefit from speaking to their absent parent much more frequently than once a fortnight if there is no substantial reason why they should not do so.
The mother’s inability to cater for the child’s emotional needs is clearly stated in the family report. Her oral evidence was no more illustrative of this inability than when she said her real wish is to have the child’s relationship with the father limited to being able to recognise his photograph.
Her appalling attitude is also demonstrated by her Victim Impact Statement and the bizarrely illogical and exaggerated criticism of the father in it. An illustration of this is the step she irrationally took which is referred to on page 5, paragraph 6 of this statement. Her evidence is that an incident occurred on 29 May 2005 when the parties separated. Police records indicate she is referring to the 28 May 2005 and 30 May 2005. She deduced that the father would be so adversely affected by drugs while caring for the child that he would not feed her properly or see to her other needs and her safety. She called the police and requested they check on the father. She made this deduction because he had taken drugs while the parties had been living together, as had she. Her logic and judgment were quite distorted. She had asked the police to “do a welfare check on [the child]” because, when the father telephoned the mother’s sister’s home on the day in question, he “refused to say” how the child was doing. The mother said this made her concerned that the father “was not feeding [the child] enough formula and would be too drugged out to wake up when she cried”. She telephoned the police who telephoned the father. The mother regards her fears as being confirmed by the father’s failure to answer the telephone because he was asleep when the call was made. She has completely ignored the fact that the police eventually saw the father and the child at the police station on 28 May 2005 as a result of a further call to him and at his home on 30 May 2005. There is no evidence to suggest anything was amiss. The evidence proves the contrary.

In evidence is Exhibit “N”. It is the New South Wales Police response to a subpoena to produce all “documents including the criminal and police records, COPS records, notebooks, records, witness statements and police briefs in respect of” the mother and father. The only incidents occurring on or near any 29 May in any year up to 10 December 2008 when the police sent their documents and records to the Court are for 28 May 2005 and 30 May 2005. Nevertheless, the police may have telephoned the father on 29 May 2005 without recording the fact because it was not sufficiently significant to them. The records for both 28 and 30 May relate to the incident when the father is alleged by the mother to have forced the mother out of the parties’ home while refusing to allow her to take the child. This is the incident which she says put her in fear of the father. The police record of this incident shows the mother to have fabricated a false case for the purpose of her victim’s compensation claim and her case before me. The police record made on 28 May 2005 makes important points, each of which I note with comments where appropriate:
a)The initial argument arose because the mother was smoking in the child’s presence.
b)The mother left and went to the local police station because she wanted advice. – She told me she was forced to leave and suggested she was not permitted to take the child. The father admitted this, but the story contained in the mother’s Victim Impact Statement on page 5 is more complicated. The mother left and returned a few times. Eventually, she decided to leave and not take the child. She even telephoned a friend after she had finally left. The friend had lent the parties a cot for the child. The mother phoned her to ask the friend if the father could keep the cot, confirming that she had decided that the child could remain with the father.
c)The mother told the police she had no fears for herself and her daughter. – Her case before me is that much had occurred before that time to generate her fear for her and the child welfare at the hands of the father.
d)The mother intended to stay with friends. – The mother’s case before me is that she was not permitted to return despite attempting to.
e)The mother responded, when the police advised that both parents should get counselling, that it would not help because the father did not trust her as she had lied to him in the past. – Her case is that she had not, but that he was unreasonably controlling and paranoid in not accepting what she told him.
f)At 5.00pm on 28 May 2005 the father visited the Police Station with the child who looked to be “in good care”. The police held no fears for her. The police detected “no offences”. – The father must have been seen to be normal rather than so affected by drugs that he could not care for the child.
g)The police suggested counselling for both parents to the father who agreed with the idea. – Compromise seems to have been more on the father’s agenda than the mother’s.
h)The police formed the view that the mother instigated the incident. Having seen and heard both parents in Court, it is easy for me to understand why the police in effect regarded the mother as more aggressive, combative and volatile. That is the impression the parents left me with.
The records of the police for 30 May 2005 include their observations when they executed the recovery order made that day at the father’s home. Their experience of the father is that he was “very cooperative and appeared to have the child’s welfare as his priority” and “the child appeared to be well cared for in the care of [the father] and there were no signs of neglect or malnutrition”. The mother’s claim about the 29 May could be about either the incident when the police recovered the child on 30 May or that which took place on 28 May or about an intervening telephone call on the 29 May. In the victim impact statement she simply chose to ignore the fact that the police saw both the child and the father on 28 and 30 May and chose to regard one failure to answer the telephone as proof of something which she ought to have know is quite false; that he was neglecting the child because he was taking illicit drugs. If the day the mother is referring to was 29 May, the recorded messages the father left the mother on that day are annexed to her affidavit. They clearly demonstrate that he telephoned her 5 times that day between 9.35am and 9.02 pm on fairly regular intervals and expressed himself clearly and concisely, using good syntax in each message.
The mother cannot distinguish her own anxiety driven fears from reality or she knowingly lied about this incident. Her inability to provide for the child’s emotional welfare is manifest when either of these possibilities and her wish to end the child’s contact with the father are considered together.
I know little about the parties’ respective attitudes to education and the child’s intellectual development. Each appears to be reasonably well educated and about equally able to meet the child’s educational and intellectual needs. I do not know enough about any other person of significance to the child to be able to comment about their ability to meet the child’s needs.
The father has regular long term and relatively skilled employment. The mother is unemployed. The father pays child support. It is not suggested that he has ever failed in his obligations in this respect. Both parties are probably able to meet the child’s day-to-day needs other than her medical needs.
The mother claims the child has allergies to certain every day foods. She is treating these in a manner which she has formulated. The father is dubious about allergies and, if she has them, about the mother’s treatment. Given the mother’s reliance on the photo enabled analysis of the father’s character by a quack, I regard his concern as rational and justified. Despite this, he has done nothing to get proper medical advice about the child, so I do not regard him as significantly more capable of providing for the child’s medical needs than the mother. I regard orders like those proposed by the independent children’s lawyer as most suited to protecting the child’s welfare in relation to illness in the light of the parents’ equally shared parental responsibility.
K is five and a half and there is nothing to suggest she is more or less mature than usual for her age. That she is a girl seems to me to be of little relevance to the issues at hand. That she is equally Chinese as she is Western European / Australian is of significance. She will have ample opportunity to learn and enjoy the lifestyle, culture and traditions of her mother irrespective of the orders I might make because she will continue to spend most of her time with the mother. She does not spend enough time to learn and enjoy the father’s lifestyle, culture and traditions as she should if her welfare is to be optimally advanced. I can take judicial notice that, in many aspects, the Chinese lifestyle, culture and traditions differ greatly from those of the West. Because of her looks alone, it could be harmful to her if she does not know and cannot feel proud of and comfortable with the lifestyle, culture and traditions of her paternal family. The most I can do to ensure this will occur is to increase the time she spends with the father to the greatest extent I can, bearing in mind the limits imposed by the father’s modest claim for increased contact.
I have canvassed the attitudes of both parents to the child as well as the parental responsibility demonstrated by both parents in what I have already said. There is nothing of substance I can add except to say that when their attitudes are distilled down to the obligations of day-to-day care, the mother has taken on the responsibilities of parenting to a much greater extent than the father but, because of her gross deficiencies in catering for the child’s emotional needs, it cannot be said that she is a responsible parent. I class her as so irresponsible and self-indulgent to the child’s likely detriment that lessening her time with the child is highly desirable if the child’s welfare is to be advanced.
Despite the deficits of the father as a parent, I regard him as a more responsible parent than the mother. In view of the police reports that I have referred to, it is a pity he does not seek to spend more time than he does with the child. He is capable of caring for her properly and if he spent more time with her it would be a better foil for the adverse influence of the mother.
Family violence by the father is relied on strongly by the mother. I do not believe her version of any incident she relied on which is denied by the father. Her level of fabrication and exaggeration is well established. Exhibit “N” appears to show that it is the mother who is more violent to the father than the father to the mother. She is not very violent and I am inclined to regard both parents as about equally violent, but to a very modest degree. The father admits to hitting the mother but claims he was no worse in that respect than the mother. On 7 June 2008, during an argument, the mother grabbed the father by the arm twice without causing any injury to prevent him from walking away from her during the argument. Among the other things this demonstrates her lack of fear of him. The police reported that before February 2005 the mother had thrown household objects when she became angry, but not at the father. The parents seem to have had numerous loud arguments during their cohabitation, but these did not often escalate to physical violence. More than once they were over the mother smoking when she was pregnant. There has been no violence between the parties in recent years and I do not expect any violence between them in future. There is no evidence to suggest any violent incident has occurred in the child’s presence since she has become old enough to appreciate what it might be.
In the only instance when family violence orders were made, they were against the mother. One was taken out by the police on the father’s complaint because he feared the mother might assault him by throwing things at him although she had not, until it was taken out, done so. It lasted from 10 March 2005 to 10 March 2006. The other was taken out by the police against the mother but not proceeded with after the mother made an undertaking without admissions as a result of the incident when the mother grabbed the father’s arm.
I have not relied on any more allegations by the father that the mother is violent or referred to my assessment of the mother’s mother or mother’s sister in any detail, which in each case is adverse to the mother’s case, because, irrespective of the outcome, the mother will have such a preponderance of the child’s care that these matters do not seem to me to be sufficiently relevant.
In children’s proceedings, it is nearly always preferable to make orders which are regarded as those least likely to lead to the institution of further proceedings between the parents over their children. This case is no exception. In the face of little freedom of choice because of the stance the father has taken, I shall endeavour to make such orders.
In considering the matters which might affect the child’s welfare pursuant to s 60CC, I have dealt with all the facts and circumstances which could make a difference. Although there are other facts and circumstances which I have also considered to decide their relevance, there are none which I have not mentioned which alone or in combination with any other matters could be regarded as relevant. Overall, the inevitable conclusion to be reached is that the father should have more time with the child if her best interests are to be promoted. I feel he poses no danger or risk to her which is at a level which is not acceptable if he has her overnight for short or long periods.
The prospect of equal time with the father should be rejected. One reason is that neither party seeks it. Another is that the child attends school in the north of Sydney so it would not be reasonably practicable to live half the time, which must necessarily include school days, in Sydney’s south. It is also not practicable and not in the child’s best interests because the father lives with his parents in a two bedroom flat. This is satisfactory for overnight stays on weekend and school holidays, but not as a permanent more expansive arrangement. The child will not have her own room or a room which she shares with siblings. A bed in her father’s room or in the lounge room is the best which the father is offering at present. In the more distant future he is likely to obtain his own home and a partner and, therefore, better accommodation for the child.
The situation applies in much the same way to the consideration of whether the child should spend substantial and significant time with each parent. It, too, is not sought by either party and not reasonably practicable and not in her best interests because of the distance the father lives from the child’s school and the limited accommodation the father is now offering. Travel to and from school while living with the father in such cramped and limited accommodation is likely to place an undue physical and mental burden on the child in the face of the mother’s opposition to contact. The child’s appreciation of her mother’s resentment of her time with the father and the likely attempts by the mother to influence the child against the father by reliance on these problems are likely to be very disturbing to the child.
Of course, the parents do not want an equal or substantial and significant time sharing arrangement so are individually most unlikely to implement any such orders as I might make. The result is likely to be a return to litigation over the child’s residence. There is a high prospect that the father will fail to keep arrangements based on orders giving him more time than he wants. He will blame his job obligations. The mother is then highly likely to use these failures to justify restricting his time with the child to the minimum she feels she can successfully justify. It is more than a possibility that she will use broken appointments for the father to spend time with the child to stop all contact between them, much to the child’s disadvantage.
The orders which ought to be made should be clear, because the parties barely communicate and find it difficult to be civil to one another. They habitually claim to wish to compromise with the other, but so far as I can tell, rarely do. The practical problems arising from the father’s rotational shift work will not, in my opinion, be overcome by the orders the father seeks.
I conclude that I should make orders which give the father the extent of contact he seeks because that is the most contact with him I can give the child in all the circumstances. That is the level of contact which will promote the child’s best interests to the greatest extent.
I think that it is in the child’s best interest to commence the ultimate regime for the time she will spend with the father as soon as possible. A very slight reduction in the eventual level of contact she will have with the father will be sufficient to get her used to overnight and prolonged holiday contact with him at her age.
I am quite satisfied that if the father does not work shift work he should spend time with the child during school term on each alternate weekend from 4pm on Friday to 5pm on Sunday or on long weekends to 4pm Monday. I am equally satisfied that his quest to have an evening meal with the child during the week near the weekend in school term when he does not spend time with the child is an idea which, if implemented, will advance her welfare. It seems to me that Friday or Monday or Tuesday after a long weekend evenings from 5.00pm to 7.30pm is a suitable time. He can take her for a meal at a restaurant if he wishes, but I can see no reason to restrict him to this. He should be able to do what he and the child wish in the time available. The child will probably become hungry, so he will need to provide a meal for her.
The current situation the father is in is that he works shifts for which his roster is published in cycles of 6 weeks. He gets 2 days off each week and, usually on at least two weekends in six he gets Saturdays and Sundays off at one time. Generally, if he gets Saturday but not Sundays off, he gets Friday off. If he gets Sunday off but not Saturday he will usually get Monday off. He is usually given sufficient notice of his roster to be able to give the mother at least 3 weeks notice of the earliest weekend in a cycle that he can take off.
I think it is appropriate to allow the father to chose his weekend and other week times with the child and notify the mother of his choice within 48 hours of the publication of his roster. He has some control of his rostered days off but if he cannot, from time to time, organise his time so he can be sure to claim contact on his rostered weekends off, and give the notice to the mother which I regard as reasonable notice, it will be good for the child to be cared for by the paternal grandmother and, hopefully, the paternal grandfather. If the father can get all or most of a long weekend off he can choose it and this, too, will be good for the child.
There are usually about nine weeks in each school term. It is appropriate where the father’s six week cycles commence during a term but the term ends before the next six weeks is up for the second six week cycle to be regarded as part finished at the end of the term and to be completed at the beginning of the next term. The father will simply have to give notice of the weeks in the part of this cycle which has been published not less than 48 hours after it is published. This will give the mother at least three weeks notice of the time which the father is to have with the child. Notice should be by email or, if the mother does not have an email address, in writing which can be delivered to her at changeovers or by post.
The child enjoys Little Athletics. She chose this endeavour after having been given a choice of more commonly chosen extra curricular activities. Contact with the father should not be an impediment to her continuing involvement with it. She spends Saturday from 8.30am to lunch time at B Oval during the warmer months. I think it will be good for her if the father takes her there so it becomes part of the time she spends with him. The most practical way of achieving this situation is, on contact weekends during the Little Athletics season, for so long as the child wishes to continue this pastime, to postpone weekend contact with the father to 8.00am on Saturday. This way he can collect the child from the mother’s home and get her to the oval at B by 8.30am.
There is no reason why the mother cannot attend Little Athletics on the father’s weekends with the child just as there is no reason why the father cannot attend the child’s Little Athletics on the Saturdays when the mother has her immediate care. One day the parties might even use an occasion when they are both there to cheer their daughter on to speak civilly to one another and begin the process of learning to communicate properly with one another and of freeing themselves and the child from the straight jacket of children’s orders so they can make arrangements which suit them and the child at the time and which involve the give and take necessary for raising their daughter to have the ability to optimally use her opportunities in life. Otherwise, the father’s weekends with the child in school term should be from 4pm Friday to 5pm Sunday or, on a long weekend, 5pm on Monday.
Nevertheless, the father should not be able to choose a day, weekend or long weekend when the mother’s birthday falls on it. Nor should he be able to choose the weekend on which Mother’s Day falls. He should be able to choose days or weekends including long weekends on which his birthday and Father’s Day fall. I shall make specific provision for Father’s Day and the father’s birthday. Those orders should ensure they spend from 4pm to 7.30pm with parent when he or she has a birthday on a school term weekday.

I shall not make a specific order for the child’s birthday. It is too much for a child to have to end one birthday celebration with a parent for the sake of travelling to a celebration arranged by the other parent. Most children will have gorged themselves with sweets and cakes at the first, so will not be able to enjoy a second celebration on the same day. There is a good reason to permit the child to spend her birthday with the parent with whom the chances governed by the calendar and the father’s rostered days off dictate. The parents may be motivated to commence cooperation so they can be assured of seeing the child on her birthday. A joint celebration should be possible and may be the eventual result; one which is bound to assist the child, because she will realise that her mother and father can both agree that she should have a happy day with the other parent; a realisation, if it is enabled by the parents, which is bound to promote the child’s emotional health.
The mother agrees that the father should spend Chinese New Year with the child but he wants to have her from 10am the day before to 4pm on Chinese New Year’s day. However, I regard collection at 4.00pm to be appropriate especially because on many occasions the day before this festival will be a school day. There is no reason why she should not miss school on Chinese New Year’s Day. If Chinese New Year day is on a Friday the father should have the child from the Thursday to Sunday. This is, on my understanding, a culturally important Chinese festival. It should be seen by someone like the child to be of great significance to her and she should be entitled to take part in the spirit of the celebration for as long as it lasts. The father seems to feel that what he seeks on the day in question is appropriate and I can find no reason why the child should not be put in a situation where she can enjoy it when her father is available to be with her from 2012 onward. Before that, I think the period away from the mother would be too long. I shall make the overnight provision the father seeks for Chinese New Year. This period is to be in addition to all other times the father spends with the child as a result of these orders if the father chooses to take 4 weekends in the six week cycle or an additional weekday because of Chinese New Year.
The mother asks for Christmas Eve, Christmas Day, New Years Eve and New Years Day with her. The father does not oppose this. The mother offered, in oral evidence, to permit the father to take the child to any family gathering he has for Christmas. This seemed to me when I heard it to be an offer which was made for tactical reasons and not heartfelt. I think it would be a source of conflict if I were to make an order in accord with this offer, so I shall not do so. I shall make orders that ensure the child spends Christmas Eve and Christmas Day with the mother. New Years Eve and Day should also be spent with the Mother so the child has a sense that the orders are fair.
It is implicit in the mother’s stance that she opposes school holiday contact between the child and the father because it involves prolonged time together for the child and the father. I think that such contact should be commenced in the first school vacation of 2011 which commences when school breaks up on Friday 8 April and continues until Tuesday 26 April when children return to school. By then, the child will be close to six years old and should have had time to get used to sleeping overnight with the father. Despite this, at her age, I regard seven days away from the mother as too much. I do not think she should spend as much as that away from the mother until the Christmas holiday for 2011-12, so, I shall give her 4 days and nights with the father in each school vacation until then. In the 2011-12 Christmas vacation and each shorter school vacation thereafter, she should spend seven days and nights with the father until the 2012-13 Christmas vacation when she should be ready to spend about half of each vacation including the Christmas vacation with the father.
I am by no means satisfied that the father will be able to take time off work during all the times, especially school vacation times, I regard as appropriate for the child to spend with him. I expect him to be able to arrange most of these times off because he is able to take four and up to five weeks in holidays from work each year. I expect the child to be cared for by the father’s mother and, hopefully, his father and other members of the father’s family when the father is at work during his nominated or ordered contact periods. He has at least two brothers. I regard such arrangements as highly likely to be beneficial for the child. They will help her understand and identify with the Chinese part of her family and to learn of and become more accustomed to and comfortable with Chinese attitudes and culture.
I shall make orders which leave the parties with as much certainty as possible and which ensure that the periods that the mother feels are important are spent with the child.
I have given considerable thought to the issue of changeovers. My conclusion is that in all instances each parent should collect or deliver the child at the other parent’s home. This will give the child a better message than changeovers at school or at public and impersonal intermediate places such as railway stations, shopping malls and roadside restaurant parking lots which are designed to ensure parents are kept apart because they have such a tendency to engage in inappropriate behaviour.
All changeover places other than the parents’ homes will ensure that the child sees her situation as less than normal because she will not experience her parents calling on one another, as she should expect them to do. This does not mean that I think the parties should share the travel burden on the basis of equal travel distance. I can discern no reason why the father should not collect the child from and return her to the mother’s home in five of every six occasions the child spends with him, whether these occasions are for a few hours, days or weeks. He has a car and, in the overall scheme, has not had to and will not have to devote as much of his time to the child’s care as the mother who does not drive and must rely on lifts from family and friends or public transport to deliver or collect the child.
The mother says she does not require limits on the child’s electronic contact, including telephone contact, with the father. I think it is in the interest of the child to put some limits on telephone contact but not email or telephone text contact when the child has her own telephone and access to email. There should be limited telephone contact with the child by the mother when the child is with the father and by the father when the child is with the mother. One telephone call on a weekend and not more than two telephone calls during weekday periods appears to me to be sufficient. No telephone calls should be permitted to colour special days.
The father wishes to have the watch list restriction on travel outside Australia removed. He wishes to take the child to visit his grandparents in China. He is concerned they are getting old and the child will not get to meet her grandparents. I think his concern is warranted. I do not believe there is any realistic prospect that the father might spirit the child away and not return her. He had hoped to take her to China soon but he has postponed the prospect for a few years because of his father’s illness. I think once the child is used to being away from the mother for a prolonged time there is no reason why the father should not take her to China or elsewhere overseas for a holiday. The father’s close family remains in Sydney.
The mother has no family in a country which is not a signatory to the Hague Convention. She probably has little money. I do not regard her as presenting a risk to the child’s relationship with the father by attempting to take her overseas permanently, although regard her as likely to contemplate doing so to meet her need to permanently isolate the father from the child.
I shall order the removal of the child’s name from the watch list. The father will then be able to take her on holiday overseas for as long as he is able to spend time with her pursuant to the orders. The mother should be in the same position. I shall order that each should provide the other with an itinerary, copies of air tickets and telephone contact numbers. The application for the order to restrict the mother from taking the child to live outside Sydney is warranted by the evidence. The mother was not put in a position where she could effectively oppose it because she was notified too late. I shall not make such an order, but shall require the mother to give the father two months notice before moving the child to live outside the metropolitan area. It is something she is likely to consider in her quest to avoid the orders allowing contact, especially overnight contact, I intend to make.
The issue of the child’s surname is important for her. The mother justifies the change she seeks because, she says, the child wants to use the surname Lewis. She has wanted to be known by both parents’ names since she was four, according to the mother. Originally, the mother said that the child wanted to use both parents’ names, then the mother changed her story and said the child now does not like the father’s surname. I believe her to some extent. I do not believe the child came to any view at all without being influenced by the mother. The child probably does hold a view which rejects or diminishes her identification by her father’s surname, but this is entirely the creation of the mother who, as the father’s opposition to any change for the current formal situation infers, wants the change as part of her quest to undermine the child’s relationship with the father.
The mother has unilaterally taken steps to do this through the child’s name. Although she is enrolled at school under the name Hing, she uses Lewis there as her surname and is known as K Lewis at school. I am quite satisfied that to help ensure that the child identifies sufficiently with her father she should use only the surname Hing. Lewis should not be part of her name whether with or without a hyphen or as one of her middle names. I shall make an order to that effect.
The mother asks that both parties be ordered to attend anger management courses. It is my view that to force a person to do so is pointless because he or she cannot be made to listen, accept what is said or to allow such a course to have any beneficial effect. If a parent wishes to attend, he or she can do so by initiating that attendance. It is only then likely to be of value to him or her.
I am not satisfied that anger is the problem here. The level of violence and anger has not been shown to be great in the father. The mother’s anger is much greater, but anger management does not appear to me to be the solution for her even though the child and the paternal grandmother, not coincidentally, describe her as angry in circumstances where one could not other than believe this description is the result of their individual experiences. The mother needs help to overcome the cause of her anger rather than to manage it. I shall not make the relevant order she seeks.
I shall make orders which are consistent with the above as well as those like the independent children’s lawyer seeks to ensure each party is fully informed about medical etc and educational matters involving the child. I shall not make an order about providing the child with a separate bed as I do not regard it as necessary. In my view, the father is not so irresponsible that he would fail to make appropriate sleeping arrangements for the child.
Although the independent children’s lawyer seeks costs, costs should be reserved because neither she nor the parties have had the opportunity to consider this judgement and its effects. It is my view that s 117 of the Act, as well as justice, requires me to take the judgement into account in determining whether or not a costs order is to be made, against whom and to what extent it should be made. It would be unjust to make an order or refuse an order unless all whom might be affected have the opportunity to address me after having access to the judgment.

I certify that the preceding one-hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 31 January 2011.

Associate:

Date: 31 January 2011

[2011] FamCA 30

31 January 2011

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Family Law

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Jurisdiction

Procedural Fairness

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