Mandes & Bamford (No 2)

[2012] FamCA 1142

FAMILY COURT OF AUSTRALIA

MANDES & BAMFORD (NO 2) [2012] FamCA 1142

FAMILY LAW – CHILDREN – Interim Parenting Arrangements – where the child lives with the mother – where the child spends time with the father each weekend – where the untested evidence did not demonstrate that the mother posed an unacceptable risk of harm to the child – where the mother was the primary carer for the child - where the time the child spends with the father was reduced due to the distance between the parties

FAMILY LAW – CHILDREN – Parental Responsibility – where the presumption of equal shared parental responsibility did not apply due to family violence – where the mother was allocated sole parental responsibility due to the parties’ inability to jointly make decisions about major long-term issues affecting the child

FAMILY LAW – CHILD ABUSE – Allegations the mother had either deliberately physically abused the child or recklessly neglected the child – where the father poses a risk of psychological harm to the child if his allegations against the mother are not proven - where the risk of physical harm to the child through abuse or neglect in the mother’s care was less than the risk of psychological harm to the child in the father’s care – where no determinative findings of controversial facts could be made on an interim basis –  Goode & Goode (2006) FLC 93-286 applied

FAMILY LAW - EVIDENCE – Reliability of expert evidence – where the father tendered adversarial expert opinion evidence in relation to the alleged abuse of the child by the mother – where the adversarial expert opinion was unreliable – where the expert’s opinion had previously formed the basis for interim orders that the child should spend no time with the mother

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Mandes

RESPONDENT: Mr Bamford

INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

FILE NUMBER: NCC 1425 of 2012

DATE DELIVERED: 19 December 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 19 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Haricharan

SOLICITOR FOR THE APPLICANT: Hunter Family Law Centre

COUNSEL FOR THE RESPONDENT: Ms J. Sharah

SOLICITOR FOR THE RESPONDENT: Sharah & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P. Hamilton

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

Orders, pending further order

1.All former parenting orders relating to the child H (“the child”) born, … June 2011, are discharged.

2.The mother shall have sole parental responsibility for the child.

3.The child shall live with the mother.

4.Each of the parties shall take all reasonable steps to ensure that the child spends time with the father unless otherwise agreed:

a.From 10.00 am to 4.00 pm on 24 December 2012; and

b.Each weekend from 10.00 am Saturday until 4.00 pm Sunday, commencing on Saturday 29 December 2012.

5.For the purposes of implementing the preceding order:

a.The father shall cause the collection of the child at the commencement of the child’s time to be spent with the father at the McDonalds Restaurant at J Town, NSW; and

b.The mother shall cause the collection of the child at the conclusion of the child’s time with the father at the McDonalds Restaurant at Suburb G, NSW.

6.Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

7.Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

8.The mother is restrained from causing or permitting the child to be brought into contact with the maternal grandfather, Mr K.

9.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

10.Any and all outstanding applications for interim orders are dismissed.

IT IS FURTHER ORDERED THAT:

11.The trial of this matter is listed before Justice Austin at 10am on Monday 18 March 2013 for a period of five days.

12.The applicant mother shall file and serve any Amended Application by Friday 11 January 2013.

13.The respondent father shall file and serve any Amended Response by Wednesday 23 January 2013.

14.The parties shall file and serve the affidavits upon which they rely by Friday 22 February 2013.

15.Leave is granted to the applicant mother to file and serve one affidavit for each of the following persons:

a.Herself;

b.Ms L;

c.Mr M; and

d.Mr N.

16.Leave is granted to the respondent father to file and serve one affidavit for each of the following persons:

a.Himself; and

b.Ms O.

17.Leave is granted to the respondent father to rely upon the affidavit of Dr C filed in Court on 21 November 2012 as an adversarial expert witness provided Dr C is available for cross examination in person at the trial.

18.The witnesses relied upon by the Independent Children’s Lawyer will be:

a.The Family Consultant;

b.The single expert paediatrician, Dr B who has been appointed by the parties and the Independent Children’s Lawyer pursuant to Orders 5 to 7 made on 20 September 2012.

19.Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits, without the leave of the court.

20.The Independent Children’s Lawyer shall forthwith notify the single expert paediatrician and Family Consultant in writing of the trial dates and confirm the availability of both the single expert paediatrician and the Family Consultant to give evidence on those dates.

21.Leave is granted to the parties and Independent Children’s Lawyer to issue update subpoenae to any person or entity to whom a subpoena has been issued in the past.

22.Leave is granted to the respondent father to issue a subpoena to Dr P.

23.Leave is granted to the applicant mother to issue a subpoena to Dr C.

24.The Application-Contravention filed by the father on 20 September 2012 is adjourned to 9.30am on Wednesday 24 April 2013 for further procedural directions.

25.The dispute about access to documents produced on subpoena by Professor A is adjourned for argument before the Court at 9.30am on Thursday 14 February 2013 and for that purpose:

a.The respondent father shall file and serve written submissions concerning his legitimate forensic purpose in seeking access to such documents by Monday 4 February 2013; and

b.The applicant mother shall file and serve written submissions concerning the grounds upon which she opposes other parties’ access to such documents by Monday 11 February 2013.

26.The parties shall by Wednesday 13 March 2013, file and serve upon one another a Case Outline Document containing:

a.Summary of argument; and

b.List of authorities.

27.If any party should default in the compliance with these orders any other party may, on notice to the other parties, to seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

28.Liberty to restore to the list on 7 days notice for further procedural directions.

NOTATION:

A.Dr B is due to consult with the parties and child on 9 January 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mandes & Bamford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC 1425 of 2012

Ms Mandes

Applicant

And

Mr Bamford

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

Introduction

1.The child who is the subject of these proceedings is H, born in June 2011.  As would be apparent from the recitation of her date of birth, the child is now barely 18 months of age. 

2.The applicant mother in the proceedings, Ms Mandes, lives in R Town on the Central Coast of New South Wales, and the respondent father, Mr Bamford, lives at S Suburb in the western suburbs of Sydney. 

3.The parties were formerly in a relationship and the child is the only child of that relationship.  They separated on or about 9 April 2012, after which time the child remained living with the mother, but consensually spent time with the father. It is apparently uncontroversial that the mother has been the primary caregiver of the child from the time of her birth.

4.These proceedings were commenced in May 2012 when the father retained the child.  Since then the proceedings have had a ridiculously complicated history for such a short period of months.  The case has already had four interim events.  This will be the fifth. 

5.On 31 May 2012 orders were made for the child to live with the mother and a recovery order was made for the purposes of the child being restored to the mother’s care. 

6.On 13 June 2012 interim consent orders were made by Myers FM providing for the child to live with the mother but to spend time with the father for three hours on three separate days each week, being Wednesday, Thursday and Sunday. 

7.On 20 September 2012 some further consent orders were made between the parties by Myers FM providing for the child to live with the mother and to continue spending time with the father on three separate days each week, but for longer periods, that being between 10.00 am and 4.30 pm every Tuesday, Saturday and Sunday. 

8.On 21 November 2012 the parenting regime which had previously obtained until that time was changed radically.  On that occasion Myers FM made orders for the child to live with the father and for the child to have no contact with the mother.  On the same date Myers FM transferred the proceedings into this Court. 

9.The proceedings are before the Court today for procedural management towards final trial, which will shortly be listed in March of 2013.  The matter has been entered into the Magellan protocol of the Family Court because of the allegations of serious physical abuse of the child made by the father against the mother.

10.The antecedent consideration for the Court is what interim orders should be made to prevail between now and when the trial is reached in March next year.  The impetus for a fresh review of the orders recently made by Myers FM on 21 November 2012 is, effectively, premised on two factors.  First, the child is having no interaction at all with the mother, her former primary carer, and secondly, evidence has come to light since 21 November 2012 which tends to cast doubt upon the veracity of the opinion expressed by Dr C, a paediatrician, in whose opinion considerable weight appears to have been formerly reposed by Myers FM when the last orders were made on 21 November 2012.

Proposals and evidence

11.The respective proposals of the parties and the evidence upon which they rely are as follows.

12.The mother proposes a suite of orders, comprising Exhibit M1, which provide for the child to live with her and for the child to spend time with the father each weekend from 10.00 am Saturday until 4.00 pm Sunday.

13.In support of that position she relies upon her affidavit filed and served yesterday, 18 December 2012, and the affidavit of her current partner, Mr N, also filed and served yesterday, 18 December 2012. 

14.As the solicitor for the father correctly points out, they have had little time within which to respond to that affidavit material. But, as emerged during the discourse between bench and bar, the factual disputes which might be apparent from any rejoinder affidavit filed by the father are unlikely to take this interim dispute much further, given that I will not embark upon any analysis of the many and varied factual disputes between the parties. 

15.The father’s proposal is elliptically explained in his minute of orders, which is Exhibit F1. Although it is not expressed in that minute, the father’s proposal is that the child continue to live with him, but that the child spend time with the mother on three separate days each week, being Tuesday, Thursday and Saturday, between 10.00 am and 4.00 pm and, in addition, some time with the mother on Christmas Eve. 

16.As would be apparent from that description, the father’s proposal for the parenting regime is, effectively, a mirror image of the consent orders previously entered into by the parties in September 2012. 

17.In support of his position the father relies upon his affidavit filed on 21 November 2012 and an affidavit of Dr C, paediatrician, sworn on 14 November 2012.  As I have already indicated, the affidavit of Dr C was relied upon by the Federal Magistrate in making the orders on 21 November 2012.

18.The Independent Children’s Lawyer stands behind the mother, supports her proposal, and invites the Court to read the Family Report prepared recently on 28 November 2012 to support the mutual proposition of him and the mother. 

19.I have read all of that material.  No other documents were tendered.

Applicable legal principles

20.Orders in respect of children are regulated on the Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a parenting order. When called upon to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.

21.When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

22.The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to allocated equal shared parental responsibility, but that presumption does not apply in some circumstances and may be rebutted in others.  If equal shared parental responsibility is allocated to the parents, either presumptively or otherwise, then the Court is required to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other. 

23.If the presumption of equal shared parental responsibility does not apply or is successfully rebutted and a different form of parental responsibility order is made then the Court’s discretion is at large in the determination of the parenting orders warranted, although the discretion must still be exercised within the parameters of the prevailing legislative provisions. 

24.Those principles have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

25.Those principles which I have just recited apply equally in respect of interim parenting orders as they do in respect of final parenting orders.  However, the procedural considerations for the adjudication of interim orders are different from those when making final orders. 

26.As the Full Court said in Goode & Goode (at para [68]):

... making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”.   Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. 

27.In the context of those applicable principles I turn to consider the available evidence.

Consideration

28.Uncontroversially, the child lived with the mother continuously until orders were made by the Federal Magistrates Court on 21 November 2012.  Since that date, not only has the child not lived with the mother, the child has not even seen the mother.  The only reason for that predicament is the asserted risk of physical abuse posed to the child by the mother. 

29.Having regard to the evidence and the submissions made to the Court, it seems there is nothing to support that asserted risk other than, firstly, the father’s belief and, secondly, the opinion of Dr C.  I will deal with each of those issues sequentially. 

30.As I have already explained, on 13 June 2012, Myers FM was invited by the parties to make orders with their consent.  On that occasion his Honour ordered that the child live with the mother and spend three hours with the father on three separate days each week. Presumably, the father would not have consented to orders of that ilk unless he thought they represented the child’s best interests.

31.It was only several months later, on 14 September 2012, that the father filed his Response setting out the final orders that he proposed in respect of the child and contemporaneously filed a Form 4 Notice of Child Abuse.  That Notice specified a belief by the father that the mother had harmed, or at least posed a risk of harm to, the child in the form of an “assault by way of deliberate or negligent mistreatment”. 

32.However, when one compares the asserted risk in that Notice with the Response filed on the same day, the father’s proposal for final orders requiring that the child spend time with the mother for two full days each week until she attained the age of five years and, after she attained the age of five years, each alternate weekend and for half of school holidays, was inherently inconsistent with the risk he alleged the mother posed to the child at that point in time.

33.It was only a week later, on 20 September 2012, that the Federal Magistrate was again asked to make consent orders between the parties.  On that occasion the father again consented to orders that the child live with the mother and spend time with him on three separate days each week, albeit this time for a period of six and a half hours each occasion.  Again, I doubt the father would have agreed to those orders unless he considered them to reflect the child’s best interests. 

34.The father deposes in his affidavit filed on 21 November 2012 that he became concerned about bruising that he observed to the child’s body on 3 November 2012.  He says as follows (at paras [24]-[28]):

Upon seeing [the child] on 3 November 2012 I immediately saw a number of cuts and bruises on the forehead of [the child].  I asked [Ms Mandes] at the time of changeover how these cuts and bruises had occurred.  [Ms Mandes] told me that [the child] had fallen down some stairs. 

Annexed hereto and marked with the letter H are the photographs I took of [the child] on 3 November 2012. 

Annexed hereto and marked with the letter I is a copy of the report. 

I then took [the child] to T Suburb Police Station on 3 November 2012 at 10.40 am in order to have her injuries assessed and recorded. 

I also took her to the hospital to have the injuries assessed medically and also to see if there were any underlying injuries.  Annexed hereto and marked with the letter J is a copy of the discharge summary document from the hospital evidencing the visit to the hospital on 3 November 2012.  

35.Notwithstanding the father’s apparent concern on or about 3 November 2012, he was not seemingly reassured by the mother’s explanation of accidental misadventure. 

36.It appears as though the police and medical staff to whom the child was taken on or about that date did not regard the situation as suspicious.  Notwithstanding any information imparted to the father by police and/or medical staff at the hospital, the father decided to return the child to the mother and they continued to implement the orders which had been made shortly before in September.  Whatever fear the father then continued to entertain about the risk of abuse posed by the mother to the child, he put to one side. 

37.As I have already indicated, the father’s current proposal is for the child to spend unsupervised time with the mother three days each week for a total of six hours on each occasion.  As was pointed out by the Independent Children’s Lawyer and the solicitor for the mother, such a proposal is fundamentally inconsistent with any existent allegation of risk posed by the mother to the child. 

38.It was explained by the solicitor for the father that the risk of the child’s abuse by the mother was more pronounced at night rather than during the day and that was the explanation for why the father declined to offer the child overnight time with the mother. I cannot accept that explanation, which has no foundation either in evidence or logic.  If the father genuinely entertains the view that the mother is capable of deliberately abusing the child, or so recklessly supervising her that she is prone to injury, logic dictates that the risk is just as pre-eminent during the day as it is at night. Self-evidently, the father’s proposal is inconsistent with the risk that he continues to allege against the mother. 

39.The other aspect that I have referred to, which I will now elaborate, is the opinion of Dr C.  It became apparent in the course of dialogue between bench and bar that Dr C became involved in this case as an adversarial expert, not a single expert. 

40.The Family Law Rules 2004 (Cth) (“the Rules”) provide that the orthodox situation is for the engagement and instruction of an impartial single expert, the choice of whom is a mutual one between the parties, in the event of a dispute over a matter which requires the clarification of an expert opinion.  The Rules were specifically designed in that way to obviate the oft occurrence of parties engaging their own adversarial experts who then came to regard themselves as advocating an expert opinion on behalf of the party by whom they were retained.

41.I accept that the father may have been referred with the child to Dr C by his general practitioner to investigate concerns about the child, but it follows from such a submission by the father that Dr C was engaged for a therapeutic purpose; namely to treat the child and/or provide advice about her treatment.  When a report and later an affidavit were solicited from Dr C for the purposes of filing in these proceedings he ceased to be a therapeutic expert and then became a forensic one. That fundamentally changed the role Dr C was asked to perform in the context of these proceedings. 

42.It is not disputed that the affidavit of Dr C, albeit sworn on 14 November 2012, was not actually served until a short time in advance of the former interim hearing conducted before Myers FM on 21 November 2012.

43.It is also apparent from the evidence now available that Dr C did not see the child exhibiting the injuries which are the subject of photographic evidence.  It is clear from the reading of Dr C’s affidavit that the opinion he expresses about the child’s injuries were based upon photographs furnished to him by the father.  As has been pointed out by the Family Consultant in her more recent report, it seems fairly clear that Dr C proffered his advice on the erroneous factual assumption that each of the child’s injuries depicted in each of the various photographs was sustained by the child contemporaneously in the one event or the one incident.  If indeed that was the assumption made by Dr C it was fundamentally flawed, because the mother deposes in her affidavit to the bruising depicted in those photographs having occurred on three discrete occasions.  She refers in her affidavit to incidents on 4 July 2012 (at para [76]), 26 August 2012 (from paras [93]-[97]), and 2  November 2012 (at para [133]); clearly, three separate events across a period of four months.

44.Although it is a little unclear as to how Dr C became appraised of his understanding about the mother’s explanation for the bruises, it seems apparent from the contents of his report (being Annexure C to his affidavit) that he assumed the bruises were sustained when the child fell on or about some steps. 

45.In the body of his affidavit (at para [7]) Dr C says:

It is my opinion that the mother’s explanation for the injuries sustained to [the child] are (sic) not plausible because: 

The bruises are of different ages and are located on different parts of the head, face, neck and forearms. A child falling down the stairs is unlikely to sustain bruises in areas where there is no direct body contact like the neck.

There are three skin breakages on the forehead.

There are two bruises on the right outer forearm and on the outer hand.  It is unlikely that these would be obtained from a fall down the stairs.

46.The factual version given by the mother is different from the assumption made by Dr C about the mother’s explanation for the injuries. 

47.It is also instructive to observe that in his initial report dated 9 November 2012 (which is Annexure C to his affidavit), Dr C says in respect of those bruises:

I strongly suspect that these are non-accidental injuries and they are inflicted by an adult. 

48.Self-evidently, Dr C is only prepared to posit his opinion as a suspicion, not an opinion on the balance of probabilities, which is the standard of proof the Court is required to employ in matters of this sort. 

49.The other point to be noted about the evidence of Dr C is that his opinion is apparently in conflict with other available medical evidence.  As the Family Consultant sets out in the Family Report (at para [160]):

At paragraph 7(ii) [Dr C] reports three skin breakages on the forehead that are likely to be inflicted by an adult rather than caused by a fall.  His opinion in this regard appears to differ somewhat with hospital records which state that the exact cause of the injuries could not be predicted and that there was a possibility of the injuries being accidental taking the age and the ambulatory capacity of the child into consideration. 

50.Having regard to the evidence upon which the father has formed his belief and the nature of the evidence given by Dr C I am, of course, not prepared to say that the mother does not pose any risk of physical abuse to the child at all. There is evidence which could logically form the foundation for such a finding. 

51.However, as I have already indicated, the law obliges me not to reach factual findings in relation to highly controversial evidence which remains untested.  For that reason I conclude these interim proceedings on the basis that the mother may pose some risk of harm to the child, but that it is presently impossible to quantify the level of that risk. 

52.One thing I am prepared to say at this juncture is that I am not so far satisfied that the level of the risk posed by the mother is unacceptably high. 

53.There are several summary reasons for that. Firstly, the evidence is too nebulous and conflicted, secondly, Dr C’s opinion is susceptible to valid attack, thirdly, the historical proposals of the father tend to suggest that he is not convinced of the efficacy of the risk, and lastly, even if the mother did deliberately cause or recklessly allow the injuries sustained by the child she is now clearly on notice about the seriousness of the issue and the closeness of the scrutiny of her care of the child. In such circumstances it seems inherently unlikely that she would expose the child to abuse any time between now and the final trial. 

54.As the Independent Children’s Lawyer and the solicitor for the father correctly observed during the course of the submissions, this is a case about comparison of risk. So far I have dealt with the alleged risk of physical harm posed by the mother to the child.  I have said nothing yet of the alleged psychological harm said to accrue to the child in the event that she continues to live with the father.  This was a matter taken up in submissions by the Independent Children’s Lawyer. 

55.As has already been observed, the child has been cared for primarily by the mother up until the last orders were made in November 2012.  A strong inference arises that the child’s primary attachment is to the mother.  Indeed, the solicitor for the father drew my attention to a portion of the Family Report (at para [227]), which I agree is persuasive at this stage.  The Family Consultant there said:

If the Court finds that the child is not at unacceptable risk of harm in the care of the mother… 

And I pause here to observe, that is my finding at this point:

…then, given the mother has been the primary attachment figure for [the child], it would appear to be appropriate that [the child] return to live with the mother with some urgency.  This is because [the child] is too young to comprehend the absence of her mother (hitherto her primary attachment figure) from her life for extended periods of time and, accordingly, is likely to be confused and distressed and potentially experience her mother’s absence as abandonment. 

56.In my view it is unnecessary to make any findings about the father’s persistent involvement of the child in investigations by independent authorities such as the police, the Department of Family and Community Services and medical authorities. Although submissions have been made about that by the Independent Children’s Lawyer, they are factual matters that will no doubt be taken up in the evidence when the matter comes before me for a final trial. 

57.It is enough to observe that the rupture of the child’s primary attachment to the mother over the last few weeks actually causes the child psychological harm and the risk of her continuing to sustain psychological harm in those circumstances remains high. 

58.As the legislative provisions require me to do, I turn my attention to the allocation of parental responsibility.

59.The Court is informed, without contradiction, by the Independent Children’s Lawyer that the father has been convicted of assaulting the mother. If that is so then it is evidence of family violence. Evidence of family violence, pursuant to s 61DA(2) of the Act, displaces the presumption of equal shared parental responsibility.

60.Even if there was no evidence of family violence so as to displace the presumption I would find, pursuant to s 61DA(4) of the Act, that the evidence rebuts the presumption of equal shared parental responsibility. There are essentially two reasons for that. First, the antipathy between the parties is almost utterly unrestrained. The evidence suggests that the parties are so highly conflicted that the prospects of them being able to maturely, civilly and courteously discuss with one another issues of major long-term importance to the child for the purposes of joint exercise of parental responsibility is remote. I also remain concerned by the submissions made by the Independent Children’s Lawyer about the presentation of the child by the father and other members of the paternal family to a variety of investigating authorities without recourse to the mother.

61.For those reasons, I am persuaded that one party or the other should have sole parental responsibility for the child, at least pending the final hearing, and given I have concluded the child must live with the mother it is her to whom sole parental responsibility will be allocated. 

62.I have concluded that the risk of the child sustaining physical harm while living with the mother is less than the risk of the child sustaining psychological harm if she continues to live with the father. 

63.That causes me to give consideration as to what orders should prevail in terms of the time to be spent by the child with the father. 

64.As I have already indicated, consent orders were made in June 2012 for the child to spend time for three hours on three days each week with the father.  Those orders were expanded again with the parties’ consent in September 2012, when orders were made for the child to spend six and a half hours with the father on three separate days each week. 

65.The parties, however, apparently mutually found that level of travel too onerous. The mother deposes in her affidavit (at para [114]) that on Saturday 6 October 2012, which is several weeks after the consent orders were made in mid September, she spoke to the father about the child because she found the child was not coping well with the long travel, especially during the weekends.  The mother said the child was irritable and would not sleep when they got home and she was crying loudly in the car. As a consequence, the parties agreed the child would stay with the father from 10.00 am Saturday to 4.30 pm Sunday each weekend as a trial. That arrangement apparently applied consensually between the parties for some time, but was ceased once the interim orders were delivered by Myers FM in November 2012.

66.Self-evidently, the current proposal of the mother and Independent Children’s Lawyer seeks to replicate the agreement struck between the parties as recently as early October 2012.  I am persuaded that that is an appropriate order to make in the best interests of the child.  It ensures that the child lives with the mother as the primary carer, spends frequent and significant time with the father, with whom she obviously still has a meaningful relationship, and reduces the burden upon the child of such frequent travel which, on the father’s proposal, would entail six trips between Sydney and the Central Coast each week. 

67.As I said at the outset, the mother lives at R Town on the Central Coast and the father lives at S Suburb in the outer suburbs of Sydney.  Although there was no evidence as to the driving time between the households, that is a drive of some distance for the child to endure on a regular basis.  That burden ought be ameliorated by arrangements which require the child to undertake that travel on only two occasions each week. 

68.As for changeovers, it seems to me appropriate that the parties share relatively equally in the burden of the travel that will be required.  I intend to make an order that the father collect the child from the mother on the Central Coast and the mother collect the child from the father in Sydney.   The selection of those venues is relatively arbitrary but I take into account that the mother (in Exhibit M1) proposes changeovers at McDonald’s, J Town and the father (in Exhibit F1) proposes changeovers on Saturdays at McDonald’s, Suburb G.  

69.For those reasons I make the following orders.

ORDERS DELIVERED

70.I make the following further procedural orders.

ORDERS DELIVERED

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 December 2012.

Associate: 

Date:  12 March 2013