MAYNE & JARVIS

[2015] FCCA 1406

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYNE & JARVIS [2015] FCCA 1406

Catchwords:
FAMILY LAW – Parenting orders – child to live with mother and spend time with father – father’s irregular work schedule – young child – 10 months old at separation – need to make orders with some flexibility.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR MAYNE

Respondent: MS JARVIS

File Number: MLC 274 of 2014

Judgment of: Judge Hartnett

Heard at: Geelong

Hearing dates: 17, 18 and 19 February 2015

Final and interim Orders made: 19 February 2015

Delivered at: Melbourne

Delivered on: 27 May 2015

Final Orders made: 27 May 2015

REPRESENTATION

Counsel for the Applicant: Mr Ambrose

Solicitors for the Applicant: Harwood Andrews Lawyers

Counsel for the Respondent: Ms Elleray

Solicitors for the Respondent: Wightons Lawyers

ORDERS

1. The child [X] born [omitted] 2012 (‘the child’) spend time and communicate with the father as follows:-

   (a)by telephone twice each week between 6.30pm and 7.30pm with the father to instigate the telephone call and such call be for no more than 10 minutes in duration;

   (b)for up to nine hours on one day each week, being a day selected by the mother with reference to the father’s roster such that the father will not be at work. Such roster to be provided to the mother 45 days in advance of the relevant time by the father, and be derived from the father’s employer’s records, and state the date, commencement and conclusion time of each shift to be worked by the father. Thereafter the mother is to notify the father at least 30 days in advance of her selection for time spent with between the child and father;

   (c)for one overnight period each week of up to 24 hour from 8.00am or 12.00pm. Such period again be referrable to the father’s work roster on the same terms as provided for in order 1(b) herein with the day and time to be at the mother’s selection;

   (d)in October 2015, in Tasmania for three days and two nights in substitution for one week of time spent with and the father to be on leave. The father to select such time and provide the mother with 30 days written notice;

   (e)in January 2016 for four nights and five days in substitution for one week of time spent with and the father to be on leave;

   (f)upon the child commencing kindergarten in 2016 the time spent with, as provided for in sub-paragraphs (b) and (c) above, is not to occur between 8.30am and 4.30pm on Tuesday and Thursday for those times when the child is attending kindergarten during the kindergarten term;

   (g)from 5.00pm the night before Father’s Day until 5.00pm on Father’s Day if the child is not already in the father’s care;

   (h)the father spend time with the child from:-

   (i)3.00pm on Christmas Eve until 3.00pm on Christmas Day 2015;

   (ii)3.00pm on Christmas Day until 3.00pm on Boxing Day 2016;

   and each alternate year thereafter.

   (i)until the commencement of school in 2017:-

   (i)for five hours on the child’s birthday at times as agreed in writing if the child is not already in the father’s care;

   (ii)for five hours on the father’s birthday at times as agreed in writing if the child is not already in the father’s care; and

   (j)as otherwise agreed in writing or text between the parties.

2. All overnight periods each week as provided for in order 1(c) herein are to occur with at least three days intervening, unless otherwise agreed by the mother.

3. Notwithstanding any other orders to the contrary:-

   (a)the mother is at liberty to holiday with the child for up to two single weeks of seven days between this date and 31 January 2016, and during such periods the father’s time spent with the child is suspended in operation, save for the provision of telephone calls. The mother is to provide the father with 30 days’ written notice as to the time of her choosing and same shall not interfere with the father’s extended times in October 2015 and January 2016 as set out in sub-paragraphs (d) and (e) above;

   (b)the father is not to spend time with the child every weekend, such that no time is available for [X] to spend with the mother. The child is to be in his mother’s care each second weekend from at least 12.00pm on Saturday until 8.00am on Monday; and

   (c)if the child is in the father’s care for more than two days then the mother is at liberty to telephone the child at all reasonable times.

4. Commencing 1 June 2016, the child shall spend time and communicate with the father, at the father’s election, for a block period of up to 48 hours (in lieu of the two period of 24 hours each) in a fortnight on the same basis as otherwise provided for in order number 1 herein.

5. Commencing 1 January 2017, the father’s time spent with the child is to be by agreement between the parties and not in accordance with these Orders. In the event the parties require interim orders pending litigation, then in the month of January 2017, the child shall spend two single periods of five consecutive days with his father, who shall be on leave, as notified to the mother in writing in November 2016. The child shall otherwise live with the mother.

6. There is liberty to apply on short notice for an urgent listing before Judge Hartnett as to 2017 and onward.

7. Changeovers to take place at kindergarten or school where possible and otherwise at the parties’ respective homes with the father to collect the child from the mother’s home at the commencement of time spent with and the mother to collect the child from the father’s home at the conclusion of time spent with.

8. For the purposes of changeovers at the parties’ respective homes, the parties shall send a text message to the other notifying them of their imminent arrival.

9. The parties shall each inform the other as soon as is reasonably practicable of any serious injury or illness sustained by the child whilst in their care and provide particulars of any treatment required or received by the child, together with the name and address of the treatment provider and/or location at which the child is hospitalised.

10. Each party shall provide the other party with no less than 14 days’ notice of any specialist medical appointments to be attended by the child, including the time and location of the appointment, and that both parties be permitted to attend the child’s specialist medical appointments.

11. Each party shall make available to the other party any medication prescribed for the child for the other party to administer as prescribed or required.

12. Each party is at liberty to contact the child’s day care, kindergarten or school (as applicable) to make arrangements to obtain copies of any newsletters, notices, permission slips, photographs and reports relating to the child’s attendance at the relevant educational or care facility.

13. Both parties are restrained by themselves, their servants and/or agents from discussing the Court proceedings with the child, or denigrating the other party or the other party’s family members in the presence or hearing of the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 274 of 2014

MR MAYNE

Applicant

And

MS JARVIS

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve parenting orders as sought by each of the parents of the child [X] born [omitted] 2012 (‘[X]’). [X] is now three years of age. Since the separation of his parents on 11 February 2013, when he was approximately 10 months old, he has lived with his mother and spent time with his father, initially by agreement, and then by orders of this Court. A consistent theme of these orders, has been provision of frequent time spent with between [X] and his father, in the context of the father’s work roster. [X]’s residence being with his mother has never been disputed between the parties. Nor has the exercise of equal shared parental responsibility in respect of [X] been other than agreed. The issue of property distribution between the parties was initially litigated and then resolved by consent orders. Outstanding remains the time [X] will spend with his father, and how that can be formulated given the nature of the father’s employment, the mother’s desire to gain employment in the future, and [X]’s evolving needs.

2. The proceedings before me were truncated and did not seek to canvass, at great length, the history of the parties. There was agreement that neither Ms D nor Dr E, both of whom were on affidavit, would be cross-examined. To their credit, the parties were focussed on the best way for [X]’s needs to be met in the future, rather than a critical analysis of their respective personalities, or an airing of their disappointments, one against the other.

3. The mother relies on affidavits sworn by her on 26 February 2014, 25 July 2014, 7 November 2014, 12 November 2014 and 12 February 2015. There is also an Affidavit filed by her mother on 27 February 2014. The father relies upon affidavits affirmed by him on 4 January 2014, 31 March 2014 and 9 February 2015. All are in evidence in the proceedings.

4. There is in evidence a Report by Psychologist, Ms D, sworn 12 February 2014. That Report was not updated for the purpose of the trial nor did it need to be. The parties relied on its recommendations during 2014 to implement gradual increases in time spent between the father and [X]. Also in evidence was a psychiatric assessment of both parties provided during the course of the proceedings in May 2014 by Dr E.

5. Statements of fact in these Reasons are findings of fact on the balance of probabilities.

Background

1. The mother is aged 37 years and the father 40 years. The mother resides in [T] and the father nearby in the former matrimonial home in [J]. The mother is a [occupation omitted] currently employed one day each week with a [omitted] company. In addition, she is [omitted] which provides, on average, one additional day’s employment each week. She has prioritised the care of [X] and has structured her working life, or lack thereof, around her care of the child. She would like now to obtain some further employment.

2. The father is employed full-time as [omitted]. This is a demanding occupation with little flexibility in hours worked. The father enjoys his participation in this occupation and requires, to some extent, the mother and [X] to fit their lives, commitments and pursuits around his work roster. That said, his income provides necessary child support payments, and his working hours are, to a considerable extent, beyond his control.

3. [X] lives with his mother. The fraught issue between the parties has been his time spent with his father in the context of poor communication between the parties, more as a feature of their differing personalities than anything else; and the father’s work roster, which precludes him from being available on a consistently regular basis to spend time with his very young son. This inconsistency has also hampered the mother’s ability to make plans for the care of [X], and her own re-entry into the work force. The orders which the Court has been asked to make, require a consideration of these problems.

4. The parties cohabited for a relatively short period of time, from 15 May 2010 until 11 February 2013, when separation occurred. There is dispute between the parties as to what was the level of participation by the father in [X]’s life prior to the separation. Other than find that the father did not equally share the parenting responsibility of [X] with the mother at that time, as claimed by him, and that the mother was clearly [X]’s primary care giver and attachment figure, I propose to not canvass this further in these reasons. The father has a demanding work regime. He has continued it throughout. It has involved travel from [J] to [T] whilst the parties were together, and periods of further study. It precluded him from being as involved as the mother in [X]’ health care and other needs when [X] was very young. It has allowed him, nevertheless, to spend enough periods of time with [X] such that, with the active support of the mother, he has a close and loving relationship with his son. Indeed, that is an agreed fact.

5. Following separation the mother obtained an Intervention Order against the father. It was made by consent and without admission. The father sought one against the mother which was resolved by the giving of a voluntary undertaking by the mother. The events which led to the parties being before the Magistrates’ Court at Geelong remain a source of disputation between the parties. The mother alleges the father is a controlling personality, has obsessive behaviours, was violent toward her during the relationship, and displayed a distinct lack of empathy throughout the relationship. She felt him menacing at times and described him as acting robotically. Her description of their separation, which also involved her parents who were present, and [X], was evidence of high conflict between the parties, and included an admission by the mother that she slapped the father, she claims out of fear at the things the father was saying, and the level of anger he was exhibiting. The mother called the police upon the father removing [X] from her care temporarily, and not away from the property. [X], at the time, was still on medication consequent upon necessary heart surgery performed on him shortly after his birth, and this produced great anxiety for both parents over a period of time which include the time around separation. The police attended the former matrimonial home and recommended the mother and child leave same, and pursue an intervention order application. The order obtained by the mother included [X] also as an affected family member. The order provided for the mother and [X] to return to the former matrimonial home, in the absence of the father.  The father was aggrieved by the proceedings. He deposed as to aspects of the mother’s personality he found unusual, including that she tendered to view men as being aggressive, threatening and/or demeaning where this was not the case. He claimed his behaviours could “not be considered ‘family violence’ by any reasonable objective measure”. He claimed the mother to at times have acted in an irrational and even hysterical manner. He claimed the mother used the existence of the Intervention Order against him inappropriately. The mother extended the Intervention Order’s operation 12 months later, but at the father’s request removed [X] from the order. That extension order was also made with the consent of the father.

6. The above provides a necessary background to current parental communication issues. The father has sought over time for he and the mother to attend therapeutic counselling to improve their relationship. The mother sees no benefit to be gained from that given their history, which includes mediation; counselling; attendances upon Ms D, psychologist, and Dr E, psychiatrist; attendances upon individual psychologists; attendances at individual courses for families and family members, including at Bethany; and throughout excessive communication between the parties. Over-engagement with the father causes the mother stress, and she wishes to normalise the family’s functioning without compulsory attendance upon external family relationship providers which wrongly or rightly, she sees as an environment where the father can seek to be controlling. The Court agrees that further counselling or engagement between the parties in any formal sense should not be imposed on them.  They are very different personalities. Both act, however, in [X]’s best interests, and actively seek to do so in a forward-looking way. The mother is supportive of [X]’s relationship with his father and acts to encourage it. The father is dedicated to [X] and so attempts to interact with the mother in a productive way.

7. Following separation and until February 2014, [X] mostly saw his father on a frequent basis, being between three and four times a week, but not overnight. [X], being only 10 months of age at separation was highly dependent on his mother. He required day time sleeps. The parties had occasional difficulties in organising those times and agreeing on their length. Indeed the father instituted proceedings in January 2014 seeking extensive and specific parenting orders.

Court Orders

1. Orders were first made by consent on 3 March 2014. They provided for the father to spend time with [X] on three occasions each week, for three and a half hours on two occasions, and seven and a half hours on one occasion.

2. The Orders made on 3 March 2014 provided also for the father to have telephone and/or Skype communication with [X] at all reasonable times. On 28 July 2014, that order was discharged and in lieu thereof orders were made, again by consent, as follows:-

   “4.2 By telephone between 6.00pm and 6.30pm on the second day of any period where the husband does not spend time with [X] for two consecutive days, with the husband to initiate the call to the wife’s landline.”[1]

   And:-

   [1] Orders made on 28 July 2014 by Judge Stewart.

   “6. That for the purposes of telephone communication pursuant to these orders:

   6.1. each party shall provide the other party with a telephone contact number and prompt notice of any change;

   6.2 both parties shall ensure that the child is available for telephone contact during the prescribed telephone contact periods; and

   6.3 both parties shall permit the child to telephone the other parent as provided for in the Orders and at other times as the child may reasonably request or the parties agree.”[2]

   [2] Orders made on 28 July 2014 by Judge Stewart.

3. On 13 November 2014, phone communication was again altered to be between 6.30pm and 7.00pm each Thursday, with the father to initiate the call to the mother’s landline and the mother to facilitate [X] receiving the call. Time spent with was also altered on that day to include from 2.30pm until 7.00pm Christmas Day 2014 and to otherwise be as follows:-

   “2.2. From the week commencing 5 January 2015 until 16 February 2015:

   (a)     During week 1 of a 2 week cycle, for one half day mid week and from 8.30am until 6.30pm Saturday and Sunday.

   (b)     During week 2 of a 2 week cycle, for one half day mid week, and from 4.30pm Friday until 8.30am Saturday, and from 8.30am until 6.30pm Sunday.”[3]

   [3] Orders made on 13 November 2014 by Judge Stewart.

4. On 19 February 2015, the matter proceeded to trial and during such trial some matters were agreed and others required judicial determination. The Orders made that day were intended by the Court to operate for some time and pending the delivery of these Reasons. The Orders are set out in full herein:-

   “THE COURT ORDERS, BY CONSENT ON A FINAL BASIS, THAT:

   1. All previous orders be discharged.

   2. Each of the mother and father have equal shared parental responsibility of the child [X] born [omitted] 2012.

   3. The child live with the mother.

   THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

   4. The child spend time and communicate with the father as follows:-

   (a) by telephone twice each week between 6.30pm and 7.30pm with the father to instigate the telephone call and such call be for no more than 10 minutes in duration. Such calls are to not occur on the days where the child in his father’s care;

   (b) for six hours one day each week on a day selected by the mother with reference to the father’s roster such that he will not be at work. Such roster to be provided to the mother 45 days in advance of the relevant time by the father and be derived from the employer’s records and state the date, commencement and conclusion time of each shift to be worked by the father. Thereafter the mother is to notify the father at least 30 days in advance of her selection for time spent with;

   (c) for one overnight period each week from 4.30pm to 7.45am in the event the mother is working and otherwise to 12 noon. Such period again be referrable to the father’s work roster on the same terms as provided for in order 4(b) herein and likewise the day is at the mother’s selection;

   (d) commencing 1 October 2015 in Tasmania for three days and two nights in substitution for one week of time spent with and the father to be on leave. The father to select such time and provide the mother with 30 days written notice;

   (e) in Jan 2016 for four nights and five days in substitution for one week of time spent with and the father to be on leave;

   (f) upon the child commencing kindergarten in 2016 the time spent with is not to occur between 8.30am and 4.30pm on Tuesday and Thursday;

   (g) from 5.00pm the night before Father’s Day until 5.00pm Father’s Day if the child is not already in the father’s care;

   (h) for five hours on the child’s birthday at times as agreed in writing if the child is not already in the father’s care;

   (i) for five hours on the father’s birthday at times as agreed in writing if the child is not already in the father’s care; and

   (j) as agreed in writing or text between the parties.

   5. All overnight periods each week as provided for in order 4© herein are to occur with at least three days intervening.

   THE COURT ORDERS, BY CONSENT UNTIL FURTHER ORDER, THAT:

   6. The father spend time with the child from:-

   (a) 3.00pm Christmas Eve until 3.00pm Christmas Day 2015;

   (b) 3.00pm on Christmas Day until 3.00pm on Boxing Day 2016;

   and each alternate year thereafter.

   7. Changeovers to take place at kindergarten or school where possible and otherwise at the parties’ respective homes with the father to collect the child from the mother’s home at the commencement of time spent with and the mother to collect the child from the father’s home at the conclusion of time spent with.

   8. For the purposes of changeovers at the parties’ respective homes the parties shall send a text message to the other notifying them of their imminent arrival.

   9. The parties shall each inform the other as soon as is reasonably practicable of any serious injury or illness sustained by the child whilst in their care and provide particulars of any treatment required or received by the child, together with the name and address of the treatment provider and/or location at which the child is hospitalised.

   10. Each party shall provide the other party with no less than 14 days’ notice of any specialist medical appointments to be attended by the child, including the time and location of the appointment, and that both parties be permitted to attend the child’s specialist medical appointments.

   11. Each party shall make available to the other party any medication prescribed for the child for the other party to administer as prescribed or required.

   12. Each party is at liberty to contact the child’s day care, kindergarten or school (as applicable) to make arrangements to obtain copies of any newsletters, notices, permission slips, photographs and reports relating the child’s attendance at the relevant educational or care facility.

   13. Both parties are restrained by themselves, their servants or agents from discussing the Court proceedings with the child, or denigrating the other party or the other party’s family members in the presence or hearing of the child.”[4]

   [4] Orders made on 19 February 2015 by Judge Hartnett.

Consideration

1. For completeness sake, I refer now to the expert evidence that was before the Court, although I note the parties have taken heed of it and used such input to guide their discussions about [X]’s time with his father. Annexed to Dr E’s Affidavit sworn 11 February 2015 is his Psychiatric Assessment of the parties. Under the heading “Opinion” he states:-

   “1. Mr Mayne and Ms Jarvis present very differently. They contrast in their styles and values. Mr Mayne is a man of obsessive bent who is driven and focussed. Ms Jarvis describes him as mean, cruel, controlling and menacing. She sees him as lacking empathy and considers that he has a disorder, possibly Asperger’s or even Psychopathy. He suffers from neither of those conditions. Whilst he may be controlling, ordered and at times, intolerant, he spoke lovingly of [X] and appeared devoted to his role as his father. He is an [occupation omitted], a role he is eminently suited to by way of his intelligence and attention to detail. There are some indications of possible emotional deprivation in his younger years which is similarly likely to have spurred him on to reach the heights that he has. Quite possibly Ms Jarvis’ account of him being intolerant of her various emotional needs and displays (sic) may reflect aspects of his early years and lack of warmth and attention. Mr Mayne spoke of these matters and appears to have developed some insight as to the overly driven, highly expectant aspects of his personality. Nonetheless his presentation is not consistent with the dark figure that Ms Jarvis described and her account of his depressive reaction following [X]’s birth lacked empathy and compassion. As indicated, he does not suffer a psychiatric condition which represents a risk to [X].

   2. Ms Jarvis’ presentation was consistent with that as someone functioning at a considerably younger emotional age than her chronological age of 36. She had some difficulties with the early aspects of the assessment but with guidance, was fully compliant. As indicated, she is someone who views the world through the prism of her emotions and romantic notions. Her only previous relationship was to a man who she experienced in a similar way to Mr Mayne, i.e., controlling and lacking compassion. Ms Jarvis is likely to have inherited aspects of her mother’s tendencies towards anxiety. Following graduating from school, she had some difficulty in deciding what she was going to do, eventually choosing teaching. Her various experiences of developmentally delayed pupils (Asperger’s syndrome) aligned with her perception of Mr Mayne (lacking empathy, rigidity) on the basis of her needs not being met in the context of their relationship. Her experience of that and [X]’s birth and subsequent surgery I believe has been very difficult for her and she is still left with the remnants of an Anxiety Disorder as a result. To a large degree, her symptoms are settling but she still lacks insight as to the nature of adult relationships, preferring the view that at all times she needed to be respected and cared for. She is now aged 36 and it is not clear whether her delayed level of insight will change over time. Certainly psychological treatment appears if anything to have only cemented her various views. Thankfully she has ultimately agreed that [X] needs his father, though there is likely to be certain resistance to the degree that his father’s presence may ‘influence’ him in the future.”

2. Ms D entirely concurred with Dr E’s opinion as to each of the parents. She described the father as displaying “commitment, insight and responsibility as a father”. She noted [X] was attached to both parents and his observed behaviour, age-appropriate. She said as to time spent with between [X] and his father moving forward:- 

   “At 2 years 2 months [X] is still consolidating his primary attachments. It is important not to implement routines that impact on the child's need for the emotional security, reliability, and predictability of routine.”[5]

   And:-

   “At his age [X] is probably not yet ready for an overnight stay with his father. He is ready for as much day time as possible, at a minimum the current 3 times each week, maybe with an increase in the number of hours.”[6]

   And further:-

   “79. It is suggested that [X]’s time with his father increase during the day only at this time; possibly to 2 full days each week with a finishing time of 6.00pm, plus 1 half day.

   80. It is also suggested that later the parents give some consideration, either through mutual discussions or with professional support, to attempt 1 overnight on a regular basis and to monitor the success or otherwise of it. There may be opportunities during the summer and prior to [X]’s third birthday to implement this.

   81. Once the child turns 3 years a phased-in, incrementally increasing routine can be implemented.”[7]

   At interview with Ms D, the mother described [X] as having a “really good relationship” with his father and that he was happy to see his father. Ms D found Mr Mayne to display good will toward the mother, as [X]’s mother, and in relation to the good care she provided to [X]. The parties were guided by Ms D’s report throughout 2014 but were still unable to agree on final orders in early 2015.

   [5] Affidavit of Ms D sworn 12 February 2015, annexure ‘DD1’ at [73].

   [6] Affidavit of Ms D sworn 12 February 2015, annexure ‘DD1’ at [76].

   [7] Affidavit of Ms D sworn 12 February 2015, annexure ‘DD1’ at [79] to [81].

3. The father has a 24 hour/ 7 day work roster which includes shifts at any time in any week. In June 2015, he shall commence at [omitted] which is considerably closer to the parties respective residences than [T]. His evidence is that he cannot accommodate a fixed arrangement with regards to seeing [X]. Whilst he agrees that routine and consistency will provide stability for [X], and be in his best interests, he can only provide that in terms of frequency a week, rather than on fixed days in a week. The father also has limited capacity to swap times with co-workers in the roster, not only because of the exercise of personal choice, but because of fatigue risk management systems in place at the work place. His evidence is further regularity of time spent between [X] and his father is not a “good thing” where its effect is to reduce the contact he has with his son. He can, he agreed, provide 45 days’ notice in writing of the requirements of his roster to the mother, for her consideration. . He also agreed, late in the proceedings, that the mother could select, with reference to his roster, the times at which he would see [X] in the context of times ordered by the Court.

4. [X] attends swimming lessons on Tuesday morning, the [T] Early Learning Centre on a Wednesday when his mother works, playgroup on Thursday morning, and a mother’s group at 9.30am on Friday morning in each week. The mother describes [X] as a “really social child” and as he is an only child, the mother fosters [X]’s engagement with other children. Indeed, both parties agree [X] is sociable, articulate and bright.

5. Commencing 2016, the mother is seeking full-time work. [X] will be attending kindergarten and is booked in from 8.30am to 4pm on each of Tuesday and Thursday. It is the mother’s proposal he continue his placement at the [T] Early Learning Centre on Wednesdays. She would like, therefore, for the father to spend time with [X] on a Friday and a Monday, and to have a sharing of weekend time with [X] between them. Further, the mother seeks a consistent time each fortnight for [X] to be with his father. But this is not all possible.

6. The mother desires less negotiation and discussion with the father about [X]’s movement between them. Her evidence is that extensive communication between the parties has hindered their progression forward. Having observed them both in the witness box, and listened to their evidence, it is not difficult to understand that they are very different people, for whom communication with each other is vexing and so should be minimalised.

7. The mother argues that the father is as described by Ms D, that is, he has commitment and dedication to [X], but she claims he has no capacity to put [X]’s interests above his work. Perhaps that is better stated as not being able at times to recognise that [X] may have difficulty in adjusting to the demands of the father’s work roster with the frequency sought by the father. The mother claimed that three periods of time spent with a week is too much for [X], and that the long weekend days provided for in earlier orders, were too long for the child. In addition, she wished to spend time with [X] on the weekends so that they might interact with her family. Ultimately, at trial the parties agreed on four occasions of time spent a fortnight.

8. The father wishes to telephone [X] three times each week and to have the mother return any unanswered call on the day on which it was made. The father was unable to specify on which days he would call. This proposal provided no certainty for [X] and the mother, and was onerous to the mother, in particular given the parties relationship. The father will see [X] twice each week and can reasonably call on a further two days in each week, at his convenience. If he fails to have contact with [X] because the mother and child are unavailable, he can telephone the mother to speak with [X] on another night. This ensures sufficient frequency of time for [X] and the father without causing upheaval in the mother’s life. Further, [X] should be able to call each of his parents if he indicates a desire to do so in circumstances where it is practicable, and the other parent will be available to take the call. It is not possible, nor appropriate, at [X]’s now age to make an order concerning that, but it is something the parties could be mindful of as [X] develops.

9. When [X] is in his father’s care for any period that exceeds two days then, I shall order that, the mother is at liberty to telephone the father to speak with [X] at all reasonable times, she being [X]’s primary attachment figure still and, I am satisfied, being reasonable in her approach to telephone usage when the child is in the other parent’s care.

10. It was sensible of the parties, at trial, to agree that the mother should select the father’s availability as it best fits in with [X]’s needs for time to be spent with. The Court shall specify the duration of those times each week. I am mindful that [X] is still young and primarily attached to his mother. Hence a period, on a regular basis, in excess of 24 hours at this stage in his development would be problematic, and not promote his best interests. However, upon turning four years of age and having completed his second kindergarten term, a 48 hour period in a fortnight will be beneficial to him. The difficulty is the uncertainty of the father’s roster. Any 48 hour period should not include every weekend, and otherwise it should cater to [X]’s important structured activities, being kindergarten essentially. I propose at the father’s election, that each second week he could spend time with [X] on one occasion in the week of 48 hours so long as [X]’s usual kindergarten activities were continued, and the mother was not denied caring for [X] each second weekend. This is beneficial to [X] as it allows him the extended family and other activities the mother can offer on a weekend, whilst providing extended time to the father to engage in further activities including extended family activities on his side.

11. It is not possible to make orders beyond [X] commencing school in 2017 as at that time [X]’s school attendance five days a week will take priority, and the lack of consistency in the father’s working hours will cause further difficulty. Of course the father may by then have extensive leave accrued which he can apply to provide a degree of certainty in the initial stages of [X]’s transition to school, but that is for consideration by the parties on another day.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  27 May 2015