MERRILL & BOUCHARD

[2015] FamCA 1011

FAMILY COURT OF AUSTRALIA

MERRILL & BOUCHARD [2015] FamCA 1011

FAMILY LAW – CONTRAVENTION – Parenting – Where final orders were made by consent in 2011 – Where the father brings an application alleging that the mother contravened the final orders – Where the mother currently has an application pending in the proceedings where she seeks to vary the final orders – Where it is found that the mother contravened the final orders without reasonable excuse – Whether the Court should make an order varying the primary parenting order.

Family Law Act 1975 (Cth)

Childers & Leslie (2008) FLC 93-356
Elspeth & Mr H; Mark & Mr H and John & Mr H [2007] FamCA 655

APPLICANT: Mr Merrill

RESPONDENT: Ms Bouchard

INDEPENDENT CHILDREN’S LAWYER: Jane Corcoran

FILE NUMBER: CRC 281 of 2008

DATE DELIVERED: 18 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 22 September and 12 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Priestley of Senior Counsel

SOLICITOR FOR THE APPLICANT: Sydun & Co Solicitors

COUNSEL FOR THE RESPONDENT: Ms Carty of Counsel

SOLICITOR FOR THE RESPONDENT: Michelle Harding Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew of Counsel

(appeared on 12 October 2015 only)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales
(appeared on 12 October 2015 only)

Orders

IT IS DECLARED

1. That in January 2014, the mother contravened paragraph 5 of the Orders of Federal Magistrate Jarrett (as his Honour then was) of 11 March 2011 without reasonable excuse.

2. That on 13 October 2014, the mother contravened paragraph 3 of the Orders of Federal Magistrate Jarrett of 11 March 2011, as varied by paragraph 27 of that same Order, without reasonable excuse.

3. That on 18 October 2014, the mother contravened paragraph 8 of the Orders of Federal Magistrate Jarrett of 11 March 2011 without reasonable excuse.

IT IS ORDERED

1. That the mother shall pay the father the sum of $2,722 in compensation for expenses incurred by him as a result of her January 2014 contravention of the primary Order.

2. That paragraphs 1 and 2 of the parenting Order made by his Honour Judge Kemp of the Federal Circuit Court on 14 April 2015 are discharged.

3. That paragraphs 3, 5, 6–14, 17, 19 and 25–29 of the parenting Order of Federal Magistrate Jarrett of 11 March 2011 are discharged but, for clarity, all other paragraphs of that parenting Order remain in force.

IT IS FURTHER ORDERED, UNTIL FURTHER ORDER

1. That the child, B born … 2004 (“the child”), shall live with the father from the date of this Order.

2. That to facilitate the transition of the child to the care of the father as provided for in paragraph 4 hereof, the mother shall deliver the child to the father by delivering her, firstly, to the Independent Children’s Lawyer who shall inform the child of the Court’s determination and of this parenting Order, such process to be undertaken by the Independent Children’s Lawyer, at her discretion, in conjunction with Mr C, the psychologist who has been working with the family and who gave evidence in the proceedings, and the Independent Children’s Lawyer shall then facilitate the transition of the child into the father’s care.

3. That for a period of two weeks from the date of this Order, the child shall not communicate with the mother.

4. That until the conclusion of the current school year, the child shall not spend any time with the mother and the mother shall not approach the child, encourage the child to approach her, attempt to speak with the child or communicate with the child in any way whilst the child is going into school, is at school, or is leaving the school grounds.

5. That after the commencement of the 2015 – 2016 Summer school holidays the child shall spend time with the mother from 4:00 pm each Tuesday until 4:00 pm each Wednesday until school resumes in 2016 and at any other time that might be agreed between the father, the Independent Children's Lawyer and the mother.

6. That after the commencement of school in 2016, the child shall spend time with the mother from:

   (a)after school on Friday until school starts on the following Monday, every second weekend during school term, commencing after school on the second Friday of term with the mother to collect the child from school on the Friday afternoon and to return her to school on the Monday morning; and

   (b)at any other time that might be agreed between the father, the Independent Children's Lawyer and the mother;

   and the mother shall not otherwise approach the child at her school without the prior agreement of the father, the Independent Children's Lawyer and the child’s school Principal.

7. That from the commencement of the school holidays at the end of first term in 2016 the child shall also spend time with the mother during each school holiday period from after school on the last day of term until 4:00 pm on the day on which the mid-point of the school holidays falls (the holidays being deemed to commence at midnight at the end of the last day of school for the child and to conclude at midnight at the beginning of the first day of school for the child) and if the mid-point of the school holidays falls at midnight on any particular day then transition of the child between the parents is to be at 4:00 pm prior to that midnight mid-point and not the day after.

8. That commencing on Thursday, 3 December 2015, the child shall communicate with the mother by telephone each Thursday and Sunday night that she is not in the mother’s care by a telephone call made to the mother’s mobile telephone number by the child, facilitated and encouraged by the father, at 6:30 pm  with such call to be up to a maximum of 20 minutes in duration, at the discretion of the mother and the child, and with the father to give the child privacy for the duration of such calls.

9. That the Independent Children’s Lawyer, in conjunction with Mr C, continue to monitor compliance with this parenting Order, including, in particular, by Mr C continuing to see the child and the father, separately and together, for family therapy sessions at such intervals as Mr C and the Independent Children’s Lawyer direct with any cost of such sessions not met by Medicare to be met by the father, with the father to attend such appointments and ensure the child attends such appointments as directed by the Independent Children's Lawyer and Mr C.

10. That from the time that the child commences to spend time with the mother again pursuant to this parenting Order, the mother may again be involved in the family therapy conducted by Mr C as determined by the Independent Children’s Lawyer and Mr C and she shall attend such appointments as she may be directed by the Independent Children’s Lawyer and Mr C with any cost of such sessions involving the mother alone not met by Medicare to be met by the mother and any cost of such sessions involving the child and the mother not met by Medicare to be met equally by the father and the mother.

11. That other than as provided for herein, all transitions of the child from the care of one parent to the care of the other parent that do not take place at the child’s school shall take place at the D Credit Union.

12. That the mother shall provide the father with an email address to which he can send her emails, and thereafter, at least once every week, the father shall send the mother an email in which he informs her of matters pertaining to the wellbeing of the child in that week, including matters relating to her health, education, extra-curricular activities, social life, places she has visited, people she has spent time with and such things. 

13. That the Independent Children's Lawyer shall have liberty to apply to the Court to have the matter listed before his Honour Justice Forrest on an urgent basis for the consideration of the making of any further Orders that she might consider necessary from time to time.

14. That pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), the Independent Children's Lawyer shall cause a copy of this parenting Order to be provided to the Principal of the E School F Town.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merrill & Bouchard 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 BRISBANE

FILE NUMBER: CRC 281 of 2008

Mr Merrill

Applicant

And

Ms Bouchard

Respondent

REASONS FOR JUDGMENT

1. The decisions that have to be made in this Court are rarely easy. The decisions to be made in this matter are amongst the most difficult the Court must make.

2. The parents of 11 year old B have been in conflict with each other about the co-parenting of their child since they separated in early 2007. Their parenting dispute has been before the family law Courts, on and off, since 2008. Orders purporting to be final parenting Orders have been made on two occasions – in October 2009 and in March 2011 – each time, with the consent of the mother, the father and an Independent Children’s Lawyer.

3. The 2009 Orders provided for the child to live with her mother, as she had been doing since her parents separated, and to spend alternate weekends (Friday to Monday) and one other overnight period in the same fortnight with her father. They also provided for her to spend equal time with each of her parents during school holiday periods.

4. Less than a month before those Orders were made, the mother had admitted to the Court on the hearing of a contravention application brought by the father, that she had contravened existing interim parenting Orders without reasonable excuse and Orders providing for compensatory time with the father were then made by consent.

5. A few days before the 2009 final parenting Orders were made by consent, the father had filed another contravention application. It was listed to be heard with the substantive proceedings that were listed for hearing soon thereafter. The trial did not proceed as the matter was settled and final Orders were made by consent. The father’s contravention application against the mother was dismissed as part of the compromised outcome. The mother was represented at that time by very experienced family law counsel and solicitor.

6. Those final Orders were comprehensive. They dealt with many issues. They also imposed restraint upon both parents in respect of the use of physical discipline on the child, as well as restraining the father from consuming alcohol “to excess” from twelve hours before the child was to spend time with him until the end of her time with him.

7. They also imposed restraint upon the parents from “making any further allegations against each other to any authority except for the Independent Children’s Lawyer for a period of that Independent Children’s Lawyers [sic] appointment.”

8. The father filed another contravention application in April 2010 as well as a further application initiating fresh parenting proceedings. The contravention application was finalised when the mother, the father and the Independent Children’s Lawyer consented to further interim Orders being made in May 2010.  Those Orders provided for the child to spend a lot of time in the father’s care.

9. The fresh parenting proceedings were set for trial again in March 2011. Again, the mother and the father were represented by counsel and solicitors very experienced in the practice of family law. There was, again, an Independent Children’s Lawyer, (the same one as in the previous proceedings) represented by counsel.

10. That trial commenced, but yet again the competing applications were compromised by the parties, this time part of the way through the trial. Those March 2011 Orders most notably provided for the child to live in an almost equal time arrangement with her parents during school term for a year, increasing to an equal time, week about arrangement, in March 2012. They also provided for her to live with each of her parents in blocks of half of each school holiday period. The Orders restrained the mother from being at the child’s school at the time the father was collecting or delivering her from or to school. They also provided for the child “to be able to attend counselling” with a named counsellor for a period determined by that counsellor. They also provided for the parents to attend a parenting program presented by a local provider of same.

11. Despite those Orders being made by consent, problems between the parents continued. The father filed another contravention application in November 2014 soon after the mother failed to deliver the child to his care in accordance with the 2011 Orders. That is the one I am determining now, about a year after it was filed.

12. Earlier this year, before that contravention application was heard, the parties consented to Orders that suspended the operative effect of the 2011 Orders and put in place some further interim arrangements in respect of the child’s time with the father. The proceedings were transferred to this Court by a Judge of the Federal Circuit Court and the hearing of this application was only able to be accommodated with a listing before me, here in Brisbane, on 22 September 2015.

13. The child has only spent time with the father in the last twelve months on a couple of occasions at a children’s contact centre in G Town, near where the mother and the father live. The mother has in recent months filed an application seeking variation of the existing 2011 final Orders. Those proceedings remain pending, with an Independent Children’s Lawyer (the same one again) once again having been made a party, another family report to be obtained, and a psychologist in G Town currently undertaking what might be described as a process of family therapy, apparently intended to reintroduce the child to her father.

14. In the meantime, the hearing of the father’s contravention application against the mother proceeded on 22 September 2015 before me. Both the mother and the father were again represented by counsel and solicitors experienced in the practice of family law. The father proceeded with three particular alleged contraventions. The mother defended them all, acknowledging that the primary Orders had not been complied with, but asserting that she had reasonable excuse for her contravention. The father made it clear from the outset of the hearing that as an outcome in the proceedings he was seeking Orders from the Court that the child be placed in his principal care pending the final determination of the fresh parenting Orders proceedings.

15. Clearly, much is at stake for this eleven year old girl.

A little more history

1. These two parents got together as a couple in late 2002 and married in 2003. At that time the mother was around 40 years of age, had been married before and had five children – the eldest three with one former partner and the younger two with another former partner. The father was about 37 years of age and had also been married before, but with no children.

2. The eldest four of the wife’s children are now adults. The youngest of the mother’s children, other than the subject child, is 14, nearly 15 years of age. The eldest three had and continue to have relationships with their father whilst the fourth and fifth of the mother’s children did not continue to have relationships with their father after their mother’s separation from him. I am not aware of the current status of their relationships with him.

3. The subject child, the child, was born to the marriage of the mother and the father in 2004. The family lived in the G Town region of that State.

4. There is no real dispute between the parties that their relationship experienced tumult and unhappiness. The evidence establishes that the father was suffering from mental health problems, later accepted as being related to trauma experienced in his employment. During their relationship, he consumed alcohol to excess and suffered from symptoms of depression and anxiety. The mother alleges that she suffered abuse and family violence at the hands of the father. One particular incident was focused upon in evidence at the hearing. There was some dispute about the factual circumstances, but I am satisfied that it is more probable than not, that on one occasion during their relationship, at a time during the mother’s pregnancy with the child, B, the father became angry and annoyed after he dropped home one day in the middle of the day whilst working a shift. I am satisfied that on that occasion he lost control of himself, pulled a pistol from its holster, waved it around and pointed it at his head, saying words to the effect of “I may as well kill myself”.  

5. I have no doubt that this incident caused the mother to be terrified and afraid for herself, their unborn baby and her three year old child, who was also present. It would have been a frightening, worrying experience for the mother. There can be no doubt about that. Whilst mental health issues the father was experiencing at the time make consideration of such matters more complicated, any family violence directed at the mother by the father when they were together, or at any time, is inexcusable. I can make no other findings though about other incidents, evidence about any such incidents not being adduced.

6. Whilst the mother now gives evidence that the father pointed the pistol at her and her three year old daughter during that particular incident, I am not sufficiently satisfied to make a finding that he did. A Notice of Risk of Child Abuse filed in the Federal Circuit Court early in the proceedings by the experienced solicitor who was acting for the mother at the time referred to the particular incident but did not include any assertions that the father had pointed the gun at the mother or her three year old daughter. If the father had pointed the gun at the mother or her daughter, I expect the mother would have told her solicitor. If the mother had given her solicitor instructions that the father had pointed the gun at her or her daughter, I consider that such an assertion would have been included in that filed Notice.  That there is no such assertion in the Notice causes me to seriously doubt that the incident happened as the mother now says it did.

7. In any event, some four years after that incident with pistol, the relationship ended very unhappily for the mother and the father and it has never recovered. At the hearing before me, the mother presented as a woman harbouring very deep resentment towards the father, unwilling to make any effort to improve their relationship, repeatedly citing ongoing fear of him for her clearly stated inability to communicate with him.

8. Some of this might be explained by her experiences of him during their time together as well as her experience of communicating and co-parenting with him since their separation. However, it also came out in evidence at the hearing before me that the mother alleged back in 2008 that the child, at four years of age, had disclosed to her that the father had touched her genital area when she was staying over with him. There was evidence that the mother had notified the NSW Department responsible for child welfare, as well as the police, of these allegations. There was evidence that both authorities had investigated the matter  with no charges being laid against the father by the police and no action being taken by the Department in terms of child protection or intervention by the Director-General of the Department in the parenting proceedings that were before the Federal Circuit Court.

9. As I have already observed, when represented by experienced counsel and solicitors, on two separate occasions when a trial of competing parenting orders applications was taking place in the years since that allegation was first made by the mother, she consented to parenting Orders being made that provided for the child to spend unsupervised time with the father and, ultimately, for the child to live week about in an equal time living arrangement between her mother and her father.

1. Without evidence to the contrary, implicit in the mother’s consent to those Orders providing for that parenting regime, in my judgment, is an acceptance, on each occasion that her consent was given to the Federal Circuit Court, that the child did not face an unacceptable risk of being sexually, physically or emotionally abused in her father’s unsupervised care.

2. The child is now eleven years of age. Apart from reference to the maternal grandmother allegedly having heard the disclosure to the mother, there was no evidence before the Court that the child has told any other person, either back when the first disclosure was said to have been made or since then, including, more particularly, over the last two years, that she remembers the father touching her in a way that would be considered sexually inappropriate, or physically abusive of her. In fact, there was evidence adduced from the psychologist who has been conducting the ‘family therapy’ since July this year on the instruction of the ICL, that the child:

…denies any physical abuse, fears of physical abuse, emotional abuse, fears of emotional abuse or any specific memories which have caused her distress.

1. I am satisfied, however, that the mother would have the Court accept that she still believes that the father has touched his child in a sexually inappropriate way, either when she was around five years of age, or at some time since then. I consider the mother effectively expresses the view, although not expressly coming out and saying it, that this is the probable explanation for the child’s behaviour that the mother relies upon to found her claim of “reasonable excuse” for contravention of the 2011 parenting Order that she consented to.

2. If the mother truly believes the father sexually abused the child when she was little, even though she later consented to the child living equal time in his care, then her behaviour towards him in respect of their co-parenting relationship is more easily understood, particularly when considered in conjunction with the likely impact upon her of the unhappy circumstances of their marital relationship. However, it is insufficient, in my judgment, to simply consider whether a parent truly believes the other parent has sexually abused their child in order to determine whether that parent has a “reasonable excuse” for contravening a parenting Order that provides for their child to live with or spend time with the other parent. I consider that there must be consideration of all of the evidence adduced with there being, ultimately, an objective determination of the rationality of any such belief as part of the determination of the “reasonableness” or otherwise of the parent’s behaviour in contravention of the Orders.

3. In a case like this one, that will necessarily include consideration of all of the evidence about matters leading up to the contraventions that are admitted, but for which “reasonable excuse” is claimed, as well as the matters that have occurred since, particularly where the child has spent little or no time with that other parent since the time of the contravention[1].

The Specifics of the Contraventions

[1]See the discussion about inferences about facts relevant to a contravention drawn from findings about ex post facto events by Warnick J in Childers & Leslie (2008) FLC 93-356 at [36]-[44].

The first count

1. The first of the three contraventions that the father prosecutes in this application in chronological terms occurred in the 2013/2014 New South Wales Summer school holidays.

2. Paragraph 5 of the primary Order of Federal Magistrate Jarrett (as Judge Jarrett then was) of 11 March 2011 provided for the child to:

   [S]pend half of each school vacation period with each parent as agreed and failing agreement to be with the father in the first half of the holidays in even numbered years and the mother in the second half of even numbered years and alternating in odd numbered years.

3. The father gave unchallenged evidence that on Wednesday 8 January 2014 he sent the mother a mobile telephone text message that read:

   Hi [Ms Bouchard]. Just confirming that changeover is at 3:30 pm this Friday 10 January 2014 at BCU [the place provided for in the Orders for changeover when changeovers did not take place at the child’s school]. That equates to 20 days in your care, and 19 days in our care. Cheers, [Mr Merrill].

4. The father’s evidence was that the school holidays had commenced on 21 December 2013 and concluded on 28 January 2014 – a total of 39 days. If that was correct, and it was not challenged, in fact handover on the afternoon of 10 January 2014 would have the child with the mother for 21 days and with the father for 18 – slightly less than half the holidays.

5. In any event, the father’s evidence is that he had not heard anything from the mother about the proposed handover on Friday 10 January 2014 so, at 10:18 am on Friday 10 January, he sent another text message to the mother’s mobile telephone number that read:

   Hi [Ms Bouchard], Just a reminder that changeover is at 3:30 pm today Friday 10 January 2014 at BCU. Cheers, [Mr Merrill].

6. The father’s evidence is that he then received a telephone text message from a number that was not known to him that said:

   HI [MR MERRILL],,,,, [Ms Bouchard] AND KIDS ARE AWAY TILL TUESDAY AND WILL CONTACT U THEN…

7. The father’s evidence is that he replied:

   Who is this? the child is due today.

8. The father says he received no reply, so he called the telephone number from which the text message had come and got through to the Voicemail message identifying the number as being “Mr H’s” number. The father says that he was aware at the time that the mother’s boyfriend’s name was “Mr H”. He clearly assumed that the phone belonged to the mother’s boyfriend, Mr H. He says he left a message, asking for Mr H to contact him, but he received no call or text from Mr H in response.

9. The father says he called the mother’s mobile telephone number again at 2:50 pm on Friday 10 January 2014 but it was not answered and went through to the message bank. He says he left a message telling the mother about the text message he had received from Mr H about her and the kids being away until Tuesday and reminding her that she was to hand the child over to him for her holiday time with him that day at 3:30 pm. He told her that he considered her to be in breach of the Orders if she held the child until Tuesday and told her he “would appreciate it” if she called him back to tell him herself of her intentions.

10. The father says he received no call and then sent another text message to the mother’s number at 3:25 pm that same day, Friday 10 January 2014, informing her that she would be in contravention of the Orders if she did not hand the child over to him that afternoon and asking her to tell him where the child was and what the mother’s intentions were. He says he received no reply from the mother.

11. The father says he attended at the BCU at 3:30 pm that day, Friday 10 January 2014 and waited for an hour. He says the mother did not attend at BCU that afternoon to hand over the child.

12. The father says he sent the mother another text message at 8:30 pm that night asking to speak with the child. He says he received no reply.

13. The father says that on Monday 13 January 2014, not having heard anything from the mother, he sent another text to her asking her to inform him of her intentions about handing the child over to his care the next day, Tuesday 14 January 2014. That was clearly referencing the message he had received from Mr H the previous week telling him that Ms Bouchard and the “kids” were away until Tuesday. The father says he received no reply.

14. The father says he sent another text to the mother that Monday night indicating his intention to collect the child the next day. Having heard nothing from the mother, the father says he attended BCU at 3:30 pm on Tuesday 14 January 2014 and waited for 30 minutes. He says the mother failed to attend and deliver the child to him or to contact him.

15. The father says he then went to the local police station and spoke to a police officer “who has knowledge of the matter”. He says that police officer called the mother and left a message on her voicemail as follows:

This is a message for [Ms Bouchard]. It’s Senior Constable [J] from [F Town Police]. I have [Mr Merrill] here with me and he is wanting to know if you intend returning the child to him today as they have a holiday booked and paid for. Can you give me a call when you receive this message? Thank you.

1. The father says as he was returning home, he received a missed call message from the police officer. He went back to the local police station and spoke with her. He says the police officer told him:

   I haven’t got very good news I’m afraid. [Ms Bouchard] rang me back and said that she wasn’t bringing [the child] back for the rest of the holidays.

   She said [the child] is stressed and she is taking her to see a child psychologist. I told her she was likely to be in breach of family court orders, but she was adamant.

2. The father then caused a solicitor to write a letter to the mother on Thursday 16 January 2014. The letter pointed out that the child was to commence spending school holiday time with the father from 10 January 2014. The letter pointed out to the mother that she was in contravention of the Order since that day and that she had not communicated with the father. The letter pointed out to the mother, again, that the father had booked and paid for a holiday for the child with him and that if the holiday did not occur the father would hold the mother responsible for his loss. The letter proposed changeover take place on Friday 17 January 2014 at midday. The letter pointed out to the mother that non-compliance would result in contravention proceedings in which the father would seek, amongst other orders, an order compensating him for his loss and expenses due to the mother’s contravention.

3. The father says his solicitor told him that he had also spoken to the mother’s solicitor that same day, who confirmed the mother had received the letter. The father says that to his knowledge there was no response by the mother or her solicitor to the matters raised in the letter.

4. The father says he turned up at BCU at midday on Friday 17 January 2014 and waited for 3.5 hours. He says the mother failed to attend or to contact him. 

5. The father says that on Sunday 19 January 2014, he and his partner embarked on a boat cruise from Sydney to the Whitsundays and back to Sydney (wholly within Australian waters) without the child and her friend who the father had arranged to accompany them. The father says that he next saw the child on Monday 3 February 2014 when he collected her from school for her to stay with him for the week pursuant to the existing parenting Order. He says that the child ran to him and gave him “a great big hug and smiles at the school gate.” He says “she looked so happy to see us”.

6. The father says that to 14 November 2014, when he swore his affidavit, he had never received any explanation from the mother as to why the child was not presented to him for that holiday period other than what he was told by the police officer in January 2014.

The second count

1. The next alleged contravention is said by the father to have occurred on Monday 13 October 2014.

2. Paragraph 3 of the primary Order made 11 March 2011 in effect at the time relevantly provided as follows:

   The child live with the mother and father as agreed and failing agreement the following order apply:

   a.During school terms, the child is to spend time with the father each alternate week from after school on Tuesday to before the commencement of school on Monday;

   b.On each occasion outlined in order 3 a. hereof, the father or his nominee shall collect the child from school.

3. Paragraph 27 of that same primary Order also relevantly said:

   At the conclusion of 12 months from the date of these orders, order 3 be varied to read;

   a.During the school terms, the child is to spend time with the father each alternate week from after school on Monday to before the commencement of school on the following Monday, unless the Independent Children’s Lawyer considers it not in the child’s best interests.

4. The father’s case is that pursuant to those Orders, the child was to transition into his care after school on Monday 13 October 2014. There was no issue taken by the mother with that part of the father’s case.

5. The father says that Monday 13 October 2014 was designated as Grandparents’ Day at the child’s school and, accordingly, his mother and her partner (the child’s paternal grandmother and paternal step-grandfather), who were visiting the father went with him and his partner to the child’s school on that Monday morning.

6. The father says they all arrived at the school at 9:30 am and he was then told by school staff that the child was not there at school and that no message had been received from her mother.

7. The father says that at around 9:40 am he and his family members were standing on the lawn outside the church at the school when the mother’s motor car drove slowly past the school. He says he saw the mother driving and looking straight at him and his family and that he saw the child in the front passenger seat looking towards him and his family. He says the mother just continued driving around the corner and out of sight.

8. The father says the mother and the child did not arrive at the school after that and at 10:30 am he attended at the school’s administration office where he was told by the office secretary that she had just received a telephone call from the mother who told her that the child would not be attending school that day as she was not feeling well. He says he and his family then left the school and went home.

9. The father says that he received a text message from the mother at 1:50 pm that day, saying:

   Hi [Mr Merrill], the child has a medical certificate to stay at home with me this week

10. The father says he was “due to collect the child after school that day in accordance with the usual regime of equal shared time” and that he sent a text to the mother straight away saying:

    Hi [Ms Bouchard]. Do you understand that you will be in further breach of court orders if you do not have her for changeover this afternoon? What is her medical condition? Regards [Mr Merrill]

11. The father says he received no reply. He says he sent another text message to the mother in which he made it clear that he did not consider that a medical certificate “overruled the Court Order” and told the mother that he expected to be able to collect the child from the school at 3:15 pm that day. The father says he received no reply.

12. The father says he attended at the school at 3:15 pm but the child was not delivered to him.

13. The father says that the next day he was told by the school Principal that the child was not at school and the school had a medical certificate from the mother that just said ‘medical condition’. The father says the child did not attend school for the entire week.

14. The father says that he instructed his solicitors to write to the mother and her solicitors that week informing them that he considered the mother was contravening the Court Order that the child live with him that week. He says no response was received by him or his solicitor.

15. The father later obtained from the school, a copy of a note provided by the mother to the school from Dr K, the GP who had been seeing the child. It was dated 10 October 2014 and said:

    This is to certify that [the child] is unwell and suffering from a medical condition. She will be unable to attend school from 10/10/14 to 17/10/14 inclusive.

16. The child was also due to be with the father on her birthday in 2014. The father says he had planned a birthday celebration for her on the Sunday of that weekend and that the mother was aware of that. The father says the child was happily planning the birthday celebration at his place and had asked him to build a tree house at his home so that she could play in it with her friends that she would invite to her birthday party. He says that he set about building it as she requested. He says that she had asked him if she could invite some friends for a sleepover in the tree house on the night of the party. The father says that he had agreed and arranged for one of the child’s closest school friends to sleepover with the child in the tree house the night before the birthday party and that the child was very excited about it, saying that she could not wait.

17. The father says that before the party during the week that the child was in her mother’s care, he attended at her school at lunchtime and delivered invitations to the child so that she could hand them out to her friends, as he says she had previously requested. The father says she was happy to see him and his partner and when she checked the invitations she said “thanks Dad, they’re great”.

18. The father says that after that date he started receiving responses from the parents of the child’s friends informing him that their daughters would be attending the birthday party.

The third count

1. The father alleges that the mother contravened the primary Order by not allowing the child to spend time with him on the child’s birthday.

2. Paragraph 8 of the primary Order says:

   On the child’s birthday, the party with whom the child is not living with [sic], will spend time with the child from 3:00 pm until 6:00 pm if the birthday falls on a school day and 12 noon to 6:00 pm if the birthday falls on a non school day.

3. According to the evidence, the child was meant to be with the father on her birthday in 2014 pursuant to the Order and was therefore, pursuant to the Order, to go back to her mother for the period between 12 noon and 6:00 pm.

4. The father says, in circumstances where the child was still with the mother although she was supposed to be with him, he called the mother’s home at 9:16 am on the day. He says the mother answered and said “hello”. He says he then said “Hi [Ms Bouchard], it’s [Mr Merrill]. How are you going? I’m just ringing up to speak to the child for her birthday. He says she said “umm, yeah, I’ll just see if she wants to come.” He says he said “thank you” and then within a few seconds the call was terminated.

5. The father says he immediately called the mother back and the phone then went through to the voicemail. He says he left a message asking the mother to call him back so that he could speak with the child for her birthday. He says he received no reply until a few minutes later when the mother sent him a text saying “I’m sorry I asked her but she didn’t want to talk I can’t make her”.

6. The father says he then sent another text to the mother in which he asked her if she intended returning the child to him that night at 6:00 pm in accordance with paragraph 8 of the Orders and informing her that he was waiting to celebrate her birthday. He says he received no reply.

7. The father says he sent another text message to the mother at 1:44 pm on that day, asking what the mother was intending to do with the child at 6:00 pm and asking her to let him know.

8. The father says he received a text message from the mother at 4:48 pm that same day which read:

   No I want [sic] be doing changeover the child doesn’t want to go to your house and will not talk on the phone.

9. The father says he did not get to see or speak with his daughter that day, her 10^th birthday.

Some other evidence

1. Senior Counsel for the father tendered into evidence at the hearing, a DVD containing various video recordings of the child spending time with her father, his partner, her paternal grandmother and her friends whilst in the father’s care at various times throughout 2014. In particular, the DVD contained video recording of the child frolicking with the father, his partner and the paternal grandmother in snow in the Snowy Mountains on 22 September, during her time with the father during the September – October school holidays of 2014, just a few weeks before 13 October when she was not delivered by the mother to the father. The video footage shows a nearly 10 year old girl demonstrably happy and enjoying herself in the company of her father and the others.  There was also video footage of the father, his partner and the child enjoying a hiking trip in winter conditions near Ebor in NSW in the middle of 2014, again showing the child to be excited and apparently enjoying herself in the father’s company. There also was footage of other occasions where the child was having fun with her father, her father’s partner and friends on outings with them to various places during 2014.

1. Of course, as I remarked during the hearing, the father would not have adduced evidence of the child not enjoying herself, but nevertheless the various pieces of video footage certainly provide evidence of the child being quite apparently happy and content in the father’s company at various times throughout 2014, a year when the mother asserts the child was so unhappy in her father’s care that she was chronically ill as a consequence, something the father says the child never complained of to him.

2. Another significant piece of evidence adduced on behalf of the father during cross-examination of the mother was a note on the medical records of the general practice the mother has been taking the child to for several years when in need of medical attention. On 4 December 2012, Dr L saw the child when presented by the mother.

3. The doctor’s notes commence with the observation that the parents are separated and “sharing custody 50/50” and that the mother is worried the child is being neglected, complaining that she comes back from visits with her father covered in mosquito bites and sunburnt and was wanting it to be documented for “possible future custody claims”.

4. The doctor’s notes record that the child had “several insect bites on arms and legs” but with “Nil signs secondary infection.” They also record the child as saying that she does not like going to her dad’s house.

5. Those same notes then record that the doctor had a talk with the mother after the child left the room, because the mother “was very negative towards the father in front of [the child] and saying things that were not appropriate for the child to hear”. The doctor expressed the opinion that the mother “appears to have a great deal of resentment towards [the father]”. The doctor records that she explained to the mother that it was not helpful for the child if her mother said negative things about her father and told her that her dad was “using her, neglecting her, etc”. The notes then record the mother as telling the doctor that she had suspicions that the child was being sexually abused at her father’s place as the child would return with “discharge” on her underwear. The doctor records telling the mother that was serious and must be monitored.

6. That was the only reference to the observation of “discharge” on the child’s underwear in all of the evidence that was adduced at the hearing before me. 

Contravention findings

1. The mother did not present a case that she did not contravene the Orders on the three occasions alleged. There is no dispute that the father was entitled, on each of the three occasions – during the school holidays in January 2014, from after school on Monday 13 October 2014, and again after 6:00 pm on the child’s birthday – to spend time with the child pursuant to the primary Order of March 2011.

2. As Warnick J observed in Childers & Leslie (2008) FLC 93-356 at [29]:

   Such an order places serious obligations on persons in the position of the mother in this case.

3. Section 65N of the Family Law Act 1975 (Cth) (“the Act”) provides that a person must not hinder or prevent a person and the child from spending time together in accordance with a parenting Order or interfere with a person and a child benefiting from spending time with each other under the parenting Order.

4. It is clear in this case that being bound by the Orders the mother intentionally failed to comply with them, or made no reasonable attempt to comply with them, on the three occasions alleged. Part VII Division 13A of the Act includes the provisions that determine how allegations of contravention of parenting Orders and the consequences for such contraventions are determined. Section 70NAE provides for “reasonable excuse” to be established by the person who has contravened a parenting Order in certain circumstances. In her defence, for the mother in this case it is submitted that she had “reasonable excuse” for the contraventions. In this regard, s 70NDA(c) of the Act imposes an onus of proof on the mother to prove that she did have a “reasonable excuse”.

5. The term “reasonable excuse” is defined in s 70NAE of the Act. The circumstances in which a person may be taken to have had a “reasonable excuse for contravening” an order include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7) of the section.

6. The mother did not assert that she did not understand the obligations imposed upon her, so subsection (2) of s 70NAE has no application.

7. As I understood the mother’s case, it was that she had a “reasonable excuse” for contravening the Orders on each occasion as she “believed on reasonable grounds” that not allowing the child and the father to spend time together was necessary to protect the health or safety of the child. That is one of the elements of “reasonable excuse” provided for in subsection (5) of s 70NAE. The other element required for “reasonable excuse” to be made out under that sub-section is that the period during which the child and the father did not spend time together was not longer than necessary to protect the child’s health.

8. In seeking to prove her case, the mother relied on affidavit evidence that she had filed. In one of those affidavits she said that the child “has always been very reluctant to go to” her father’s home since the final Orders were made in 2011 and that it “often took a lot of encouragement” from the mother to get the child to go to her father’s home. The mother says that in 2011 the child often screamed and had “big tantrums” before she was due to spend time with her father.

9. Nevertheless, despite that evidence, there is no evidence that the mother took any steps to have the orders reconsidered or varied prior to the change up to the child spending equal time with each of her parents in or around March 2012.

10. The mother then says that following the commencement of the week about arrangement in 2012, the child’s presentation and behaviour worsened again. The mother says the child “started screaming and crying in great distress again.”

11. The mother says that on the Sundays before the child was to go to spend the week at her father’s she would engage in aggressive and abusive behaviour  and on the Monday nights after she returned to her mother’s care her behaviour would begin to deteriorate again. The mother says:

    I did my best at all times to reassure the child and to try to soothe her. She would be in such a state as to be inconsolable.

12. The mother says she sought medical advice and assistance for the child. She says that during 2013 the child started to become physically sick, appearing to be very run down, with swollen glands and often complaining of a sore throat or stomach ache. The mother says that in 2013, the child was referred by a GP, Dr M, to see a psychologist, Ms N, who she began to see in October 2013.

13. It is common ground between the parents that in or around the middle of 2013, the father, who had formed a relationship by then with his current partner, a Filipina, was asking the mother to join with him in obtaining a passport for the child so that he could take her on holiday with them to Asia and North America. It was common ground that the mother had refused to co-operate with the father in that respect. The mother says that she refused as the child “was adamant that she did not want to go to the [Asia] and to [North America]”. The mother says that she was also fearful of the father taking the child to Asia and not returning with her to Australia, saying he “appears to have no need to remain in Australia” as his pension is “transportable”.

14. After that dispute emerged, the father made no application to the Court for Orders that would enable a passport to be obtained or to permit him to take the child to the Asia. However, the father made plans to take the child and a friend of hers with him and his partner on a sea cruise in late January 2014. He simply booked a cruise that remained in Australian waters so that no passport was required for the child to travel. It is also common ground that he did not discuss those plans at all with the mother. He said in his oral evidence that he did not discuss it with the mother as he feared that she might act in a way to prevent the child from going on the cruise with him. He said he feared such a response as the mother had in the past acted in a similar fashion. He cited as an example of that sort of behaviour the mother keeping the child away from school on Wednesdays after she learned that the father was attending school on Wednesdays and assisting the child and her classmates with reading.

15. The father says that on Christmas Day 2013, when the child was with him for the day, he first told her that he and his partner were taking her on a cruise in the January school holidays as a Christmas present for her. He says that he “could see the child was elated at the news” particularly when he told her that her friend, Holly, would be going too. He says that the child asked him if it was okay if she told her mother to which he responded:

    It’s up to you. I don’t want you holding secrets from her.

16. The father says he returned the child to the mother the next day and she “seemed a very happy and excited little girl”.

17. In her affidavit, the mother says that “[a]t Christmas 2013, the child while she was hiding in the garden and screaming said words to the following effect: “I do not want to go on a cruise with dad. I am scared that I will not return to you and stay in [Asia] with dad and [Ms O]. I will not be able to talk to you at all for that time.”

18. In her oral evidence at the hearing, the mother asserted that when she used the words “at Christmas 2013” in her affidavit she just meant the Christmas holidays and she said she only learned of the proposed cruise holiday just a few days before the child was due to go to her father for her holiday time with him (during which the cruise was planned to take place).

19. The mother agreed that after she heard about the cruise she made absolutely no effort to find out from the father, either directly or through lawyers, any details of the plans, more particularly as to the proposed itinerary. The mother steadfastly maintained that the child was “so distressed” about the prospect of going on a cruise with her father that she just could not get her to go to her father for the holiday time. The mother gave no evidence about any efforts she actually went to in endeavouring to get the child to go to her fathers and the only explanation she could offer for not seeking information from the father about his plans was that she was more worried about the child’s distress.

20. The mother agreed that she had not responded to any of the father’s many messages she received around that time. She agreed that she had not even told him directly or through lawyers that the child would not be returned to him at the time or times he had nominated. She agreed she had not told him directly or through lawyers about the child’s distress. She explained this simply by the repeated assertion that she cannot communicate with the father.

21. There was no disagreement at all that when school resumed at the end of the holidays the child returned to school and recommenced spending blocks of time (six nights each fortnight) with her father in accordance with the then applicable Orders.  Whilst the mother gave some evidence asserting that the child was expressing some unhappiness about attending her school at the start of 2014, she did not assert that the child was expressing the desire not to go and spend time with her father.

22. I accept, on the balance of probabilities, the father’s evidence that the child was excited about the prospect of going on the cruise, accompanied by her own friend, when she was told about it and that she was pleased to see the father again when she commenced spending time with him again after the resumption of school. I am not persuaded that the father is giving false evidence about that, particularly having seen the video recorded footage of the child enjoying time with the father throughout 2014.

23. Having regard to all of the evidence about this holiday occasion, I do not accept that the mother has made out that she had a “reasonable excuse” for not delivering the child to the father for her holiday time with him.

24. As I have observed, the onus is on the mother to prove “reasonable excuse”. I do not consider that she has done so. I do not accept that the mother had “reasonable grounds” for a belief that it was necessary to protect the child’s health or safety to not deliver her to the father for her holiday time with him, simply because the mother says the child was ‘distressed’ about going to her father after having told the mother that she did not want to go on the cruise with her father as she was ‘scared’ that she would be staying in the Asia.

25. The mother knew that the child did not have a passport and could not lawfully or easily be taken out of the country without one. The father was communicating by text message with her and, in my judgment, in a reasonably civil fashion. He was under no obligation to inform the mother of his holiday plans, although it might be considered as normally desirable for separated parents in a co-parenting relationship to do so. However, the mother was clearly obliged to deliver the child to him for holiday time pursuant to the Court Order.  Despite this obligation, once matters arose that apparently caused the mother concern, the mother did not take one single step to try to find out about the father’s holiday plans so as to be in a position to more sensibly and reasonably assess her position in terms of her obligation to deliver the child to him. She clearly chose not to communicate with the father at all. She clearly chose not to have any form of discussion with him about his plans that might have produced information that would have enabled her to calmly reassure the child that she was not going to be going to the Asia on the cruise. She took no step to bring an application before the Court to have the matter dealt with in an appropriate fashion. She just chose not to communicate with the father, not to deliver the child to him and to hold on to the child for the entire period of the holiday that she was to spend with the father. She stayed on this course even after she learned from the father, through the police and through the lawyers, that a holiday had been planned and booked and that she would be held responsible for any loss associated with that in circumstances where she did not deliver the child to him.

26. I am satisfied that the mother contravened the order requiring the child to spend time with the father during the second half of the 2013/2014 Summer school holidays and that she has not established a reasonable excuse for that contravention.

The events of 2014

1. A family dispute resolution mediation took place in or around February 2014. The mother said she arranged for that to take place so that her concerns for the child could be discussed. The mother said the outcome was not successful. The mother said that she made several applications to Legal Aid NSW to obtain a grant of legal aid to be able to reopen the proceedings to “discharge or vary” the final parenting Orders but her applications were unsuccessful. 

2. The mother says in her evidence that the child saw Dr K at the GP’s practice in late March 2014. The doctor’s notes of that consultation reflect the doctor having a “long chat” about distress “after being at dads”. She noted the child having “large tonsils, very large cervical nodes, not in axillae or groin”.  I understand this to be a reference to swollen lymph nodes in the neck, as opposed to the arm pits and groin area of the body.

3. The doctor’s notes record advice that the child “needs to be in bed by 7 30 while having recurrent tonsillitis and mesenteric adenitis”.

4. The mother’s evidence is that the doctor diagnosed “chronic cervical lymphadenopathy due to recurring tonsillitis” and another condition causing abdominal pain (mesenteric adenitis).

5. The doctor wrote a note addressed to “whom it may concern” on 28 March 2014, the day she saw the child, and the mother says she provided that to the father by putting it in the child’s bag when she next went to him. She says she “followed it up with a text” as well. The father agrees he found the note in the child’s bag a couple of weeks after it was dated. That note expressed the doctor’s diagnosis of the child and her opinion that it was “imperative” that the child has adequate sleep. In the note, the doctor advised that the child be in bed as close to 7:30 as possible and that she “stay there” (presumably once she had gone to bed).

6. The father gave evidence that he had read that note and had acted accordingly when the child was in his care after that time. I have no reason not to accept his evidence on that point.

7. The medical practice’s records have hand written notes from Dr K in respect of after hours’ attendances upon the child on 26 May 2014 and 13 June 2014. In respect to the first of those, Dr K records the child sitting through the entire consultation with her hands over her ears or with her fingers in her ears. The doctor records “? earaches  Not earaches”. The doctor also records “no eye contact, sullen and withdrawn.” The notes also record that the doctor advised the mother to “film screaming tantrums – which apparently last all evening on return home”.

8. In respect to the second of those notes, the doctor records that the child is “happier today – has been with Mum all week. Communicating well and engaged.” The notes also record that the doctor spoke with the psychologist and that it was agreed “to continue with behaviour strategies” and to “encourage [the child] to verbalize her feelings and concerns”.

9. The child continued to spend equal time with the father, including during the school holidays. There is, as I have said, in evidence, video recording of moments when she was in the care of her father during that time. I repeat my satisfaction that those recordings show an apparently happy child.

10. On 16 September 2014, a decision was issued from the Victims Services section of the NSW Department of Justice in an application that the mother had lodged on the child’s behalf approximately one year before. The application was for a “recognition payment” under the Victims Rights and Support Act 2013 (NSW) to recognise “the trauma the applicant [the child] suffered as a result of an act of violence”. The written decision records that the mother had alleged that in 2008 and 2009 the child was a victim and sustained injury as a result of “indecent assaults” committed against her by the father.

11. The Assessor of the application referred to ‘evidence’ that the mother had reported to the NSW Department of Community Services in 2010 that the child had disclosed to her that her “father had massaged her bottom” and it was also alleged that the child had disclosed that her father had touched her between her legs. The Assessor then found, on the balance of probabilities, that the ‘evidence’ establishes that the child was “a primary victim of an act of violence that occurred between 2008 and 2009” and determined that she could receive a payment of $10,000 under the legislation to be held in trust for her until she turns 18.

12. The mother had that decision in her possession by late September 2014. She says nothing in her affidavit evidence about its content other than the outcome. She says nothing about any disclosures alleged to have been made to her by the child in 2008, 2009 or 2010.

13. In her evidence, the mother says little more about the child’s behaviour between March and September 2014, before she says that on 8 October 2014, the child came home from school and said to her that her father had come to school that day and had brought birthday invitations. The mother says the child said, “I do not want to go back to the school or talk to him ever again.” The mother says the child screamed and threw the invitations in the bin. The mother then says that the child told her she saw the father’s car in the driveway of the mother’s property whilst she was outside playing and that she told the mother that she ran and hid near the river. 

1. The father was not cross-examined about having driven to the mother’s home between 8 October and 13 October. I do not find that he did. However, the mother says that “following this event” the child refused to go to school during the next days and was “physically ill” and complained of having a stomach ache.

2. The mother took the child to see the psychologist, Ms N, on 9 October 2014. Ms N wrote a letter that day, a copy of which is in evidence, in which she records the child telling her that day “I don’t want to go back to Dad’s. He makes me feel scared most of the time because I can’t say stuff”. That is recorded against the stated immediate context of “a current request” for the mother to provide written permission within 14 days for the child to leave the country with her father or “face legal proceedings”. Ms N then records the child saying “I don’t want to go [Asia]. I don’t like going away with him. I miss Mum but I worry that if I don’t go back he might come to school and get me.” She is then reported to have said “If I didn’t have to go back I’d be more happier” and “I’d like to be able to say when I want to go to see Dad instead of like having to go all the time”.

3. The child was then taken to the medical practice again by the mother on Friday 10 October 2014. Dr K saw her again, after she had seen the mother first. Dr K’s notes commence by recording “afraid to go to Dad’s because he sometimes yells at her. Wants her to do things she doesn’t want to do”. The doctor records that she explored that point with the child who told her she “has to go out all the time to theme parks etc and she gets very tired. No choice about these things.” The doctor’s notes go on to record that the child does love her dad but is frightened of him. The child is recorded as saying that “he pretends to be nice”. The doctor records the child as telling her that the father says bad things about her mother and that she feels stressed hearing him talk this way. Dr K records that whilst the child told her that the father forces her to “do things she does not wish to do” these things just concern where they go and how they spend their time. Importantly, the doctor records that the child denies that her father has hurt her physically and also denies that the father has touched her inappropriately at any time that she can remember. The doctor’s notes also record that the child had a sore throat, an enlarged left tonsil and enlarged cervical nodes and was complaining of upper abdominal pain.

4. The doctor recorded the words “work at home this week” and “cert 1 week” as well as “encouraged to be open with her father about the things she doesn’t want to do”.

5. The mother says in her affidavit evidence that she was “advised” by Ms N and by Dr K that the child “should not be returned to father”. The mother says that she followed their advice and “did not let the child go back to her father”. Effectively, this becomes part of her “reasonable excuse” submission in respect of each of the two contraventions remaining to be determined.

6. The mother said that the child then refused to go back to school, saying she was scared that her father would come to the school and pick her up. The mother says that she decided not to return her to school and informed the school of same. It is common ground that the mother then sought to have the child educated through the school of distance education, but that the father, when he learned of that from the education authorities but not the mother, refused to give his consent to that. The child did not return to her school until shortly after the beginning of the 2015 school year when this matter was back before the Federal Circuit Court in G Town and the father made it clear to the Court that he would not collect the child from her school.

7. Ms N’s reports were adduced into evidence. Initially the mother simply attached them to one of her affidavits. However, by the second day of the hearing an affidavit of Ms N herself, exhibiting the same reports was filed and the mother given leave to rely upon it. Ms N gave oral evidence, via telephone, on that second day of the hearing before me. Nowhere in her affidavit, her attached reports or in her oral evidence did she give evidence that she had advised the mother not to return the child to the father in October last year or at any time. She agreed that she most definitely was of the opinion that the matter should again be considered by the Court.

8. Dr K was not called to give evidence at the hearing. The Court was told she was unavailable to do so, as she was away from work at the time. Whilst her notes say that a medical certificate excusing the child’s absence from school was provided on 10 October 2014, there is nothing in the notes actually corroborating the mother’s evidence that Dr K also advised her not to return the child to the father. The only evidence that either Ms N or Dr K or both of them advised the mother not to let the child go to spend time with the father on 13 October 2014 or even on 18 October 2014 or at any time is the mother’s evidence. In the circumstances, I am not convinced that either Dr K or Ms N did actually advise the mother not to return the child to the father’s care at that time.

9. The Doctor’s note provided to the school by the mother, but not to the father, simply said:

   This is to certify that the [child] is unwell and suffering from a medical condition. She will be unable to attend school from 10/10/14 to 17/10/14 inclusive

10. More such notes were provided by the doctor to excuse the child from school over the ensuing weeks and, as already stated, the child did not go back to school until mid-February this year. 

11. On the second day of the hearing before me, at my request, the ICL appeared represented by counsel. The ICL had not appeared on the first day. An affidavit of Mr C filed the day before the second day of the hearing was read by the ICL. Mr C is a psychologist who has been providing family therapy for the family this year at the instigation of the ICL. He holds a Masters of Clinical Psychology. He also holds a Bachelor of Science (Honours), a Masters of Business Administration and a Bachelor of Laws and is enrolled in a PhD in Psychology, expecting to complete that in 2017.

12. Mr C had provided a relatively short report dated 21 September 2015 recording his contact with the family and some observations and opinions.

13. Significantly, in my judgement, he reports that the child has not given any indication of any fears she has towards her father, or animosity that she holds against him. Mr C records that she simply said, “rather unconvincingly, words to the effect of “I am worried that [Mr Merrill] will yell at me as he knows that I have said that I did not want to see him”.”

14. He also reports, nearly three years after a doctor at the general practice did the same, that the mother was saying clearly inappropriate things in front of the child in his presence. Indeed, he reports that he has often asked the mother to try not to do that. Additionally, he made a point of reporting that he could not elicit from the mother one single positive memory of her time with the father when he tried to do so for nearly 10 minutes in one of his earlier sessions with her.

15. Significantly, in my judgment, Mr C said towards the end of his report:

    I am currently working on the hypothesis that whilst there is nothing concerning regarding [the father’s] relationship with [the child], that she appears to be overly influenced to what appear to be her expectations of what her mother and possibly others in that family perceive about [the father], and [the child] (perhaps without genuine insight or intention) believes that association with “[Mr Merrill]” will be a betrayal of sorts or, at the very least, a disappointment.

16. Of further importance is the evidence of the records of Interrelate G Town in respect to the observations of their staff around the supervised visits that were scheduled to take place over a period of months after the Court Orders of February this year. I am satisfied on the reading of those records, that neither the mother nor her mother, the child’s maternal grandmother, acted appropriately when presenting the child to the Centre for time with her father, so as to properly encourage the child to spend time with her father or to ensure that it actually happened each time it was required to. That lack of appropriate conduct resulted in the child spending very little time with her father at that Centre and has, I am satisfied, exacerbated the difficulties that have been faced in re-establishing a meaningful relationship between the father and the child.

17. Overall, having regard to all of the evidence, including the evidence about what has happened since October last year, I am quite satisfied that the mother does not consider there is any value in the child having a continuing relationship with her father and that she does not act in any way to facilitate it, to promote it or to encourage it with the child. I am satisfied that despite the fact that the mother has given her consent to parenting Orders being made over the years that provided for the child to spend increasing time with the father, that she has truly harboured deep seated ill-feeling towards the father and a real desire to limit the child’s time with him that has been the motivator of all her interactions with him over the years. The foundation of that ill-feeling may be a genuinely held belief that the father sexually assaulted the child when she was around five years of age, however, on the evidence before me, I do not determine that there is any rational basis for any such belief, particularly when the mother consented to the child living in an equal shared care parenting arrangement in 2012, well after the alleged disclosures and reports by the mother to DOCS were made and investigated and also where the mother deposed to no evidence in the affidavits she relied upon in the hearing before me of any such disclosures or the circumstances in which they were made.

18. I am indeed satisfied that the mother’s very poor attitude towards the father and the issue of the child spending time with the father was re-ignited by the issue of the decision of the Assessor on the victim’s compensation application in mid-September 2014 and an apparent request by the father for the mother to give permission to him taking the child with him and his partner on an overseas trip at around that same time.

19. I am satisfied, on the balance of probabilities, that the child’s behaviour and her physical and emotional symptoms are the product of the conflict and distrust that characterises her parents’ relationship, how they relate with each other and how they talk with others and the child about the other parent. I have seen no evidence, not even the evidence of Dr K or Ms N of things reportedly said by the child when taken to see each of them by her mother, that actually persuades me that the child genuinely, and for sound reason, does not want to spend time with her father. The mother’s evidence about that most certainly does not persuade me.

20. I am satisfied that the extremely well qualified psychologist’s hypothesis that I set out earlier in these reasons is the probable explanation for the child’s behaviour of saying to others that she does not want to spend time with her father. The 11 year old child’s insistence on calling her father ‘[Mr Merrill]’ rather than ‘Dad’ is indicative, at least in my judgment, of negative influence of the mother and other’s around her in respect of the child’s relationship with her father. The 2011 Orders included the mother giving an undertaking that she would not refer to the father in the presence of the child as anything other than ‘Dad’. That the child insists on calling her father ‘[Mr Merrill]’ is more than likely the result of that undertaking being breached. I am satisfied that the child saying she does not want to spend time with her father is just another product of the negative influence she is being exposed to in respect of her father.

21. The behaviour of the child described by the mother and apparently represented by the mother to Dr K and Ms N to be the behaviour of the child, particularly in early October last year, contrasts quite markedly with the behaviour of the same child described by her father who was spending meaningful and enjoyable time with him up to that point and who is shown in videos taken only a couple of weeks before then joyfully and excitedly frolicking with him during her time with him. I do not accept that the child genuinely and for good reason did not want to spend time with her father, even though she apparently told Dr K and Ms N that she did not want to. As I have said, I am satisfied her expression of that position was a product of her mother’s negative influence, not her own rational thought process.

22. I do not make a finding that Dr K and/or Ms N advised the mother not to return the child to the father’s care in early October last year. The only evidence that they did so is that given by the mother and I have serious doubts about the mother’s veracity on that point. It was easy for her to say that they advised her not to return the child to her father, when she produced no evidence from either of them, even when Ms N was called to give evidence on the mother’s behalf, that she had been so advised.

23. Even if I am wrong about that and they had given her that advice, that in itself would not, in the circumstances of this case, cause me to accept that the mother had “reasonable grounds” for believing that not allowing the child to transition to her father’s care on 13 October or 18 October 2014, and keeping her from spending time with her father from then until now was “necessary to protect the health or safety” of the child. I am, on the evidence, quite satisfied that the father was last year capable of managing the physical symptoms observed by Dr K to have been experienced by the child that prompted the Doctor to certify that the child could be kept home from school for several weeks. The child could have stayed at home, if that was part of the appropriate treatment regimen, whilst in the father’s care.

24. The mother has failed to persuade me that she had reasonable excuse for contravening those parts of the parenting Order that required her to cause the child to transition into the father’s care on the afternoon of Monday 13 October or again on the evening of Saturday 18 October 2014. Accordingly, I find that she has contravened the primary parenting Order as contended by the father on those days without reasonable excuse.

The Consequences of my findings that the mother contravened the Primary Parenting Order without reasonable excuse as alleged by the father

1. Part VII Division 13A of the Act has two subdivisions that particularly deal with the consequences of findings of contravention without reasonable excuse. The second of those subdivisions, subdivision F, deals with those cases in which the Court is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order. The other of those subdivisions, subdivision E, applies in those cases where the Court is satisfied that it is more appropriate for the person who has contravened the primary order to be dealt with under it. The heading used in the Act describes those cases as those in which the contraventions are described as “less serious”.

2. Subdivision F actually must be applied in certain prescribed circumstances. Even if no Court has previously imposed a sanction or taken action in respect of a contravention by the person of the primary order, if the Court is satisfied that the person has behaved in a way that showed “a serious disregard” of her obligations under the primary order then subdivision F applies. It also applies if a Court has previously made an order imposing a sanction or taken action in respect of a contravention by the person of the primary order. If either applies, nevertheless s 70NFA(4) still allows the Court to determine to deal with the matter under Subdivision E if satisfied that it is more appropriate to do so.

3. Whilst I am satisfied that the mother admitted previous contravention of a parenting Order, that was six years ago, in 2009, and was not a contravention of the same primary Order that I have now determined that she has contravened without reasonable excuse. Accordingly, in my judgment, the current contraventions are to be dealt with under Subdivision E or F depending on my determination as to whether the mother behaved in a way that showed a serious disregard for her obligations under the primary order or not.

4. In its decision in Elspeth & Mr H; Mark & Mr H and John & Mr H [2007] FamCA 655 the Full Court discussed the issue of what might be seen as constituting a serious disregard of obligations under an order. The Full Court discussed a number of first instance decisions in which the question had been considered and, at paragraph 66, said:

   What seems to be the common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under subdivision F.

5. Although it is the first time the mother has been found by a Court to have contravened the primary Order made in 2011, it is not the first time that she has contravened a parenting Order. As already observed, she has previously admitted contravention in 2009. For that contravention, she agreed to the father being given compensatory time with the child. She has also had several contravention applications brought against her since then which have been compromised as part of further parenting Orders being made. She has been informed by the father and his lawyers of the potential for contravention proceedings being brought against her, including, quite relevantly, the evidence establishes, around the times that I have found she actually contravened the Order without reasonable excuse. She deposes to having applied, without success, for legal aid to commence proceedings to vary the primary Order.

6. I am, therefore, quite satisfied that the mother was well aware of her obligations to comply with the provisions of the primary parenting Order and the necessity to have it discharged or varied by further Order if she considered that there were sufficient “best interests” grounds for that to happen. Without bringing such an application, effectively on two occasions, ten months apart, she simply unilaterally determined to contravene provisions of the primary Order, that she had previously consented to, that would have had the child spend time with the father. In respect of the January 2014 school holiday contravention, she chose to contravene without making any reasonable attempt at all to determine if her asserted concerns about the child’s health or safety had validity. Only after the father filed his contravention application did she file her application to seek to vary the primary Order.

7. I am also quite satisfied that the mother’s behaviour in contravening as she did, sought by her to be cloaked in genuine concern for the health or safety of the child, actually does demonstrate such disregard of her obligations under the Order to warrant being considered a more serious contravention to be dealt with under Subdivision F.

8. The powers available to the Court pursuant to Subdivision F, s 70NFB are extensive. They include making a community service order, making an order requiring the person to enter into a bond, making an order that compensates a person for time the person did not spend with the child as a result of the contravention, imposing a fine, imposing a sentence of imprisonment and, if the current contravention resulted in a person not spending time with the child for a particular period and that person reasonably incurs expenses as a result of the contravention, making an order requiring the person who contravened to compensate the person who has incurred the expenses for some or all of the expenses referred to. 

1. Section 70NFB(1)(a) actually mandates an order that the contravening party pays all of the costs of the other party, or other parties, to the proceedings unless the Court is satisfied that it would not be in the best interests of the child concerned to make that order. Subsections (1)(b) and (1)(c) of that section empower the Court to consider making another order from amongst those set out in the previous paragraph even if the Court makes an order for the contravening party to pay all of the other parties’ or party’s costs, or to make at least one order from amongst those if the Court does not make the order for the contravening party to pay the other parties’ or party’s costs.

2. In his submissions for the father at the end of the hearing, Senior Counsel informed the Court that the father was not pressing for any ‘penal’ sanctions against the mother. He did tell the Court that the father sought his costs of the hearing, which the evidence established were not much short of $70,000. It had also been made clear during the hearing that the father also sought to be compensated for $9,777.86, being the total cost of the cruise, including $2,722 being the cost of the child and her friend, that was lost to him because of the advance booking of their berths even though the two children did not go on the cruise. Senior Counsel informed the Court that the father sought instead of ‘penal’ sanctions that orders be made pursuant to s 70NBA of Division 13A varying the primary Order having regard to best interests of the child.

3. For the father it was submitted that sole parental responsibility should now be conferred upon him subject to consultation requirements, that the child should now live with the father, that the child’s time with the mother be limited to one night per week for three months before increasing to alternate weekends from after school Friday until before school Monday and half of school holidays. Additionally, for the father it was submitted that compliance with such orders be supervised, pursuant to s 65L of the Act, by a Family Consultant nominated by the Manager of Child Dispute Services. The orders sought by the father also would restrict the mother’s communication with the child for the first three months before reverting to more standard communications provisions involving email and Skype.

4. Significantly, at the end of the hearing, counsel for the ICL submitted that the Orders sought by the father should be made, being in the best interests of the child.

5. Turning firstly to my obligation to now consider making an order pursuant to s 70NFB(2)(g) for the mother to pay all of the costs of the father or the father and the ICL, unless satisfied that it would not be in the best interests of the subject child, I take into account the father’s evidence that his costs total just under $70,000 and the circumstances conveyed to the Court that the mother, whose only source of income is Commonwealth Government benefits and child support, is in the process of selling her property at which she and the subject child, the mother’s partner and the mother’s other child live, in order to satisfy demand from her mortgagee for the payment of her outstanding mortgage debt. I am satisfied that it would not be in the best interests of the subject child to order her mother to pay all of the father’s costs, or all of the father’s costs and the costs of the ICL. I will not make such an order.

6. I must now make at least one order from those available to me pursuant to s 70NFB(2) before I turn to consider the submissions that I make orders varying the primary parenting Order.

7. I am satisfied that the mother’s contravention of the primary Order in the January 2014 school holidays resulted in the father not spending time with the child as the Order provided for and that the father reasonably incurred expenses as a result of the contravention for which he should be compensated, namely the loss of $2,722 that he had pre-paid for the child and one of her friends to go on the cruise from Sydney to the Whitsundays and back to Sydney, forfeited to the cruise company when the children did not travel. In circumstances where the mother was put on notice that she would be held responsible for loss such as this at a time when she could still have delivered the child to the father in time for her to go and enjoy the cruise and where she made no effort to do anything other than simply contravene, I consider it entirely appropriate, notwithstanding the mother’s financial circumstances, to make an order that she pay the father the sum of $2,722 in compensation for those expenses incurred as a result of her contravention.

8. The father and his partner travelled on the cruise. The father said they struggled to enjoy it in the absence of the child and therefore should be compensated for the entire cost. I do not consider it appropriate to order the mother to pay the father’s costs of him and his partner going on the cruise. I do not consider, where he and his partner got what they paid for in terms of their own travel, that to be an expense reasonably incurred as a result of the contravention.

9. Having regard to the other Orders I intend to make pursuant to s 70NBA of the Act, I consider the Order pursuant to the power conferred by s 70NFB(2)(g) to be all that should be made pursuant to Subdivision F at this time.

What Orders do I intend to make pursuant to s 70NBA?

1. If the Court is considering making an Order varying a primary parenting Order and Subdivision F of Part VII, Division 13A has been held to apply, s 70NBA(2) requires the Court to, in addition to regarding the best interests of the child as the paramount consideration, take some other listed considerations into account if they are relevant. Those include whether the person who contravened the order did so after having attended, after having refused or failed to attend, or after having been found unsuitable to take any further part in a post-separation parenting program or part of such a program, whether there was no post-separation parenting program that the person who contravened could attend, whether it was considered by the Court not appropriate for the person who contravened to attend a post-separation parenting program and whether the primary order that was contravened was itself a compensatory parenting order made after a previous contravention by that same person.

2. In this regard, I observe that paragraphs 30 and 31 of the primary parenting Order made in March 2011 imposed certain obligations on the parties about what I understand would be post-separation parenting programs.   They provide as follows:

   That the parties contact Interrelate (or their nominee) on telephone number xxxx 966 for intake in the “Rebuilding” Program or such other courses as recommended by that organisation.

   That the parties shall comply with any reasonable direction of the Program Co-ordinator and in particular:

   a.attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;

   b.advise the Co-ordinator of their contact telephone number and advise the Co-ordinator of any change in that number;

   c.attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator.

3. There was no evidence adduced by any party about the mother’s attendance or non-attendance at such a course or program. In the absence of such evidence, having regard to the fact that the Court ordered attendance, I consider it reasonable to assume that the mother did attend and participate in such a course and to consider the matter as if she did.  Such attendance did not prevent these serious contraventions of the primary Order from occurring. That is a matter to be taken into account in determining any variation to the primary parenting Order and I do.

4. Of course, in considering whether the primary parenting Order should be varied as urged upon the Court by Senior Counsel for the father and counsel for the ICL, the provisions of other Divisions of Part VII of the Act must be considered, particularly those mandating regard to be had to the best interests of the child as the paramount consideration when deciding whether to make a particular parenting Order and those that set out the matters to be considered when determining what is in the child’s best interests. (ss 60CA and 60CC), but also other provisions such as ss 60CD and 60CG, and provisions relating to parental responsibility, including ss 65DAA and 65DAC.

5. In this matter, I am also particularly mindful of the statement of principle expressed by Warnick J that counsel for the mother cited from his Honour’s judgment in Childers & Leslie (2008) FLC 93-356 at [53] that “[c]ompensatory time is not an order to be made by way of retribution, without regard to the child’s best interests”. Whilst it is not strictly “compensatory time” that I am intending to order, I am conscious that variation of a primary parenting Order so as to change the child’s parenting arrangements is equally not to be done by way of retribution, but rather should only be done with the child’s best interests being the paramount consideration.

6. As I understand it, the current ICL has been the ICL representing this child in all of the proceedings since 2008. I am satisfied that she has extensive knowledge of the matter and brings the critical objectivity to the discharge of the role that so assists the Court in the determination of these very difficult decisions. At the end of the hearing before me, Counsel for the ICL submitted that the Court should vary the primary parenting Order as sought by the father, namely by making an Order that the child go to live with the father and spend limited time and have limited communication with the mother for three months before reverting to more time in her care and more communication with her. The principal submission was that the Court would be satisfied on the evidence that the child will not have a meaningful relationship with the father if she continues to live with the mother as she does now. Counsel for the ICL also submitted that the oral evidence of Mr C supported a finding that there would be a total breakdown of the child’s relationship with the father if current circumstances continue. I am satisfied there is merit in those submissions.

7. Counsel for the ICL further submitted that the Court could be satisfied on all the evidence that there is no need to keep the child away from the father to protect the child from her father. I understand that submission to be the same as a submission that the evidence does not support a finding that the child is at an unacceptable risk of harm in her father’s care. I accept that submission.

8. I acknowledge that in his written report, the psychologist, Mr C, did say he believed that the child should continue to attend sessions with him and that they should continue to work

   …gradually and systematically towards restoring amiable communications between the trio [father, mother and child], directly and indirectly, with especial focus on restoration of some communication between the child and her father, with a view to allowing a mutually agreeable pathway towards a more functional relationship as appeared to have been working effectively prior to September 2014 .

9. In his oral evidence, although acknowledging that he has not had a “breakthrough” yet in respect of the child wanting to see her father, Mr C, still spoke optimistically about the potential to reinstate a meaningful relationship between the child and the father through his therapy. However, significantly in my view, he agreed with counsel for the ICL when asked in oral evidence whether he agreed that if things do not change in the foreseeable future the result is likely to be a total breakdown of the relationship that the child has with the father. I consider it also extremely relevant that he seemed to base his optimism on a perception that the mother supported a reintroduction of the relationship, a perception and optimism that I do not share.

10. Mr C had also told the Court in oral evidence, similarly to what he had said in his written report was his theory, that it is his opinion that the child believes that if she has a relationship with her father, she is betraying her mother and the rest of her siblings. In my judgment, that can only be a belief that she has gained from her direct experience with her mother and siblings. Mr C also expressed the firm view that the mother lacks insight into the impact on the child of her negative comments about the father made in front of the child whilst at the same time he expressed the view that the father seems to have more insight and seems to be focused on other issues than “jealousy” of the other parent.

11. Senior Counsel for the father made the point that the mother’s insight in respect to the impact of her comments about the father on the child does not appear to have changed over many years. In my judgment, that is a point very well-made and of which I am quite satisfied. Indeed, I am satisfied that as the mother has perceived the child to be reacting under the influence of her negativity towards the father in a way that favours her relationship with the child to the detriment of the child’s relationship with the father, the mother has simply continued the negativity with a view to achieving the outcome that has now come about.

12. Of further importance, in my view, is the fact that Mr C also agreed with the proposition that if the Court was satisfied that the father would be more likely to comply with orders that required the child to spend time and communicate with her mother than the mother is in respect to the child’s time with the father, that placing the child with the father would more likely ensure that the child had a meaningful relationship with each of her parents.

13. There were several pieces of important evidence in this respect. In addition to the father’s evidence, which I accept as true, that in the past the mother kept the child from school on Wednesdays after she learned the father was going to the school on those days and doing parental reading in the class room, the mother agreed that the father had on, at least two occasions, readily allowed the child to go back into the mother’s care during time that she was, pursuant to the primary Order, otherwise in his care. On one of those occasions, the father allowed the child to go back into the mother’s care when asked so that she could attend a family wedding on the mother’s side of the family. On another of those occasions, the father had allowed the child to go back into the mother’s family’s care when asked so that she could attend a birthday party being organised for the mother by the mother’s family. I accept the father’s evidence that he was assured the child would be returned to him the following day but that she was not. The mother simply disavowed any responsibility for the agreed arrangements and relied on the fact that the party was held several hours away, as well as an assertion that the child had to be presented to a hospital to have a sore attended to that the mother blamed the father for in order to justify not returning her to his care as had been agreed between the father and the mother’s family.

14. I also consider the evidence establishes that the father’s written communication with the mother, principally in telephone text format, is appropriate and demonstrative of a parent who is trying to have a co-operative parenting relationship with the other parent. I was not persuaded that they were inappropriate, threatening, intimidating or abusive. They were, at times, firm and clear in the expression of the father’s expectations of compliance with the Court Order by the mother, but by no means do I consider they demonstrate that the father was a man who could not be communicated with by the mother as she asserted. Indeed, even as close as just prior to the September 2014 school holidays, the mother entered into a lengthy text exchange with the father about him taking the child to a doctor’s appointment the mother had made for her during her time with the father and continued texting him even after he reasonably asked her to desist. The evidence given about that did not demonstrate an inability on the part of the mother to communicate with the father because of fear of him.

15. In short, I am quite satisfied that the father is more likely to comply with a parenting Order that requires the child to spend time with and to communicate with her mother than the mother has demonstrated she is in respect of Orders that require the child to spend time with and to communicate with her father. I accept the expert’s opinion, and the submission made on behalf of the ICL, that placing the child with the father in such circumstances is more likely to result in the child having meaningful relationships with both of her parents. That is in her best interests.

16. Very importantly, I refer to the evidence confidently given by Mr C when asked by Senior Counsel for the father if he was of the opinion that the father has the necessary parenting skills and personality traits to be able to deal with the child appropriately in circumstances of an Order now being made requiring the child to live with the father. Mr C immediately responded with the affirmative “I do”. He then went on to acknowledge that those circumstances would be “tough” for the father and the child, but he reiterated that he believed that the father could do it. 

17. I am quite satisfied that it is very important for the child in this case to have a meaningful relationship with both of her parents and not just one of them. I am satisfied that she will benefit, in the same way that any human being benefits as they mature into adulthood, from having meaningful relationships with each of their parents. I am quite satisfied, as was submitted for the ICL, that there is no need to protect the child from harm at the hands of the father. On the evidence, I am not persuaded that there is an unacceptable risk of the child being abused, neglected or harmed by putting her into the day to day care of her father for the time being.

18. I am mindful of the views said to have been expressed by the child about spending time with her father. I am equally mindful, however, of her age, her apparent failure to express any rational basis for the position she has expressed, the clear responsiveness of her behaviour and utterances to the influence of her mother and her maternal grandmother, and the expert opinion that the child is acting on some sort of underlying perception that she must act the way she is lest she betray her mother and her mother’s family. I am satisfied, on the balance of probabilities, that her conduct, her utterances and her physical symptoms are the reactionary consequences of the high emotional conflict she has been subjected to since the separation of her parents and are most likely part of an adaptive mechanism to remove herself from this perpetual conflict.

19. The father lives in a rental home in P Town, just south G Town and about a half hour’s drive from the town in which the child goes to school. He lives with his partner of two years who is from Country Q and who he says he is intending to marry. She does not yet have residency status in Australia, and accordingly, returns regularly to the Asia before coming back to Australia again. He is not in employment and receives income by way of a pension, paid to him by reason of his early retirement from the public service on health grounds. He is available full-time to care for the child when she is not in school. As his partner does not have residency status I can only presume that she is not employed either and, when in Australia, is in the father’s household full-time.

20. The father demonstrates appropriate concern and attention to the child’s education, apparently being reasonably involved with the school she attends and having what I conclude is an apparently good working relationship with the administration of that school. He also demonstrates interest in and attention to the need for the child to maintain peer friendships, often making arrangements for one of the child’s friends to spend time with her at the home, or on outings or trips away. He appeared sensitive to the need for her to even maintain involvement in after-school activities, even with friends, in the town where she goes to school, although that is about a half an hour’s drive away from his home.

1. Counsel for the mother cross-examined the father on medical reports produced by his former employers under subpoena. Those were reports prepared by psychiatrists who the father saw in October 2011 and June 2012 in connection with his claim for health related invalidity from the public service. The reports were tendered into evidence. Those reports reveal that when seen by the respective psychiatrists the father related a history of emotional difficulties that he attributed to exposure to traumatic events during the course of his active service.

2. In the second of the reports, he is said to have related being irritable and having difficulty controlling his moods and temper and having little tolerance. He said that he would avoid going out of his flat except to take his daughter to school. He was reported to have told the doctor he suffers from a depressed mood all the time. He reported a history of alcohol abuse. He reported receiving counselling from a psychologist and treatment from a psychiatrist at that time. The doctor who did that second report expressed the opinion that he was suffering from Chronic Post Traumatic Stress Disorder and Chronic Major Depressive Disorder. That doctor expressed the opinion that these disorders were the product of exposure to traumatic events over the years of his public service and that they incapacitated him for work.

3. In the first of the reports, the other doctor recorded similar sorts of reports being related by the father about his condition and symptoms. That doctor expressed the opinion that the father had “longstanding interpersonal difficulties” which he compounded by alcohol misuse. He did not consider that the father had a post-traumatic stress disorder.

4. Notwithstanding that apparent divergence of medical opinion, it seems that the his employers ultimately accepted the opinions of the psychiatrist who did the second report and approved the father’s application for early retirement on a invalidity pension.

5. Of course, that evidence about the father’s state of health in 2011 and 2012 was concerning. But in his oral evidence, the father said that he had first had those health issues in or around 2003 and that the mother was aware of them when they were married. The inference I take from that evidence is that she was aware of them when she consented to the parenting orders in 2009 and 2011. I accept that she was. The father also told the Court that he last saw a psychiatrist in 2012, and that his emotional issues started to abate when he left the public service in 2011. He told the Court that he no longer used alcohol and was no longer on any medication such as anti-depressant medication.

6. The video recordings adduced into evidence prove the father was well and truly out and about in public on a regular basis in 2014. Mr C, a highly qualified psychologist, said nothing in his report or oral evidence to give me cause for concern that the father is still suffering from any of the effects of the mental health disorders that resulted in him being discharged from the public service three years ago. I have no reason to disbelieve his evidence about his abstinence from alcohol and not being on medication. I observed him being extensively cross-examined in Court and whilst he was measured and careful in his responses to the questions he was asked, I saw nothing that gave me cause for concern that he might still be suffering the effects of major depression or post-traumatic stress disorder.

7. I am conscious that a change in the living arrangements for the child, including immediate separation from her mother and her half-sibling and the extended family, will likely be difficult for the child. I weigh that very carefully in the process of making this decision. However, until October last year, she spent several years living week about in her father’s care, so going back into his care will not be something she is unfamiliar with. I place a good deal of weight on Mr C’s agreement that the father is suitably equipped to handle the initial difficulties and my acceptance that the father will appropriately foster and encourage the child’s relationship with her mother in the future.

8. I have given much thought to the idea of leaving things exactly as they are, with Mr C continuing to try to use his therapeutic approach to a reintroduction of the relationship between the child and the father, whilst the mother’s application for reopening of the proceedings so as to vary the primary order that provides for the child to spend equal time in the care of each of her parents proceeds to determination. I simply fail to be satisfied that this is a course that will soon see this child’s relationships with both of her parents back on a meaningful footing and meet her best interests.

9. Ultimately, I am satisfied that a parenting Order must now be made placing the child into the care of her father so that this relationship, that I am satisfied was a good one before the mother’s contraventions of the Orders last year, is quickly reinstated. I am reasonably confident, having regard to the evidence and my findings, that away from the influence of her mother, the perpetual conflict and negativity about the father, the child’s relationship with him will quickly return to being as meaningful and beneficial for her as it once was.

10. I will order that the child shall live with the father until further Order. I am satisfied that there should be a relatively short period of time where the child has no contact with her mother or where she spends time with her mother, so as to allow the changed arrangements to settle into effect, before communication with the mother recommences and before the child starts going to spend time with her mother.

11. I will order that there be supervision of the changed arrangements by the ICL and Mr C. The father will bear the costs of any necessary appointments with Mr C. I will give liberty to the ICL to relist the matter for the determination of any further orders considered by her to be necessary in the circumstances on short notice to the father and the mother. I expect that a family report will be prepared in any event after the new parenting arrangements have been in place for long enough for a report writer to be able to form some opinions that should assist the Court in giving further consideration to the best interests of the subject child and in determining whether the changed parenting arrangements should remain in place or again be varied.

12. By supervision, I mean that the ICL and/or Mr C meet with the child and the father, separately and together, at their discretion, to monitor and assess how the changed arrangements are taking effect and to provide any assistance to them that is necessary in doing so.  After the period of time during which the Orders provide that the child not spend time in her mother’s care expires, that supervision may also involve the mother as determined by the ICL and Mr C. The mother will bear the cost of any necessary appointments for her with Mr C.

13. My Orders will provide for the father to keep the mother informed as to the child’s wellbeing whilst in his care, so as to contribute towards a reduction in anxiety that I have little doubt the mother and her family will be experiencing until the child starts spending time with them again and even afterwards.

14. I will not make a change to the parental responsibility order on an interim basis. Parental responsibility for the child is currently shared equally. Any exercise of that responsibility that involves making a decision about “major long-term issues in relation to that child”, as that is defined in s 4 of the Act, will, in the interim, be required to be made in accordance with s 65DAC. That is, any such decision will be required to be made jointly only after each parent has consulted the other and made a genuine effort to come to a joint decision. If the decision cannot be made jointly then, in my judgment, it cannot be made unilaterally and must be, absent agreement, determined by the Court.

15. Whilst this matter remains as a proceeding that is pending to another final hearing in this Court, I consider it in the child’s best interests, to continue the equal shared parental responsibility Order. It may not be long term, but I am satisfied that it is whilst the matter is still before the Court.

16. That said, I am quite clearly satisfied, as should already be clear, that an order that the child spend time equally between her parents is not in her best interests at this point in time. Nor do I consider that an order that the child spend substantial and significant time in the care of each of her parents is in her best interests at this point in time. As such, I do not consider that I even have to turn my mind specifically to the question of whether equal time or substantial and significant time orders are reasonably practicable (see s 65DAA). Those matters will be able to be further considered at a final trial of the mother’s application, particularly if the equal shared parental responsibility order is then left in place, but even if it is not.

17. I will discharge some paragraphs of the Order made on 14 April this year that suspended the primary Order of March 2011 and provided for the child to live with the mother. I will leave certain paragraphs of the primary Order of March 2011 in place as I consider the obligations and responsibilities imposed by them to be appropriate. Accordingly, the current parenting Orders regime that will govern the interim period until another final parenting Order is made will be understood by reading that Order and my Order together.

18. I make the Declarations and Orders set out at the commencement of these written reasons.

I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 November 2015.

Associate:

Date:  18 November 2015