Murray and Kings

FAMILY COURT OF AUSTRALIA

MURRAY & KINGS

[2008] FamCA 580

FAMILY LAW – CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Murray

RESPONDENT:

Ms Kings

INDEPENDENT CHILDREN’S LAWYER:

Ms Romano

FILE NUMBER:

CAF

509

2006

DATE DELIVERED:

25 July 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

21, 22 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Self represented

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Self represented

THE INDEPENDENT CHILDREN’S LAWYER:

Ms B. Romano

Orders

That … (“the child”) born on … August 2006 live primarily with her mother.
The parents will not have equal shared parental responsibility of the child. Subject to the following orders the child’s mother will have sole parental responsibility.
Notwithstanding the last mentioned order;
(a)the mother will authorise and direct any medical practitioner or health professional to whom the child is taken or with whom she consults to make available to the father, any details of the treatment that the child has received or any diagnosis or any result of the consultation.
(b)The mother will ensure that the father is advised promptly, and in any event within two days, of any treatment that the child has received.
(c)The mother will advise the father promptly about any emergency treatment or urgent treatment undertaken for the child.
(d)Each of the parents will keep the other informed of any medical event or injury occasioned to the child while she is with him or her
(e)Each of the parents will ensure that he or she advises the other parent of any treatment that the child is receiving; supply any medication that is necessary for the period that the child is with the other parent and ensure that she takes that medication when the child is with him or her.
(f)The mother will consult with the father about the school the child will attend in due course and any pre-school the child will attend.
(g)Each of the parties will engage in that consultation in good faith although if they are unable to agree, the mother’s opinion about which pre-school or which school the child will attend will prevail.
Until the child turns three years of age she will spend time with her father on each Friday between the hours of 3:30pm and 6:30pm and on each Saturday between the hours of 10:00am and 5:00pm.
When the child turns three, the time that she spends with her father will be extended from the time that there is a hand-over at Centacare at G on the Friday afternoon until 5:00pm on the Saturday afternoon.
The child will spend time with her father on Father’s Day each year from 02:45pm on to 5:00pm.
Each of the handovers in relation to the time that the child spends with her father will be facilitated through the Centacare Children’s Contact Service at G, unless the parties otherwise agree.
The father will provide to the child, a pre-paid mobile phone to enable him to communicate with her when she is with the mother. The mother will facilitate any reasonable communication between the father and the child via that telephone.
If during the time that the child is with the father he proposes that she should engage in some activity which will be on a continuing basis, the father is restrained from enrolling the child in such activity without giving prior notice to the mother of his proposal to do so. The parents will, if they are not in agreement about the activity, discuss and consult with each other to try to find some compromise, if however such compromise is not capable of being reach, the activity will proceed during the time that the child is with the father but not so as to compel the mother to continue such activity during the time that the child is with her.
Each of the parents will enrol for and attend and if required pay in equal shares for the program about attachment recommended by the Family Consultant Ms L, in Canberra.
Neither parent may, except by leave of the Court, file any further application to change the arrangements about the time that the child will spend with her father or her mother until the child commences school or obtains the age of five, whichever event shall first occur unless some major event happens in her life which in her best interests would properly require a variation in these orders.
However, nothing contained in these orders prevents the parents from reaching agreement about other or alternative times or periods for the time that the child will spend with each of them.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF509 of 2006

MR MURRAY

Applicant

And

MR KING

Respondent

REASONS FOR JUDGMENT

Foreword

This is a case about the time that the parties’ child, born in August 2006, will spend with each of her parents. The child has lived primarily with her mother since the parties separated and there have been various proceedings before the Court about the time that the father would spend with the child until the matter came on for the parties’ finalisation of their less adversarial trial on 21 and 22 July 2008.
Neither parent in this matter asserted the other parent did not care for the child and although there with some qualifications, each of the parents expressed the view that the child would enjoy the time that she could spend with the other parent and that generally the other parent would be able properly to look after her.
The mother continued to the end of the finalisation of the Less Adversarial Trial to express her concerns about the father’s drinking and the potential consequences that might flow if he were to drink during the time that the child was with him.
The parties have a difficult history, which affected each of them differently. The father sees the time together as one in which he suffered criticism and what he would describe as abuse from the mother on a continuing basis. He saw this in some ways as giving rise to his problems with alcohol, which in turn, it is agreed by both, gave rise to violent episodes from him.
The father asserts that this is all behind him now and that there is nothing much more he could possibly do to overcome the problems he has had in the past. He has undertaken courses (for which he has certificates) and has engaged, he says, in distracting and diversionary activities to combat concerns about lack of self-esteem or stress. These include fishing and looking at the stars.
The parties have engaged in various proceedings before Local Courts seeking (and obtaining in most cases) Apprehended Violence Orders against each other and others.
The mother had two children before she had the subject child with the father. The father had a child with a previous partner. This child T lives in Canberra. H, the mother’s son, at present lives with her in G. He is in his last years at school.
It would be easy to think, as indeed the Independent Children’s Lawyer suggested, that this is a matter which ought to have been capable of an easy (or at least an easier) solution.
When the parties separated the mother moved to G and the father relocated to the district to be closer to the child.
Significant impediments to successful handovers for the time that the child spends with the father are generated by the animosity between the parties and the conclusion reached by the child’s mother that it is not possible for her and the father to conduct handovers in person.
In recent times the parties have used the services of a contact centre in G. After observing the parties’ interaction in Court, I conclude that there is little prospect of a cooperative and non-conflictual handover arrangement directly between the parties at present. This situation may apply for some time.
The situation is exacerbated somewhat by the fact that, in colloquial terms, the mother seems to know which buttons to push on the father and his system is wired to react immediately to those buttons being pushed.
The mother sees herself as a victim of the father’s irresponsible actions during the time they were together and to some extent subsequently. She is determined (and I accept the genuineness of this determination) that the child not be exposed to any danger. She justifies her apparent lack of cooperation in some areas by this important criterion. It was difficult for me to determine during the course of the hearing whether all of the concerns of the mother were genuine but I had, and have, no doubts about her overall concerns for the child’s welfare.
On the other hand the father sees himself as a reformed person. He is both bewildered and angry that the changes he sees in himself are not readily acknowledged by the mother. He asks plaintively and to some extent rhetorically, “What else can I do?” However he still appears to lack significant insight into the effect of his own actions or how others might respond him. He has undertaken courses which were designed to help him, but he sees his attending such courses to be in itself to be a justification for the reinstatement of cooperative arrangements between him and the mother. She does not share this view. This makes him angry.
Certificates of completion of courses do not guarantee that conduct has been changed or that attitudes are now sufficiently different to enable the relationship to be rebuilt. There is nothing in the conduct of the parties which gives me any confidence that at present or for some time to come they will be able to develop at the very least a ‘business-like relationship’ which will enable them to provide effective parenting together (in some respects) for the child. I cannot conclude from the evidence before me at the hearing and from the attitude of the parties in court that they would at any time soon reinstitute any form of amicable relationship between themselves.
Arrangements about the time that the child spends with her father are necessarily been affected not only by the parties’ animosity to each other but also by the child’s age and the advice (which I accept) from the Family Consultant about the undesirability of the changing or interfering with primary attachments of very young children.
Both parties see to some extent some progression of the time that the child spends with her father but each has to some extent adopted what might be considered to be bargaining positions based on his or her own feelings at present rather than an upon an objective assessment of what the child is both capable of and would benefit from.
For example, the mother sees overnight time for the child with her father as being delayed for some three years. The father would see this happening next weekend. The Family Consultant suggested that a child of this child’s age (I emphasise that this was not related to this child specifically) might start to spend overnight time with the person to whom she was not primarily attached between the ages of two and two and a half.
The Independent Children’s Lawyer commented that she “accepts [Ms L’s] report” but “my view is that overnight time should not commence until [the child] is three and a half.” She went on to say that she originally thought that three years of age would be appropriate but had changed her mind. To some extent this was as arbitrary a conclusion as those of the parties.
The Family Consultant suggested it was important for the parties to focus on the needs of the child rather than any artificial construct developed from external research.[1] She agreed with the father that the provision of a photograph of him would help as would the provision of some comfort toys to facilitate the transition from one parent to the other. She commented that it would help if the the child had the same routine in both parent’s houses and that she have the opportunity to communicate with the mother if necessary. She also felt that the child’s enjoyment from her time with each parent would be diminished if the parents are unable to communicate. The child will pick up on the tension between the parents.
[1] My words, not hers
This suggests that the research-based recommendations about the time that little children will spend with a non-primary attachment parent might be somewhat premature in the child’s case. Most of the factors conducive to successful transition have not so far been achieved between the parents. That is not to say that they cannot or will not be achieved at some point, but it does suggest that at present the father’s urgency to institute overnight time might need to be curtailed.
The parties have expressed agreement that they should continue to work on the improvement of their parenting after separation by attending parenting courses. The Family Consultant recommended a program run in Canberra which was one of two such programs in Australia and was particularly directed towards the individual assessment of the attachment process for little children and the individual requirements of the family engaging in the program.
Both parents expressed a willingness to be involved in such a program although the father was somewhat reluctant about the fact that the program took place in Canberra. This was (I concede reasonably on his part) regarded as more difficult and somewhat inconvenient for him. The mother expressed an immediate willingness to be involved and to do whatever travel was necessary to make it happen. I do not draw any particular conclusion from the responding attitude of each of the parents. I draw some comfort from the fact that they were both prepared to undertake this process.
This all leads to a conclusion that while it is eminently desirable that the parties should not have to return to a court at any time, these proceedings may not bring all of the actions between the parties to an end.
The father expressed in the strongest terms the fact that the ending of these proceedings and giving of this my judgment would, he felt, have a beneficial effect on both the parties and give them a sense of closure (again my word not his). I hope that this would be so but given the history of the parties I am not quite as confident about this as he is.
In any event, it seems that as I have no crystal ball which will enable me to predict with certainty the way in which the child will develop or the continuing self-improving attitudes of the parties or the effectiveness of their conduct and their actions, or the effect of their attending the course recommended by Ms L or the effect of time and its ability to heal some of the emotional wounds of the parties. Any orders I make will involve a measure of faith. The ordered arrangements should not therefore be so attenuated as to attempt to cover situations a long time into the future. In due course I will indicate that the orders that I make about the child for the next couple of years. Short of there being some major incident between the parties I propose to make an order that would prevent either of them from making any further application to change these arrangements - except by consent - during that period.
At the end of that time, if the parties are unable to reach agreement about the progression of the time that the child will spend with her father, then regrettably, it will be necessary for them to resume the litigation process for a further determination of what is in her best interests at that time.
This is an unsatisfactory situation, but in my opinion, realistic because if the parties are unable to reach agreement after the period that I have referred to, then any orders that may attempt now to predict what would be best for the child at that point are unlikely to be accepted by the parties and almost invariably and inevitably further litigation will ensue.
I would hope that the parties might see the coming period as an opportunity for consolidation of at least the basic levels of cooperation necessary to ensure that the child has a happy and fulfilling young life. It is my sincere hope that they will do so. However, if they do not, in due course, either I or some other Judge will have to make a further determination.
Laws and orders do not change people’s behaviour. Only the parents in this case have the power to do what is necessary to ensure that the child has a fulfilled life.

Orders sought

The orders sought in this matter by the father are set out in Endnote 1[i]. The orders sought by the mother, including a number of orders which are not the subject of any formal application before this court and which are inappropriately included in matters sought by the mother in these proceedings are in Endnote 2[ii]. The orders currently applying to the parties and to the child are in Endnote 3[iii]. And the minute of orders put forward by the Independent Children’s Lawyer at the beginning of these proceedings is Endnote 4[iv].
I note that during the course of these proceedings I provided the parties with an opportunity to try to reach agreement about what appeared to be relatively minor financial matters still outstanding between them. That opportunity did not produce any resolution of these matters. Regrettably, this means that if the parties continue to be unable to reach agreement about these financial matters, one or both of them will have to file an application in the Court seeking orders in accordance with the provisions of the Family Law Act.
I note in passing that it would appear that the parties were divorced in January 2008 and that any application for division of property would need to be made in accordance with the Act within one year of the divorce. If the parties are contemplating making such an application, they should consult either a lawyer or the Act to determine precisely what the requirement may be.

The Law

The substantive amendments relating to shared parental responsibility have effected a significant change in the legislation governing disputes between parties about children. I set out the relevant legislative provisions for parenting cases hereunder to both outline the process that I must undertake in coming to a decision between the parties about the child and to remind the parents of the importance the Act places upon certain matters
Legislative Provisions for Parenting Cases Family Law Act 1975

Objects and Principles – s 60B

The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:

(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.

Best Interests – s 60CA

Section 60CA deals with the best interests of the child and provides that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Considerations for Determining Best Interests – s 60CC

In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:

Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations

(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

Section 60CC(4A) provides:

If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Equal shared parental responsibility – s 61DA

Section 61DA provides:

Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Consideration of Equal or Substantial and Significant Time – s 65DAA

The relevance of the presumption of shared parental responsibility, where it applies, is that it triggers the application of s 65DAA, which provides:

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and

(e) such other matters as the court considers relevant.

Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).

Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

The Issues

The father sees the arrangements between the parties as moving towards a time where the child spends equal time between each of her parents. This may or not be possible in the future but is not possible at present and I am conscious of the advice given by the Family Consultant about the difficulty of shared parenting in circumstances where the parties are in high conflict. The Family Consultant referred me and the parties to the article by Richard Chisholm and Jen McIntosh “Shared Care and Children’s Best Interests In Conflicted Separation A Cautionary Tale from Current Research” which provided some preliminary insights into these matters.
In short and without in any way attempting to paraphrase the carefully considered and thoughtful approach undertaken by The Honourable Mr Chisholm and Dr McIntosh, it would appear that unless parties are able to reach a fundamental level of cooperation, if they are in high conflict and if the child is unable to be shielded from that conflict (which would almost inevitably be the case) a substantially shared parenting arrangement will not be in the child’s best interests.
The second issue really relates to the extent to which the father has in effect recovered from the drinking which he saw as the catalyst for his violent actions in the past. The possibility that he might “lose it” in times of stress and revert to alcohol as a crutch[2] is a matter of grave concern to the mother.
[2] again one of his terms
The third issue is the ability of each of the parents to provide appropriately, physically and emotionally for the child. There is a certain reciprocity in the concerns of the parents in this area. The mother continues to be concerned that the father may not adequately look after the child - not through any intentional conduct on his part but through inadvertence.
She instanced, (without giving any prior warning by affidavit), two occasions on which she asserted that the child was returned with severe sunburn. The father was initially resentful about being confronted with these incidents and somewhat unbelieving that the sunburn was caused during the time that the child was with him. However, to his significant credit, by the end of the proceedings he appeared to have acknowledged that the sunburn must have occurred with him and independently asserted that he would take all proper steps to ensure that this would not happen again. I was impressed with this. It would have been easier for him to remain in denial and in my opinion, this acknowledgement by him provides a small glimmer of hope for the future.
For his part, the father sees the mother as continually interfering with what he sees as the child’s right to spend time with him. He believes that she is unable to emotionally support the child as well as the child requires. I saw no evidence that this assertion was true during the course of the proceedings. I do not doubt that the child has a reasonable understanding of the fact that her mother does not like the father. I suspect she also would be aware that her mother does not trust the father and if the child is to enjoy the time with her father in the future, it will be necessary for the mother to work hard on her emotional support for the child in this regard. The parenting course proposed by the Family Consultant will, in my opinion, be of significant assistance in this regard.
A further issue between the parties is the sharing of information about the child and the provision by each of them of an opportunity for the other parent to be involved simultaneously in events concerning the child’s education or medical welfare.
An incident in this regard was the child’s hospitalisation as a result of her febrile convulsions. The mother did not notify the father that she had been hospitalised until she was released from hospital about five hours later. This was and is deeply resented by the father. However, in the course of the somewhat acrimonious exchange between the parties about his matter in court (the Less Adversarial Trial does not make the parties less adversarial) it appeared that what the father would have done in similar circumstances might have been exactly the same as what was done by the mother.
I suspect strongly that the mother was of the view that if she notified the father he would have turned up and there would have been an incident which would not have contributed to the treatment and recovery of the child in those circumstances. Regrettably of course, unless opportunities are afforded, suspicion can never be finally put to rest.
Finally, the parties, as I mentioned earlier, have an issue about their coming into personal contact and this limits the opportunities for them to be more flexible in their handovers.

Applying the Law to these matters

Overall, as the Act provides, I must see the child’s best interests as my paramount consideration. I must consider as part of her best interests, the primary considerations of her having a meaningful relationship with both of her parents and the need to protect her from physical or psychological harm or neglect or violence.
Perhaps understandably, each of the parties sees the two primary considerations as applying differently. The mother sees the need to protect the child from physical and psychological harm as being a primary concern and that this limits the time she should spend with her father. For his part, the father sees the child’s having a meaningful relationship with him as transcending all other matters.
What a meaningful relationship is has not been finally determined by an authoritative Court however, there must be some relativity about this matter. It should, in my opinion, be interpreted broadly and as was pointed out by His honour Justice Kay in Godfrey v. Saunders[3] it is not necessary that meaningful relationship must necessarily mean an optimal relationship and other factors must be brought into account[4].
[3] (2007) FamCA 102
[4] See paragraphs 32, 33, and 44.
The Act further provides that there are additional considerations to be taken into account in determining what is in the child’s best interests. Neither of the primary considerations necessarily applies without taking some account of the additional considerations. Indeed the additional considerations include some matters already dealt with in the primary considerations.
In this regard, I should indicate that the child is of an age where her views are not likely to have any impact of the decision that I make. However, I am to some extent guided in this regard by the report of her relationship with each of her parents and her happiness to be with each of them.
The child has a relationship with each of her parents although it is conceded by all and assessed by the Family Consultant that she has a primary attachment to her mother. There are other members in her extended family with whom she should in the view of each of the parents, have a continuing and appropriate relationship. The present restriction of the time that the child spends with her father militates to some extent against the development of a relationship with the paternal extended family. That however, is an inevitable consequence of the relationship between the parties rather than any deliberate action on the part of any person including the mother.
Although both parents profess a willingness to encourage and to facilitate a close and continuing relationship with the other parent, neither has his or her heart in this matter at the moment. The emotional wounds between the parties notwithstanding the time that has now lapsed since they separated, are still very raw and if the parties are prepared to be as direct and unkind to each other as they were during the course of the proceedings when they were under observation in a court case, then it is hard to imagine that their conduct away from the Court is likely to be anything other than worse.

Neither party is at present proposing that there should be any significant chance in the child’s circumstances which would have an effect on the relationship with the other parent and in particular neither parent is proposing any arrangement which would involve the separation of the child from the other parent.
The parties have difficulty in communicating. The Family Consultant recommended that there should be some form of communication book. They tried this without a great deal of success so far. The father to his credit suggested there should be what he described as a “subjective diary” but I think he meant objective diary which would set out details of the child’s daily activities so that each of the parents could be informed of what happened when she was with the other.
While that appeals as a tool for re-establishing a relationship between the parties, it may not be effective unless the parties themselves are prepared to make an effort to make it work. I do not propose to mandate such a device. It would undoubtedly be useful for the parties to try it but unless they want to make it work, my order will not make the communication effective.
There are expenses and inconvenience associated with the handover at the Centacare premises but until such time as the parties relationship has been ameliorated, this is an unfortunate but inevitable consequence.
Interestingly, neither party asserts that the other does not have at least a basic capacity properly to look after the child. That is subject to some qualifications as I mentioned above, but the Family Consultant is supportive of the abilities of both of the parents and her opinion is important in this regard.
I note there is a measure of corroboration of their caring abilities by the child’s siblings.
It is not a matter of serious concern to me subject to the father remaining sober.
There are no particular circumstances in the background or culture of each of the parties which calls for any special arrangements for the child. The mother comes from New Zealand. But neither party suggested that there should be any particular cultural activities assigned for the child.
The parties have demonstrated both responsibility and irresponsibility in their attitudes to parenthood. The father is to be commended for his movement to the proximity of the child so that he could continue his relationship. The mother impressed me as being a person who may not have been very enthusiastic about the father but nevertheless believed he had a significant part to play in the child’s life. I felt her expressions of this view were genuine and that while she saw difficulties in fulfilling these objectives, she was nevertheless committed to them.
The issue of family violence and particularly the violence of the father towards the mother and towards her son H, was a consistent theme in the mother’s presentation. The father acknowledged that he had been violent in the past although suggested somewhat defensively that he had been the subject of violence himself through what he would I think describe as the verbal attacks of the mother on him.
He is a large man and I suspect could be somewhat intimidating to someone as slight as the mother. He also has a very strongly assertive personality and is in some cases amazingly intense in his pursuit of what he considers to be right. These factors combined with any history of physical violence would be likely to generate in all but the most robust a concern for physical safety. The mother expressed this on a continuing basis but did emphasise that it was his drinking that led potentially (catalytically as the father would have it) to the violence.
To some extent both parties were in agreement about the triggering effect on the father of alcohol. It therefore becomes important for me to make some determination about whether or not the father is likely to resort to drinking again in a way that would operate on or trigger any violent and irresponsible actions on his part.
The father claimed he had been abstinent for about nine months and only resumed drinking when he felt that it was no longer a “crutch” and that drinking was now something he could do socially. No one explored with the Family Consultant or called any evidence about what a recovering alcoholic should or should not do and while there were various references to “alcoholism” (including as I recall it, one even from the father himself), there was no diagnosis as such that the father was an alcoholic. If he were an alcoholic it may be that his return to even social drinking would be a matter of some concern.
However, I have no qualifications in this regard and I pass no opinion about whether this is so or not. I do note however, one disturbing factor. An e-mail which became Exhibit M2 with a number of photographs sent by the father towards the end of his period of abstinence, suggested an extremely melancholy attitude on his part and from the pictures which he quite presciently feared would be used against him, he was not coping at all in his house. He said somewhat dismissively about this that he was the only one affected by the mess he was living in. Certainly all reasonable evidence available to me about his current situation suggests that that is not his current habit or indeed his current environment.
He has also sought and apparently has complied with orders that provide that he would not drink during the time that the child is with him or immediately before that time. This is to his credit.
In summary, the relevant facts seems to be;
(a)The father did have a problem with drinking
(b)He would ascribe his problem to being reactive to the treatment he was receiving from the mother at the time. I do not accept that as being an excuse or even a valid explanation.
(c)When the father was drinking, both parents agree that he was violent and unpredictable.
(d)The father has certainly taken steps to overcome his problem in this regard. He has undertaken courses, although, as the Family Consultant says, “having information is one thing, putting it into effect is another”[5]. He has also undertaken a period of abstinence although the extent and the effectiveness of this is difficult to gauge given the e-mail I referred to above. He has agreed to orders and no one has suggested that he had not complied with orders that he would not drink when the child was with him. The mother suggested from time to time (although she got no joy in cross-examination with it) that the father had been purchasing liquor and was “seen to be purchasing liquor” in different places. This is neither inconsistent with what the father had been saying about his conduct or necessarily inappropriate. There was interestingly, no evidence of the father’s being intoxicated since he moved to the G area. If he had been intoxicated at any point, I have no doubt that the mother would have been very keen to let me know about it.
[5] 11:34am on 22 July 2008.
The family Report provides some corroboration for the father’s claim to have established some reasonable control over his drinking. In paragraph 4.1 it suggests that his alcohol and aggression scales “fall within the normal range” which indicates moderate alcohol use and a reasonable control over expressions of anger and hostility. However, his assessment on the Personality Assessment Inventory was subject to some question because he had apparently responded to test items “to present an overly favourable impression”. I raised this with the father over the course of the proceedings and he acknowledged that it may have been so although the consequences flowing from this are difficult to assess.
All in all, I am prepared at this stage to say that the evidence does not support that the father has a persisting problem with alcohol. On balance, all of the indications demonstrate that he has at least brought his problem, if indeed it was one, under control. It is a little concerning that the Treatment Rejection scale of assessment conducted by the Family Consultant suggests “[the father] sees little need for major changes in his functioning”. I have no doubt that the father may well say that that is because “they don’t need any change”, however, the extreme consequences of his conduct in the past would in my opinion, lead most people to conclude that vigilance and continuing or even perpetual vigilance was required to ensure there was not a reversion to what may be correctly described as aberrant behaviour.
As a consequence of that finding, in my opinion, it is reasonable to say that there are appropriate expectations that the father’s conduct will remain tractable, reasonable and controlled in the future. That will only, however, in my opinion, occur if he starts to be far more self-aware than he presently is and in particular recognises that both his physical presence and his intensity may well have an adverse effect on those with whom he is dealing.
I accept the assessment from the Family Consultant about the mother’s self-reliant and effective parenting. I am unable to determine that she actively sets out to undermine the child’s relationship with the father and in fact, all the indications I observed in Court in the witness box and in the way in which she questioned her former husband, suggest that this is not so.
That is not to suggest for a moment that she enjoys the father’s company, will enjoy it in the future or has any respect or regard for him. Any consequences for the child will be principally as a result of a subconscious absorbing of her mother’s views rather than any intentional actions on behalf of her mother. It does not make those consequences less serious. But it does mean that I could be reasonably confident that there will be no intentional undermining of the relationship with the father.
The Act requires that I should as a matter of preference make orders that would be least likely to lead to the institution of further proceedings. I have already canvassed this matter and I regret that this is not something I can do in this matter except in the limited form that I have suggested.

Equal Shared Parental Responsibility

The Act provides the assumption that there should be Equal Shared Parental Responsibility. The Act also provides that each of the parents have parental responsibility unless the court makes a different order. This is not a matter in which, in my opinion, the parents can effectively share parental responsibility. The conflict between them, their inability to communicate and the potential for opportunities for inappropriate conduct if they are in contact with each other regularly at present lead me to conclude inevitably that the primary responsibility for the significant matters relating to the child’s care, welfare and development should be left with her mother who is the person to whom she is primarily attached and with whom she would be spending, at least for some years, the bulk of her time.
Having said that however, I am concerned that the mother’s idea of sharing, (although she has volunteered in the course of the proceedings to share more things in the future), has been somewhat grudgingly given. In my opinion, the father should have some say, at least by way of consultation, about matters relating to where the child will go to school and should be involved, to the extent of having access to the child’s medical records through her medical practitioner and being advised of any treatment that she is receiving about her health and medical condition. Obviously, when the child is with him, the father should have responsibility for her care, welfare and development, but he should consult with the mother (and I am conscious of the connotations of the word “consult”) about enrolling her in activities which are of a significant or continuing nature.
In this regard, the father’s commitment to the child’s learning to swim is creditable on the one hand but in part indicative of his unilateralism on the other. I hasten to add that the father did (in accordance with e-mails that I have seen in the course of the proceedings), give some prior notice to the mother. It is also fair to say that the mother did not seek to have any involvement in that process. It is also fair to say that the mother had sought some elementary precautions because of the child’s getting an ear infection. These do not appear to have been accepted by the father.
How might this have been done better? - one might ask rhetorically. It would have been done better if the parties had been prepared to at least cooperate to the extent of agreeing on what was to happen and how it was to happen. It would have been done better if there had been proper attention paid to the potential health consequences of the activity. I cannot make orders that will make cooperation happen but I can make an order that would require the father to give notice of any activity in which he propose to enrol the child which will be of a continuing nature.
When the child goes to school, (which is beyond the scope of these immediate orders), she would undoubtedly prefer that both her parents were able to attend her school functions such as concerts. This may or may not be possible depending on what happens over the next few years. That, however, is a matter for the future not for the present.
As I have not applied the presumption of equal shared parental responsibility, I am not obliged to consider whether the child should spend equal time with each of her parents or substantial and significant time. However, even if the presumption were to apply, in my opinion, for the reasons I have set out above, it would be inappropriate for either of those circumstances to apply. What is significant time may well vary from parent to parent and circumstance to circumstance and if the parties are able to use the next period to develop an appropriate and cooperative relationship then it may be that in the future, the child will benefit from spending substantial and significant time with her father, however, again, this is a matter for the future, not for the present.
In the end, this is not a case in which one parent sought that the other parent should have no time with the child. By the time the proceedings had come to an end, it was reasonable to say that the parties were agreed that she would be living primarily with her mother for the next period, though not necessarily agreed about how long that period would be. Some years is an appropriate conclusion to be drawn.
I have so far as I am able to do so in the circumstances, made determinations about those matters which will impact upon the child’s best interests and the way in which she can most effectively develop her relationship with each of her parents. As a consequence, it seems to me that the orders that I should make would reflect, at least in the short term, the fact that the child may well not benefit from overnight time with her father until she turns three.
I accept that there is an element of arbitrariness in that determination in much the same way as each of the parents and Independent Children’s Lawyer has applied some, in each case, undisclosed reason. My reason is simply that the Family Consultant’s recommendation about children meant that the overnight time should commence in an ordinary case (if there is such a thing) when the child is between two and two and a half.
There are factors applying in this matter which suggest to me that there would be strains on the child if this were to occur sooner rather than later, hence it seems to me that the existing arrangements of the Friday night followed by the time on the Saturday should continue for a year.
When the child turns three, it would be appropriate, if the parents have not reached an alternative conclusion by that time, for her then to start spending the Friday night with her father and the whole of the Saturday. I would prefer to see the child going to her father earlier on the Friday if the parties work arrangements will permit it but I will leave the existing arrangements in place and hope that if the parents are able to find a measure of cooperation by starting earlier, they will do so.
The arrangement about the Friday night and the Saturday will continue, in my view, until the child attends school. I make no orders about that time. Again I hope that the parents may through their involvement in the courses and their concentration on the best interests of the child have come to a good working arrangement which is satisfactory to each of them and to the child by that time and require only the formality of the discharge of existing orders and the substitution of consent orders more appropriate to the circumstances then existing.
Similarly, while I see no alternative at the moment but for a continuation of the handover to occur at the Centacare Contact Centre, this is also a matter which in the fullness of time, should be capable of being changed. It would be better if the child were able to see her parents enthusiastically or at least neutrally and possibly amicably engaging in the hand-over together. However, unless things change dramatically during the parents’ attendance at the program recommended by the Family Consultant, I would see the existing arrangement persisting for not less than one year and in fact unless there was a substantial improvement in the relationship of the parties I would see it continuing until the child attends school.
I had indicated previously that I would impose an order that prevented either party, except in the event of their being a major change in circumstances relating to the child from seeking a change to these orders until the child attends school. This is a period of about three years, but in my opinion, that would provide the child with some stability and some routine which I hope will be of some assistance to her in the future.
Finally, I commend the parents for their honesty and for their dedication to their daughter. They leave this court with my very best wishes and hope perhaps not expectation, that there is a basis for a future in which the child represents the focal point of both of their lives.
Finally, to make it certain that I have not been thought to have overlooked it, the father’s alleged cross-dressing (which in part is admitted) does not affect my determination about the child’s best interests. I accept that if he were to engage in this activity in a blatant and extreme form in her presence or perhaps publicly with her then this would cause her distress and embarrassment as she grows older. There is however, no evidence which would lead me to conclude that the circumstances in which the father has worn female clothing were such as to cause such a difficulty with the child now or in the predicted period immediately following these orders.
When I made orders about the mother’s contravention of previous orders on 16 May 2008, I noted that I would defer the issue of the amount of compensatory time for the child to spend with her father until the finalisation of this trial. Having reached the finalisation, the conclusions that I have come to would not suggest that additional time by way of “compensation” would be appropriate. In the ordinary course of events I would have wanted to mark the court’s disapproval of a party’s taking the law into his or her own hands by making some additional order for time for the child to spend with her father in this case. However, the difficulties associated with arranging the handover at the Centacare Children’s Contact Service suggest to me that this is not appropriate and accordingly I make no order for compensatory time.
Nevertheless, lest this be taken as in some way an acceptance or acquiescence in the mother’s failing to comply with a court order, I make it clear that if there should be any proved contravention in the future without reasonable excuse, I may have to find an alternative means of handover to ensure that appropriate compensatory arrangement can be put in place.

I hope however, that the consistency of the orders and the routine that they develop will ensure that the child will have a pleasant time with her father and that her mother will be supportive of that process.

I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate:

Date:

[i] MINUTES OF ORDERS SOUGHT BY APPLICANT FATHER

1.All existing Orders in relation to the parties and the child […] born […] August 2006 are dismissed.
2.[The child] and her mother are to reside in the Illawarra region, and are restrained from relocating from the Illawarra region unless written permission is granted by the Father or further Court Order.
3.The Mother and Father will have equal shared parental responsibility for [the child].
4.(a) [the child] will spend time with her Mother on Mother’s Day of each year.
(b) [The child] will spend time with her Mother on her Mother’s birthday each year.
(c) [The child] will spend time with her Mother during the Easter period from 10:00am Friday to 5:00pm Monday in the year 2010 and each alternate year after that.
(d) [The child] will spend time with her Mother on Christmas Day from 8:00am to 1:00pm in the year 2008 and each alternate year after that; and from 1:00pm to 6:00pm in the year 2009 and each alternate year after that.
(e) [The child] will spend time with her Mother on all other occasions other than the time [The child] spends with her Father.

5.
(a) [The child] will spend time with her Father on Father’s Day of each year.
(b) [The child] will spend time with her Father on her Father’s birthday each year.
(c) [The child] will spend time with her Father during the Easter period from 10:00am Friday to 5:00pm Monday in the year 2009 and each alternate year after that.
(b) [The child] will spend time with her Father on Christmas Day from 1:00pm to 6pm in the year 2008 and each alternate year after that; and from 8:00am to 1:00pm in the year 2009 and each alternate year after that.
6.(a) [The child] will spend time with her father each Saturday from 10:00am to 5:00pm.
(b) [The child] will spend time with her father each Thursday from 10:00am to 5:00pm.

7.When [the child] attains the age of two (2) years old she will spend time with the Father as follows:
(a) [the child] will spend time with her Father each alternate weekend from 10:00am Saturday to 10:00am Sunday beginning on the weekend after her birthday.
(b) [the child] will spend time with her Father each Thursday from 10:00am to 5:00pm.

8.When [the child] attains the age of three (3) years old she will spend time with the Father as follows:
(a) [the child] will spend time with her Father each alternate weekend from 10:00am Saturday to 8:00am Monday beginning on the weekend after her birthday.
(b) [the child] will spend time with her Father each Thursday from 10:00am to 5:00pm.

9.When [the child] attains the age of four (4) years old she will spend time with the Father as follows:
(a) [the child] will spend time with her Father each alternate weekend from 6:00pm Friday to 8:00am Monday beginning on the weekend after her birthday.
(b) [the child] will spend time with her Father each Thursday from 10:00am to 5:00pm.

10.Six (6) months prior to [the child] being enrolled into any school in the Illawarra region and before commencing Kindergarten the parties will enter into self-mediation or facilitated mediation if necessary, to discuss [the child]’s schooling placement and needs; and to discuss any variation to [the child]’s contact arrangements required in relation to her schooling schedule(s).
11.Both parties are permitted to attend [the child’s] first day of Kindergarten.
12.When [the child] attains the age of two and a half years (2 ½) old either party is permitted to have reasonable contact with her by way of telephone whilst she is in the other parties care; and the parties are to provide each other with a land lime telephone number for contact to occur.
13.each party is to advise the other immediately of any medication, doctor’s visits and/or hospitalisation whilst [the child] is in their care, which [the child] may require from time to time; and if [the child] is hospitalised for any reason either party is to advise the other party immediately upon her hospitalisation the location of the hospital so that either or both parties can attend to [the child] during the term of her hospitalisation.
14.Each party is to inform the other party of any change of their residential addresses in the Illawarra area and/or contact telephone number(s) within seven (7) days of the same change(s) being made.
15.Each party is to immediately inform the other party of the name and location of any child care centre that [the child] may attend from time to time whilst in either parties care.
16.The parties may vary the time [the child] spends with either party as agreed in writing between the parties from time to time.
17.Each party is restrained from making any derogatory and/or slanderous remarks about the other party in [the child]’s presence.
18.Each party is permitted to have reasonable contact from time to time with the other party by way of telephone, written letter, SMS text or Email to discuss [the child]’s contact arrangements, day to day care, welfare and health.
19.Handovers or [the child] will occur inside McDonald’s […] unless otherwise varied by the parties as agreed in writing from time to time.
20.The Mother is to attend and complete an accredited anger management program and a Parenting After Separation program if she has not already attended and completed the same programs; and upon completion of both programs she is to file a copy of the certificate(s) of attendance with the Court and serve copies on the Father before 31 August 2008.
21.The Father is to attend and complete a parenting program that focuses on early child development; and upon completion of the program he is to file a copy of the certificate of attendance with the Court and serve a copy on the Mother before 31 August 2008.
22.The Mother and Father are to make every endeavour to improve their parenting relationship with the assistance of the [G] Family Relationship Centre or any other relevant agency.
23.The Mother and Father are restrained from consuming alcohol or any other illicit drug whilst [the child] is in their respective care.
24.Liberty to apply to the Court on short notice.

[ii] MINUTE OF ORDERS SOUGHT BY RESPONDENT MOTHER

1.[The child] resides with the Mother full time – [Ms Kings].
2.SUPERVISED access with [the child] every Saturday 10:00am – 5:00pm at Centacare [G], until such time the Father – [Mr Murray] can address his alcohol abuse problem and have control of his verbal abuse. Proof of rehabilitation to be provided to both Centacare and the court.
3.No self access by [the mother] due to verbal abuse, stand over tactics and being followed/stalked by [the father]. I fear for my safety and the safety and well being of my daughter/children. It is the courts duty to protect myself and my children from such an abusive person. Refer to attached police statement marked A and affidavit marked B.
4.No overnight access at this point of time. I fear for [the child’s] safety and well being.
5.[The father] to present proof of attending ‘Parenting After Separation’ Course as not attached in [the father’s] affidavit. Refer to attached marked C.
6.[The father] to contribute financially to [the child’s] everyday needs and requirements. Currently receiving $6.83 per fortnight. In arrears of $1249.29 (as of April 2, 2008) with Child Support Agency.
7.[The father] to present proof of claim to the court all tax returns dated from 2002 to 2007.
8.File CAF509/2006 to remain in the ACT.
9.Request the court to intervene in regard to outstanding Visa Account ($10,675.79). It was arranged with [the father] that he would remove my name from the three accounts we had in joint names. I had no interest in the family home, [the father’s] super, my lost savings I brought into the marriage (18K) or the cars. I returned 4 door BMW and signed over ownership of 2 door BMW, back July/Aug 2007. [The father] informed me by phone, the 4 door would be going back to Queensland and be sold there. Car to be sold to pay out my portion ($5K) and remove my name form the debt. Home Loan was paid out 5^th June 2007 (refinanced with Secure Funding), Portfolio Account was paid out 23^rd April 2007. Visa Account – still remains unpaid and now in the hands of Credit Corp Group. If the court is unable to intervene then I will have to seek a property settlement against [the father].

[iii] FAMILY LAW ACT 1975
ORDER

FAMILY COURT OF AUSTRALIA CAF 509 OF 2006
AT CANBERRA

BETWEEN:

[MR MURRAY]

AND:

[MS KINGS]

BEFORE THE HONOURABLE DEPUTY CHIEF JUSTICE FAULKS

On the 26^th day of November 2007

APPEARANCES: [The father] appeared for himself

[The mother] appeared for herself
Ms Romano is the Independent Children’s Lawyer

IT IS ORDERED THAT:

1.[The child], born […] August 2006, will continue to live primarily with her mother.
2.The parties will not have equal shared parental responsibility for [the child].

3.
(a)[The child] will spend time with her father between the hours of 10am and 5pm each Saturday with the handovers in relation thereto being facilitated through Centacare Children’s Contact Service.
(c)She will spend time with her father on each Thursday between the hours of 3pm and 5pm with the handovers occurring at McDonald’s Family restaurant at […] with each of the parents being present for the purposes of handing [the child] over. The time [the child] will spend with her father on Thursdays will commence on Thursday 29 November 2007.
(d)During the period of any such handover neither parent will communicate with the other except in relation to [the child] and each parent will promptly leave the premises immediately after the handover had occurred.
(e)If the arrangements set out in the last two suborders do not prove to be satisfactory either parent may arrange through the Case Coordinator for re-listing of the matter on an urgent basis by telephone before me.

4.Each of the parties will take such steps as may be necessary to enrol for the mediation program through the Family Relationship Centre at [G] and will attend all appropriate intake and information sessions in preparation therefore.
5.This is a matter in which I would be assisted by a Family Report from the Family Consultant Ms [L] who will prepare a report in accordance with Terms of Reference to be identified by me in chambers, initialled, sent to each of the parties and delivered to the Family Consultant.
6.During the course of the preparation for such report if Ms [L] forms the view that it is appropriate that there should be some independent or other intervention particularly related to what appears to be a continuing questions between the parties about the effect, if any, that [the father’s] drinking or his level of drinking may have upon his ability properly to parent [the child] then she may make arrangements for the matter to be re-listed before me with a view to my making further orders about that proposed intervention.
7.I note that [the father] will consult with the appropriate police authorities with a view to changing the bail conditions that are presently imposed upon him as a result of his alleged breach of the apprehended violence order in place against him at this point to determine whether those conditions can be changed with the consent of [the mother] to enable him to communicate with her but only about [the child] through the communications book maintained at Centacare Children’s Contact Service for which the parties use as a facility in relation to the time that [the child] will spend with her father.
8.The matter will be adjourned for a telephone continuation of this process until Friday, 7 March 2008 at 10am on that day. The arrangements about communication by telephone will be communicated with the parties by the Case Coordinator.
9.By consent, [the child] will spend time with her father on this Christmas Day between 9:30am and 3:00pm. The handover at 9:30am will occur outside the police station at […] in New South Wales and [the child] will be collected by her mother at 3pm from the Rainbow centre at […] in New South Wales.
10.[The mother’s] application for a divorce which has been served by post in accordance with an order dispensing with service mad eon 7 November 2007 are adjourned for finalisation before me at 4pm on Tuesday, 4 December 2007 to enable [the father] to consider his position in relation to the application.

By the Court

Judge

[iv] MINUTE OF DRAFT PROPOSED ORDERS FROM INDEPENDENT CHILDREN’S LAWYER

1.That [the child] born on the […] August 2006 reside with the mother.
2.That the parties have equal parental responsibility for the child’s health and education and general well being.
3.That the child spend time with the father as follows:
i.Each Thursday from 1pm to 5pm until the child attains school age and then after school to 7pm. Father to pick up child from school and return to […] at McDonalds Family Restaurant.
ii.Each Saturday from 1pm to 5pm until the child is 3 years of age and then from Saturday 1pm to 10am on Sunday until she attends school and any other time by prior arrangement in writing between the parties. For the purpose of these orders when Centacare in [G] is open and available it shall be the point for exchange and all other times the […] McDonalds Family Restaurant shall be used.
iii.Father’s Day
iv.Child’s birthday for 4 hours from 9am to 1pm until the child attains school age and then from 4pm to 7pm.
v.Father’s birthday from 9am to 1pm.
vi.Easter Day to alternate commencing with 2009 with the Father from 10am to 6pm.

vii.Christmas Day to alternate commencing with the father in 2008.
viii.One half of school holidays, first half with the father.

4.The parties shall communicate in writing until they are able to address each other without friction and each shall keep the other informed on all matters relating to the child’s education and health and supply the other with names of the child’s doctors, school teachers and any other person involved with the child on a regular basis and each party shall inform the other immediately if the child becomes sick or in need of medical attention.
5.Each party shall be supplied with the school records and health records of the child.
6.Each party is to refrain from making derogatory remarks about the other in the presence of the child.
7.Each party shall inform the other of his or her intention to change the residential address of the child and supply any new address.
8.Each party shall refrain from consuming alcohol or illicit drugs during time with the child or 24 hours before spending time with the child.
9.The parties shall attend the [G] Relationship Centre to try and improve their relationship.
10.Neither party shall remove the child from Australia or the State of New South Wales without prior written consent of the other.
11.

[2008] FamCA 580

25 July 2008

Key Legal Topics

Areas of Law

Family Law