NDIAYE & GUEYE

[2014] FCCA 45

FEDERAL CIRCUIT COURT OF AUSTRALIA

NDIAYE & GUEYE [2014] FCCA 45

Catchwords:
FAMILY LAW – Parenting – [X] aged 12 years – separation prior to [X]’s birth – litigation over 5 years – history of unsustainable contact arrangements – Father's past history of alcohol abuse – poor parental alliance – [X]'s health issues require parental vigilance – limited time ordered.

Legislation:
Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Cases cited:

MRR v GR [2010] HCA 4

Applicant: MR NDIAYE

Respondent: MS GUEYE

File Number: MLC 11575 of 2009

Judgment of: Judge Sexton

Hearing dates: 22 & 23 August and 31 October 2013

Date of Last Submission: 31 October 2013

Delivered at: Sydney

Delivered on: 15 January 2014

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondent: In person

Counsel for the Independent Children's Lawyer: Ms O'Rourke

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

THE COURT ORDERED BY CONSENT AND ON A FINAL BASIS ON 31 OCTOBER 2013 THAT: 

1. ……

2. Except as provided by Order 3 the parties shall have equal shared parental responsibility for the child, [X] (‘[X]’), born [in] 2001.

3. Other than for emergency treatment when in the care of the Father the Mother have sole parental responsibility for decisions relating to the health of [X].

4. [X] live with the Mother.

5. In addition to the time that the Child spends with the Father as set out in these Orders and subject to the Father being in compliance with Orders (9) and (15), [X] spend time with the Father:

   (a)On Father's Day from 9.00am to 6.00pm; and

   (b)On [X]'s birthday from after school to 6.00pm if a weekday and from 4.30pm to 7.30pm if on a weekend of non-contact weekend.

6. The parties be entitled to attend all events involving [X] including:

   (a)Sporting fixtures;

   (b)Extra curricular activities that allow for parental attendance;

   (c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions; and

   the party who has [X] in his/her care on the day of such activity be  responsible for his day to day care at such event and his transportation to and from that event.

7. [X] have liberal communication by telephone with the Father at reasonable times as follows:

   (a)Between 7.30pm and 8.00pm each Monday, Wednesday and Friday, with the Father to telephone [X] on the pre-paid mobile provided by the Father; and 

   (b)At any other reasonable time when [X] may wish to telephone the Father.

8. For the purposes of facilitating [X]'s time with the Father at the commencement of contact periods, the Mother deliver [X] to the Father at [omitted] Plaza and collect [X] from the Father’s residence at the conclusion of [X]’s time with the Father.

9. The Father be restrained from drinking any alcohol for 24 hours before and during any time [X] is spending with him and the Father’s time with [X] in these Orders is conditional upon the Father complying with this Order.

10. Both parties are restrained from initiating any discussion about [X]'s hair, including requesting or suggesting [X] change his hairstyle, and the court notes [X] will make a request of his Mother when he wishes to have his hair cut.

11. Both parties are restrained from making threatening, critical or derogatory comments about the other parent to or in the presence or hearing of [X] and that each party do all things necessary to ensure that no third party makes threatening, critical or derogatory comments about the other party to or in the presence or hearing of [X].

12. Both parties are restrained from discussing these proceedings with or in the presence or hearing of [X] or showing [X] any documents filed or exhibited in these proceedings and that each party do all things necessary to ensure that no third party discusses these proceedings with or in the presence or hearing of [X] or from showing him any documents filed or exhibited in these proceedings.

13. Both parties are restrained from taking the any photographs of [X] solely for the purposes of making a complaint about the other party’s parenting. 

14. Both parties are restrained from asking or suggesting to [X] that he spend a greater or lesser amount of time with his Father than set out in these Orders; noting that the time [X] is to spend with his Father under these Orders is the minimum time that both parties are to facilitate [X] spending with the Father and if [X] advises both the Mother and Father on any occasion that he wishes to spend a longer period with the Father then both parties shall facilitate that longer period.

15. The Father shall attend Dr C for relapse prevention alcohol counselling on not less than two occasions per year, or at such frequency as Dr C may recommend, and the Father shall comply with all recommendations of Dr C, including attending more frequently should Dr C recommend more frequent appointments and will follow all recommendations of Dr C (including any referrals to complementary services), and the Father’s time with [X] is subject to the Father attending appointments with Dr C in accordance with Dr C's recommendations as to treatment and frequency of treatment.

16. The Court grants leave to the Independent Child's Lawyer to provide a copy of these Orders and the Reports of Dr L dated 29 December 2010 and Dr B dated 24 February 2011, 6 December 2011 and 5 August 2013 to Dr C.

17. During any period during which [X] is with the Father, in the event of [X] being hospitalised or receiving medical attention, the Father shall notify the Mother as soon as practicable (and in any event within two (2) hours) after his first contact with either the medical practitioner, medical centre or hospital AND at that time provide details to the Mother including the details of the illness, injury, the treating doctor and the prognosis and treatment of [X] (if known).

18. The Mother shall advise the Father in relation to the attendance of [X] on any medical specialist for [X] and that such medical specialist include any specialist medical practitioner; dentist; orthodontist; speech pathologist; occupational therapist or other therapist (hereafter referred to as ‘consultant’) PROVIDED THAT in the event [X] is referred to any such consultant:

    (a)On the Mother obtaining the appointment, she inform the Father in writing as soon as practical of any specialist medical appointments (and in any event prior to the first such appointment);

    (b)The Mother shall, as soon as possible after the initial appointment is made (and in  any event prior to the date of the first appointment), authorise the consultant to discuss all matters relating to [X] with the Father and upon the Father’s request provide the Father with copies of any test results, letters of referrals, reports, and letters received from and by any such consultant, provided that the Father pays the consultant's reasonable costs in providing the documents;

    (c)Within 48 hours of the Mother providing the authority the Mother will notify the Father by text message that she has provided the authority in Order (b).

    (d)The Father is permitted to consult or make an appointment with [X]’s General Practitioner once every three (3) months to obtain oral information about [X]'s health.

19. The parties shall ensure they are civil to any practitioners treating or assessing [X].

20. Whenever [X] is admitted to hospital as an inpatient then these Orders provide an authority to the hospital to provide both parents with any information about [X]'s medical condition and progress. 

21. In the event the Mother has not already done so the Mother within 14 days of the date of these Orders (and within 14 days of [X]’s subsequent enrolment at any school) shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school [X] may attend from time to time, that school forward directly to the Father:

    (a)Copies of each of the school reports and merit cards;

    (b)Any written material pertaining to the child’s academic and  extracurricular activities; and

    (c)Any events that parents are invited to attend or participate in.

22. Within 28 days the Mother notify the Independent Children’s Lawyer of a postal address for [X] to enable the Father to post items/gifts to [X].

23. The Independent Children’s Lawyer advise the Father of those details ([X]’s postal address).

24. The Mother notify the Father of any change to either her or [X]’s contact details (including landline, mobile numbers, and email address) within 48 hours of such change occurring.

25. The Father is to notify the Mother of any change to his contact details (including residential address, landline, mobile numbers and email address) within 48 hours of such change being occurring

26. Each party within 7 days contact UNIFAM on [phone] to undertake intake procedures for the Keeping Contact Program and each party attend appointments as required by UNIFAM.

27. Each party shall comply with the requirements of the program and the recommendations of the program coordinator including any referrals to complementary services.

28. Both parties meet the costs in accordance with the Centre’s protocol.

AND THE COURT FURTHER ORDERS THAT:

1. Subject to orders (9)  and  (15),  [X] spend time with the Father as follows:

   (a)During school terms in 4 weekly cycles as follows:

   (i)In Week 1, from 10.00a.m. until 8.00p.m. each Saturday;

   (ii)In Week 3, from 5.30p.m. Friday until 8.00p.m. Saturday;

   (iii)At any other time agreed between the parties or requested   by [X].

   (b)During the April, July and September public school holidays, for two periods of not less than two consecutive nights as agreed between the parties, and if no agreement, then from 10.00a.m. on Tuesday until 8.00p.m Thursday during each week of the holidays;

   (c)During the Christmas school holiday period for four (4) periods of not less than two (2) consecutive nights as agreed between the parties, and if no agreement then from 10.00am Tuesday to 8.00pm Thursday in the last three weeks of  the Christmas school holiday period and from 10.00am Friday to 8.00pm Sunday of the last weekend of the Christmas school holiday period;

   (d)From 10.00a.m. Christmas Eve until midday on Christmas Day in 2014 and all years ending in an even number thereafter;

   (e)From midday on Christmas Day until 6.00p.m. on Boxing Day in 2015 and all years ending in an odd number thereafter;

   (f)For the purpose of these orders the school term and Christmas    school holidays are deemed to commence at 9.00am on the first     day after the NSW public school term ceases and are deemed to end at 6.00pm on the day before the NSW public school term   resumes, but shall not include pupil free days;

   (g)Such other or alternate times as agreed between the parties.

2. If [X] is not otherwise with the Mother, [X] spend time with the Mother:

   (a)From midday on Christmas Day until 6.00p.m. on Boxing Day in 2014 and all years ending in an even number thereafter;

   (b)From 10.00a.m. on Christmas Eve until midday on Christmas Day in 2015 and all years ending in an odd number thereafter;

   (c)On Mother's Day and on the Mother's birthday from 9.00am to 6.00pm.

3. Subject to the Mother giving not less than 14 days written notice to the Father, the Mother may elect that [X] spend time with her for a block period of two (2) weeks each Christmas school holiday period, provided that the block period does not cover the last weekend of the Christmas school holidays and the period from 24 December to 26 December.

4. The Mother be restrained from contacting [X] during periods [X] is in the Father’s care, unless an emergency.

5. The Father forthwith engage in a programme known as “Emotionally Attuned Parenting” run by the Department of Health. 

6. Until further order or until the Child attains the age of 18 years, the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the Child [X] (‘[X]’), born [in] 2001 (male) from the Commonwealth of Australia.

7. The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said Child from the Commonwealth of Australia.

8. Until further order or until the Child attains the age of 18 years, the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said Child’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

9. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

MLC 11575 of 2009

MR NDIAYE

Applicant

And

MS GUEYE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns parenting arrangements for the parties' only child, [X] aged 12 years. The parties lived together for approximately one year, separating when the Mother was pregnant with [X]. [X] has always lived with the Mother. The parties have never established a constructive co-parenting relationship.  Parenting arrangements have been agreed between the parties from time to time over the past 5 years, but the arrangements have always broken down within a short time. Consequently, [X] has been never experienced a regular, stable pattern of time with the Father.    

2. The matter has been before the Court since late 2009, when [X] was 7 years of age. Dr B, clinical psychologist, has prepared 3 comprehensive expert reports for the Court, and Dr L, psychologist, has assessed the Father in relation to his alcohol abuse. The Court has endeavoured to help [X] over the past 5 years to develop a relationship with the Father, because it is satisfied that [X] has much to gain from a strong relationship with him.

3. The matter has been complicated by [X]'s medical condition and the risks he faces if he needs urgent medical treatment and does not receive it. In addition, the Father has a past history of chronic and excessive alcohol consumption, which causes the Mother ongoing concern about [X]'s safety when in the Father's care. 

4. The Father’s conduct and the entrenched distrust of the Father by the Mother over a long time, makes it almost impossible for [X] to spend sustained time with his Father in a relaxed way.  I have formed the view that no Court order will improve [X]’s predicament in this regard. I agree with Dr B and the Independent Children's Lawyer's counsel that, although [X] wants a relationship with the Father, because of the destructive dynamic between the parties, he is unable to express that wish by actually spending time with the Father.  

5. Each party was represented until shortly before hearing but each was unrepresented at the hearing. Despite Court directions for the filing of affidavit material for trial, neither party filed any affidavit material after late 2011.   

Background

1. The Father, aged 44 years, was born in [country omitted] and migrated to Australia in 1993 on a sports visa to play [omitted].  He has been a permanent resident since 2003. The Father has a son, [Y], from a previous relationship, now aged 17 years. [Y] and his mother have lived in Perth for the past approximately 10 years. The Father now lives alone in [omitted] in rented accommodation. He has a girlfriend, Ms F, who has a son, aged 10 years. The Father has been a talented sportsman and is studying [omitted] at the [omitted] University attending 4 days a week.  He has completed [omitted][1]. The Father has suffered from an alcohol addiction in the past.

   [1] At paged 41 of the transcript of proceedings on 22 August 2013

2. The Mother, aged 32 years, lives with [X] in [omitted], and is employed by [omitted] from Monday to Thursday each week from 9 a.m. until 4.30- 5p.m. as an [occupation omitted]. She has not re-partnered.

3. [X] was in Year 6 at [omitted] Public School at the time of final hearing. He has a condition known as Moyamoya disease, diagnosed in May 2010 after he experienced several transient ischemic attacks. He underwent 3 brain operations in 2010.  Moyamoya disease is referred to in a report read by the Father onto the transcript (but not identified) as “a chronic and progressive narrowing of the internal carotid arteries in the brain.” [2]

   [2] At page 17 of the transcript of proceedings on 22 August 2013

4. This means [X] has an increased risk of stroke, be it minor or major.  He has high blood pressure. His condition is currently stable but requires vigilance in those around him for any symptoms of an impending stroke. The parties agree that he has a language disability as a result of his condition, which causes him to struggle at school.  [X] sees his paediatrician every 4-6 months. He will have a sleep test in March 2014.

Orders made by consent at end of hearing

1. Orders were made by consent at the end of the hearing providing for [X] to live with the Mother.  Orders were also made by consent in relation to parental responsibility, the parties' attendance at [X]'s school and sports events, telephone communication, changeover arrangements, restraints on each party, the Father's attendance on Dr C in relation to counselling for alcohol use, and the sharing of information between the parties in relation to [X]'s health and education.  The Court also ordered, pending final order, that [X] spend time with the Father each alternate weekend from 5.30p.m. on Fridays until 8 p.m on Saturdays. 

Issues

1. The outstanding issues for determination on a final basis concern [X]'s time with the Father during school terms and school holidays and on Christmas Day. 

Orders sought by each party

1. The Father seeks orders providing for [X] to spend time with him from Friday afternoon to Sunday afternoon on one weekend in four, and from Friday to Saturday at 8 p.m on another weekend in four, so that [X] would spend time with the Father each alternate weekend, once for 1 overnight and the other for 2 overnights.  He seeks an order for [X] to spend alternate Christmas Days with each party.  At the end of the hearing, the Father said he would also like to be permitted to take [X] to Perth or to Bali for a holiday. 

2. In her Minute of Proposed Order dated 31 October 2013[3], the Independent Children’s Lawyer seeks orders providing for [X] to spend time with the Father from the commencement of the 2014 school year in 4 weekly cycles during school terms: in week 1 on Saturday from 10 a.m. to 7 or 8 p.m, and in week 3 from 4.30 p.m Friday to 7 or 8 p.m. Saturday. In addition, the Independent Children's Lawyer proposes [X] spend two consecutive nights each week in the short school holiday periods and four periods of not less than 2 consecutive nights in the Christmas school holiday periods. At the end of the hearing, the Independent Children's Lawyer submitted that she would also support [X] spending an overnight every second weekend during school terms. 

   [3] Exhibit 5

1. The Mother agrees with the Independent Children’s Lawyer’s proposal. 

Court expert’s recommendations

1. Dr B prepared reports dated 10 February 2011, 5 December 2011, and 5 August 2013.  Dr B recommends that the Court set an absolute minimum time for [X] to spend with the Father, to ensure their ongoing regular contact so that (hopefully) the relationship between [X] and the Father will grow to the point where [X] actively wants to spend more time with the Father.   As a minimum Dr B recommends full day alternate weekends[4] with an overnight on at least a monthly basis within that framework, taking into account [X]’s wishes. In addition, Dr B recommends 2-3 day blocks in school holidays if the Father can ensure that time is dedicated to [X]. He said “there needs to be a reasonable frequency of occurrence that is simply non-negotiable.”[5]

   [4] At page 4 of the transcript of proceedings on 22 August 2013

   [5] At page 5 of the transcript of proceedings on 22 August 2013

2. Dr B strongly recommends in each of his 3 reports that the parties seek a full psychometric and educational assessment of [X] through the Clinical Psychology/Neuropsychology department of the hospital where he is treated, and that the results be communicated to both parties and to [X]'s school, so they can all be involved in any remediation programme.

Short History of Litigation

1. The Father commenced proceedings in the Melbourne Registry of the Federal Magistrates Court (as it then was) in December 2009 when he made an urgent application for [X] to be placed on the Airport Watchlist.  Orders were made to this effect. The Court also made Orders providing for [X] to live with the Mother and to spend time with and communicate with the Father as agreed between the parties. The matter was transferred to the Sydney Registry.  

2. The matter first came before me on 13 July 2010.  Orders were made by consent for [X] to communicate with the Father by telephone.  The parties were ordered to attend a child inclusive conference with [X] and an Independent Children’s Lawyer was appointed.  The parties were referred to Catholic Care Contact Centre at [omitted] to complete an intake assessment. It was noted that supervised time would not commence prior to the next Court date.

3. On 6 August 2010 the Father filed an Amended Application seeking orders for [X] to spend time with him on alternate weekends from Friday after school until Sunday evening and for one half of all school holidays. In her Response filed on 3 September 2010, the Mother sought orders providing for [X] to spend time with the Father under supervision in a contact centre for 4 hours a fortnight for 12 months, and thereafter for 6 hours on alternate Saturdays.  The Mother sought an order restraining the Father from consuming any alcohol or drugs for 48 hours prior to [X] spending time with him or during contact periods.

4. On 20 August 2010, interim consent Orders were made for [X] to communicate with the Father by telephone at specific times.  

5. On 3 September 2010, the Father advised the Court that he had not consumed alcohol since December 2009 and had ongoing professional support. Dr B, clinical psychologist, was appointed to prepare a report for the Court.  Orders were made for [X] to spend time with the Father in hospital (where [X] had been admitted at the time) and when out of hospital for 4 hours each alternate weekend under supervision, with changeover at one of the Contact Centres. The Father was restrained from consuming any alcohol and orders provided for the Father to be breathalysed at the commencement of each contact occasion. If the Father had a positive result for alcohol or refused to take the test, then [X]’s time with the Father was to be suspended.

6. On 9 November 2010 the Court made an order for Dr L, psychologist with expertise in substance abuse, to report on the Father’s past and present alcohol use, its impact on the Father’s parenting capacity, and whether [X] was at risk because of the Father's alcohol use. At the request of the Independent Children’s Lawyer, an Order was made for the Father to undergo a Carbohydrate Deficient Transferrin (CDT) test and a Liver Function Test (LFT).

7. In January 2011, the report of Dr L was released and a copy provided to Dr B. 

8. On 24 February 2011, Dr B's first report was released. 

9. On 11 March 2011, the matter was listed for final hearing in December 2011. Interim Orders were made restraining each party from cutting [X]’s hair or arranging for a third party to cut his hair. Interim Orders were made by consent providing for [X] to spend time with the Father for 4 hours each Saturday (to be extended on occasions to allow [X] to watch the Father play football), with changeover at a Contact Centre when [X] was not in hospital, and for other periods when [X] was in hospital. The Orders required the Father to continue to be breathalysed at the commencement of contact time and an Order was made for the Father to consult a drug and alcohol counsellor at least once a month for relapse prevention treatment.  

10. On 6 September 2011, the hearing dates of 21 and 22 December 2011 were confirmed and an order was made for an updated Family Report from Dr B.  

11. On 22 December 2011, after hearing extensive hearing from Dr B and Dr L, the Court made interim orders providing for [X] to spend time with the Father each Saturday for 6 hours, (provided the Father had a negative breath analysis test) until mid- 2012 when time would be extended to 9 hours; on Tuesday afternoons from mid-2012; time on special days and during daytime periods in school holidays.  The Court also noted that it was anticipated that [X] would commence spending overnight time with the Father in 2013.  

12. On 16 November 2012, the Court noted that the Father did not wish to spend time with [X] under the Court ordered arrangements.  

13. On 26 March 2013, the matter was listed for further hearing in August 2013 and it was noted that the parties remained unable to agree on [X]’s time with the Father, namely a second night per fortnight or holiday time. 

14. In May 2013, the parties agreed that [X] would spend Friday night each fortnight and Friday and Saturday nights on a weekend each fortnight with the Father.[6]

    [6] Exhibit 7

15. At hearing on 22 and 23 August 2013, Dr B was cross examined at length. On 23 August 2013, the matter was adjourned part-heard.  I made an interim Order for [X] to spend time with the Father on 31 August 2013.  

16. On 6 September 2013, the Court made Orders for [X] to spend time with the Father each alternate weekend from 5.30pm Friday until 8.00pm Saturday and on each alternate weekend from 10.00am to 8.00pm on Saturday noting that [X] could, if he wished, stay with the Father overnight until Sunday morning.   

17. On 31 October 2013 the hearing was concluded. A number of final orders were made by consent, set out at the commencement of these Reasons.  Pending judgment, the Court made interim Orders providing for [X] to spend time with the Father on Saturday 2 November 2013 and on each alternate weekend thereafter from 5.30pm on Friday until 8.30pm on Saturday. 

Legal principles

1. These proceedings were commenced in 2009. Amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore do not apply.

2. The principles governing this case are set out in Part VII of the Family Law Act 1975 as it was at the relevant time. Section 60CA provides that I must regard the best interests of [X] as the paramount consideration. To determine [X]’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of [X], I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the [X]’s best interests being the paramount consideration. 

3. The primary considerations are firstly the benefit to [X] of having a meaningful relationship with both of his parents and secondly, the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.

4. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

   ·ensuring that the child has the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

5. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). 

[X]’s care history

1. The Mother was approximately 4 months pregnant with [X] when she moved out of the residence the parties shared, and the police made an application for an Apprehended Violence Order on her behalf.  [X] was born [in] 2001, and he and the Mother lived in a refuge until [X] was 10 months of age. The Mother says that the Father was denied access to the hospital when [X] was born because he was intoxicated.  

2. Until [X] was approximately 2 years of age, he spent time with the Father by agreement with the Mother, usually weekly during daytimes, and only when the Father was sober.  There was then a period of many months when [X] did not see the Father.  [X] then resumed time with the Father weekly on a Saturday with the Mother's agreement. Later overnight visits began. Time was suspended whenever the Mother believed [X] was not safe as a result of the Father’s excessive drinking. 

3. When [X] was 5 years of age, after mediation, he commenced spending supervised time with the Father. The Mother deposes to the supervisor being in a relationship with the Father and to failing to ensure the Father was not drinking before and when [X] was in his care, allegations denied by the supervisor and the Father. However, the arrangement was suspended in June 2007 when the Father left [X] at a police station, when intoxicated.  Time stopped. 

4. Nearly 2 years later, when contact had resumed, the Mother deposes to [X] reporting to her that "dad was acting funny" with him in a taxi and to feeling scared.  At the end of 2009, the Father initiated these proceedings.  

5. In early to mid 2010, the Father acknowledges that he relapsed and drank alcohol. The Father says [X] had no face to face time with him from 11 January 2010 until August 2010. 

6. In 2011, [X] spent time with the Father on Saturdays for approximately 6 hours, when the Father was breathalysed before contact periods began.

7. In 2012, orders provided for [X] to spend time with the Father on Tuesdays. The Mother deposes to making every effort to make this arrangement work.  However, she says that the Father often arrived late, once over 2 hours late, to drop [X] back to her.  The Mother deposes to the Father persistently denigrating her in front of [X] at changeover and to the Father not assisting [X] with homework which made the rest of the week difficult.

8. Between January and March 2013, [X] spent time with the Father each Saturday from 10 a.m until 7 p.m. or 8 p.m. 

9. On 8 March 2013, [X] commenced overnight time and overnights occurred between 3-5 times before the arrangement broke down at the end of May 2013.  [X] had not seen the Father for approximately 2 months when the hearing commenced on 22 August 2013.  Thereafter [X] spent time with the Father intermittently. 

10. From 6 September 2013 until the end of October 2013, [X] saw the Father on only three occasions, including one overnight.   

THE PRIMARY CONSIDERATIONS   

The benefit to the child of having a meaningful relationship with both of the child's parents

1. Each party wants [X] to spend regular time with the Father.  Dr B recommends [X] spends time with the Father, at least fortnightly because in his view, the Father has a lot to offer [X]. They share a talent for sport, and share an African ethnic background.  Dr B is convinced that [X] wants a relationship with the Father, but as a result of the poor alliance between the parties, in particular the Father's negative attitude to the Mother, and the Father's poor insight into what changes he needs to make to support [X] spending time with him, [X] has often strongly resisted spending time with him.

2. The orders proposed by both the Father and by the Mother will give [X] the opportunity to benefit from a meaningful relationship with both parties, if [X] actually spends the time proposed.  I am satisfied that the question is not which proposal the Court determines, but whether or not each party can make the changes necessary for [X] to actively seek time with the Father.  Unless the parties make these changes, [X] is unlikely to benefit from a meaningful relationship with the Father into the future. 

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. “Abuse” was, at the relevant time, narrowly defined in section 4 of the Family Law Act 1975 as sexual abuse or an assault of a child which is an offence under the law.   This is not an issue in this case.

2. “Family violence” was defined at section 4 of the Act, (at the relevant time) as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety. Although the Mother has made allegations about the Father's violence towards her both before and in the period after separation in 2000/1, neither the Mother nor the Independent Children’s Lawyer submits that the Father’s violence towards the Mother is a current issue which should affect the outcome of this case.

3. “Neglect” is not defined in the Family Law Act 1975 and therefore must be given its ordinary meaning.  I am satisfied that the significant issue here concerns the Father's past abuse of alcohol, the possibility of his relapse and the potential impact on [X], should that occur. Dr B says that given [X]’s age, if the Father starts drinking again, it would be a “no turning back” event.[7]

   [7] At page 10 of the transcript of proceedings on 22 August 2013

4. In his report of December 2010, Dr L, psychologist, gives details of the hardships suffered by the Father in the past.[8] The Father lived in a village in [omitted] until he was aged 14 years.  The report says:

   The village was terrorised by the civil war with army soldiers and guerillas, and he observed a number of atrocities including watching members of his extended family being beaten to death as well as villagers he knew.

   [8] At paragraph 4 of Dr L’s December 2010 report

5. Dr L reports that the Father was a talented sportsman and represented his country at international level in [omitted], eventually becoming a senior member of the National [omitted] Team. His refusal to denounce his (white) compatriots within the team as directed by President [omitted], resulted in him being set upon by thugs at various stages.  The Father successfully applied for asylum through his sporting contacts and came to Australia to play [omitted] in 1993, but was unable to obtain permanent residency until 2003 because of problems with the management of his immigration claim by his migration agent.  By then Dr L says "he had significant issues associated with managing the stress contributing to the acceleration of his alcohol use."[9] Then in 2004, the Father sustained significant injury which prevented him from working and from playing [omitted].  According to Dr L, the Father suffered from depression, anxiety and mood disturbance in 2004/5, exacerbated by his heavy use of alcohol.  Dr L says that the Father's parenting behaviours have been severely compromised by his alcohol use.[10]   

   [9] At paragraph 6 of Dr L’s December 2010 report

   [10] At paragraph 19 of Dr L’s December 2010 report

6. The Father says he was drinking to excess between 1999 and 2009, but the Mother says he was already attending AA meetings when they met in 1999.  Police notes from 1999 disclose violent incidents involving the Father when he has been affected by alcohol.  His criminal record begins in 1999 with two assaults in that year, both involving the Father when affected by alcohol. In 2000, police notes record the Father as "drunk" and exposing [Y], then aged 4 years, to potential harm by leaving him near the water on the beach and dragging him fully clothed into the water.  When the Mother was 4 months pregnant with [X], the Mother moved to a refuge as a result of the Father's aggression towards her while intoxicated.  The Mother says that after separation, the Father had a habit of denying drinking when it was obvious he had been drinking.  She says he used to jump over her balcony and knock on her window "drunk and in hysterics."[11]

   [11] At paragraph 26 of Mother’s affidavit sworn 19 December 2011

7. In late 2009, the Father commenced treatment at [omitted] under the care of Dr R.  A letter from that service states that the Father was suffering at that time from a co-morbidity of alcohol dependence and depression.[12] Police entries in relation to the Father's alcohol related behaviour stop in July 2009. The Father was then admitted to a WHO'S programme for 3 months.  In October 2009, the Father left WHOS, but relapsed on the day he left, and commenced rehabilitation at Mission Australia in Darlinghurst. Dr L’s notes recordings of the Father's "drunken behaviour" up until November 2009.

   [12] Annexure B of Father’s affidavit sworn 23 July 2010

8. Dr B says[13] that pathology reports providing results of CDT tests between November 2010 and November 2012 and again between June 2013 and July 2013 indicate no excessive alcohol use in the two weeks prior to each test.  Dr B notes that between May 2010 and October 2012 during a prolonged period of abstinence, the Father’s script of Zoloft indicated incremental increases as well as adding dexamphetamine to assist with the management of adult ADHD.  Dr B says his alcohol may have served as self-medication against depression, and that the Father may be struggling to maintain effective control over his emotional state. 

   [13] At page 9 of Dr B’s report dated 5 August 2013

9. There is no dispute that the Father has shown a much healthier profile since later in 2010[14]. In June 2010, the Mission Australia Centre wrote to the Court in support of the Father who was actively engaged in a range of courses. In August 2010, the Father commenced attending [omitted], a service for treatment and rehabilitation of torture and trauma survivors. The Father says he has completed training to be a [occupation omitted] and has turned his life around.

   [14] At page 22 of the transcript of proceedings on 22 August 2013

1. However, Dr L says that it will be a number of years before there can be confidence in the Father's ability to remain abstinent. 

2. A report from the Father’s General Practitioner, Dr H dated 24 February 2012 says the Father had raised liver function tests in May 2011, but a later report says there was an alternate rationale for elevated liver function tests and there were no concerns about the Father's alcohol use at that time.  There was no medical information available to Dr B from November 2012 to mid 2013. 

3. The Father's evidence is that he stopped drinking after July 2010[15].  The Mother says that in August 2010 the Father was on the telephone whilst intoxicated but does not allege, from her own observations, that the Father was intoxicated after that date. The Father has been receiving treatment from a psychiatrist from time to time since the end of 2009 and currently consults Dr C, psychiatrist, on a regular basis. 

   [15] At page 47 of the transcript of proceedings on 22 August 2013

4. However, on 7 March 2013, one of the Father's neighbours alleged that the Father was repeatedly walking past his house on the footpath outside, and therefore called police. The Independent Children’s Lawyer relied on an affidavit of Police officer, [Officer M], sworn 5 August 2013 as to what occurred.  [Officer M] deposes to himself and his patrol partner, [Constable G], knocking on the Father's door at approximately 1.30 a.m and the Father putting his head out an upstairs window. The Father then opened the front door. [Officer M] claims that the Father was “slightly slurring his speech”. The Father invited them in, but the officers asked him to come outside to talk.  [Officer M] says the Father was “unsteady on his feet and was staggering a little...he was unsteady on his feet during the conversation with [Constable G]… and continued to slump”. He deposed to smelling alcohol on the Father’s breath when the Father was talking.  He says the Father acknowledged having consumed a couple of alcoholic drinks. He says that based on his experience of coming across at least one person every shift in 15 months who have been drinking, as well as 25 years in the hospitality industry when he saw many people affected by alcohol, he formed the view that the Father “had been drinking alcohol, and that he was affected by alcohol on the night of 7 March 2013." The police report of that night[16] states that the Father appeared to be "very intoxicated".. "slurring his words" and "unsteady on his feet".    

   [16] Exhibit 4

5. The Father vehemently denies that he was drinking alcohol, as alleged. He says he invited the police in and says they came into the house.  The Father denies being unsteady on his feet and contends that he told the police he had not had any alcohol.  Dr B comments[17] that this event “appears coincidental to the timing of Mr Ndiaye no longer being required to provide supervised breathanalyses to be able to spend time with [X]”.

   [17] At page 7 of Dr B’ report dated 5 August 2013

6. The Father says there were 5 incidents in March involving neighbours (consistently with police reports), but no problems since 23 March 2013 and the neighbour has since apologised. The Father concedes that on one night in March 2013, when [X] stayed with him, [X] was woken in the early hours of the morning because people in the street were shouting abuse at him such as “go back to where you came from…”[18] [X] told Dr B about this experience and Dr B says it was upsetting for [X] and very likely to have had an impact on his present resistance to spending overnight time with the Father.   

   [18] At paragraph 86 of Dr B’ report dated 5 August 2013

7. On the evidence available, I find it more likely than not that the Father did consume alcohol on the night of 7 March 2013, but I am not persuaded that it should affect my determination.  I am satisfied and agree with Dr B, that the Father should be given credit for the significant progress he has made, whether or not he has had an occasional lapse since 2010.  Reverend L, Chief Executive Officer and Pastor of [omitted] Chapel provided a glowing report of the Father.  Reverend L says he has witnessed "one of the most remarkable turn arounds" in his 10 years at [omitted] Chapel.  He says that in the Father's early days at the Centre, he had to keep staff on the alert "because of the risks that came with the presence of this person onto our property" but that the Father is now a trusted and responsible member of the community.[19]

   [19] Exhibit 6

8. The Mother is understandably concerned about [X]’s safety when with the Father.  As already noted, if the Father did consume alcohol to excess, and [X] needed urgent medical assistance while the Father was intoxicated, the outcome for [X] could be catastrophic. However, Dr B believes that [X], at aged 12 and with his level of maturity, is now capable of exercising self-protective behaviours if he feels unsafe with the Father.  In his opinion, [X] will not see his Father at all if the Father starts drinking again.  Also, [X] cannot be under adult observation every minute of the day, and as he develops his independence, it will be impossible to completely eliminate risks to his safety.  I agree with Dr B that [X] would not stay with the Father if the Father's conduct worried or frightened him, and is now capable of exercising self-protective behaviours.  However, I find that it is necessary to impose conditions on [X] spending time with the Father, (terms agreed by the Father) and to limit [X]'s overnight time with him, until [X] himself chooses to extend that time.  

9. I give significant weight to my findings under this factor.

THE ADDITIONAL CONSIDERATIONS

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views. 

1. [X] told Dr B that he did not feel safe at the Father’s home “due to hearing fighting outside” and because the Father “always goes on about stuff”. He told Dr B that he wanted to visit the Father on alternate Saturdays between 10 a.m. and 7 p.m. with the option of staying longer if he wanted to.  He was clear that he did not want to stay with the Father overnight during school terms. However, he says he would be happy to stay with the Father for 2-3 nights in school holidays as long as he could spend his weekends with the Mother.   Dr B says the Court should “place measured weight upon the credibility of his expressed views.”[20] Dr B tells the Court, and I accept, that [X] is indicating a strong desire towards having regular, but time-limited and flexible contact with the Father.  In his view, [X] indicated that he would like to spend unsupervised days with the Father, and occasionally overnight stays, as long as he can return to the Mother’s home by Saturday evening in time for church and Sunday school, which he really enjoys. [X] also wants his parents to relate better at changeover.

   [20] At page 14 of Dr B’ report dated 5 August 2013

2. I give substantial weight to these findings.    

The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. Dr B noted observable differences in the way [X] related to the Mother and the Father during interviews, because of the time [X] has spent with each of them. [X] related to the Mother “in a trusting manner” and I am satisfied has a close, loving and affectionate relationship with her.    

2. In relation to the Father, Dr B says[21]:

   He appeared somewhat aloof from his father when they greeted each other in the reception area, and was resistant to (despite repeated requests) participating in a joint interview with his father.

   [21] At page 14 of Dr B’s report dated 5 August 2013

3. However, the Mother acknowledges that [X] has enjoyed happy times with the Father, and Dr B observed each parent’s appropriate and affectionate interactions with [X]. I accept Dr B’s opinion that [X] wants to spend time with the Father and that given their love and talent for sport in particular, they have the potential for a close and happy relationship.

4. I have regard to these matters. 

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

1. Regrettably, the parties have a very poor relationship. Each party knows that the other denigrates him/her in front of [X], and neither trusts the other.  Changeovers have at times been very unpleasant for [X] who tells Dr B he wishes the parties could get on better together.  [X] well understands his parents’ negative opinion of each other, which Dr B says is “a potential stressor” for him.[22]  Dr B emphasises the importance to [X] of each party addressing the problems between them, to give [X] a more secure and validating environment,[23] especially given [X]'s health issues. 

   [22] At page 17 of Dr B’s report dated 5 August 2013

   [23] Ibid

2. For the Mother's part, I find that her opinion of the Father is wholly negative as a result of her direct experience of him since before [X] was born, and unlikely to change, despite her acknowledgement of the improvement in the Father's mental health in recent years.  She has always found the Father to be unreliable, irresponsible and self-absorbed, with a very poor attitude to the responsibilities of being a parent.  The Mother has worked hard to support [X] and provide him with a secure loving base and resents the Father's persistent failure to share parental responsibility with her. While I accept that the Mother has tried to facilitate [X] having a relationship with the Father, and continues to support [X] spending time with the Father, I am not persuaded that the Mother appreciates the emotional harm she causes [X] when she expresses her anger towards the Father in front of [X]. Nor am I persuaded that the Mother appreciates the importance of not disrupting [X]'s time with the Father, during the short periods they have been together.  For example, on 5 October 2013, the Mother sent [X] a picture of a spider during a contact visit because she says he knows she is terrified of spiders and “I had an instinct I needed to contact [X]”. When asked in cross examination whether she would agree to an order restraining her from contacting [X] during contact periods, except in an emergency, the Mother said she would agree “unless I have feeling I should contact him.”   

3. The Father claims that at the end of May 2013, he introduced [X] to his girlfriend, Ms F. [X] told the Mother on the phone about the meeting. When the Mother arrived to collect [X], Ms F was staying with the Father.  The Father claims that the Mother shouted in front of [X] “you shouldn’t be talking about [X]’s hair; you’re an alcoholic; you’re a loser.”  The Father says the Mother then sent messages to him to say “[X] does not want to come to your house”.  

4. I agree with Dr B that the Mother needs to improve her communication with the Father about [X]’s medical treatment and his schooling, and must ensure she does not expose her negative opinion of the Father in [X]’s hearing. 

5. For the Father's part, I find that his opinion of the Mother is wholly negative, and that he is highly critical of her at every opportunity.  The Father blames the Mother when [X] resists calling him or resists spending time with him, and presents as either unable or unwilling to accept responsibility for his own role in the difficulties between himself and [X].  I do not accept the Father's denial that he makes any negative comments about the Mother to [X]. [X] reports to Dr B that the Father has made negative comments about the Mother in front of him. Dr B says the Father needs to understand that because [X] is very close to the Mother, he is likely to become defensive or avoidant if the Father makes such comments.  I also agree with Dr B that the Father should take responsibility for obtaining information about [X]’s schooling and health independently of the Mother.

6. I find that the hostility and lack of trust between the parties results in [X] finding it extremely difficult to relax and enjoy spending time with the Father, and this is a finding to which I give considerable weight in reaching my decision.  I am pleased that the Mother intends to arrange support for [X] through Unifam. 

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. I am not satisfied this factor is relevant.  The question in this case is whether [X] spends alternate weekends with the Father or more limited time. 

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

1. There are no practical difficulties in this case. 

The capacity of each of the child’s parents and 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

1. The Mother has demonstrated over a long period, her capacity to meet [X]’s needs, often under difficult circumstances.  Although, as already noted, I find the Mother needs to address her tendency to express her frustration at the Father’s behaviour in front of [X], I agree with Dr B that the Mother is “highly protective of [X], particularly reflective of his health conditions, developmental stage and cognitive ability.”[24] However, I find that she has always recognised [X]’s need for a relationship with the Father, and has substantially complied with Court orders to enable their relationship to develop. 

   [24] At page 12 of Dr B’s report dated 5 August 2013

2. A question arises as to the Father’s capacity to provide for [X]’s needs.  Even since the Father has abstained from drinking, the evidence discloses instances of the Father demonstrating poor judgment in relation to [X].  [X]’s overnight arrangement started on 8 March 2013 when the orders provided for [X] to spend time with the Father from 4.30p.m. Friday until 7 p.m. Saturday each alternate weekend.  This arrangement started but ended at the end of May 2013.  [X] had not seen the Father for approximately 2 months when this hearing commenced on 22 August 2013.  Thereafter [X] has spent time with the Father intermittently.  

3. During March 2013, as already noted, [X] reported to Dr B the Father being in conflict with neighbours, which unsettled and upset [X].  Exhibit 2 discloses the Mother's understanding of what occurred on the weekend of 17/18 May 2013.  [X] rang his Mother on Saturday morning to tell her "dad is telling me how to walk, how to talk and won't stop talking about my shaved head.”[25] The Mother spoke to the Father and told him his actions were immature and she would not pick up [X] early. The Father agrees he had said to [X] “no ipad, no headphones, no mobiles when with me” and when [X]’s hat fell off that he had said “oh, your Mum shaved your head again”.  The Mother picked [X] up at the scheduled time, when the Father said to her in front of [X] "don't bother dropping him off next week if he keeps shaving his hair."  

   [25] Exhibit 2

4. Two days before interview with Dr B in August 2013, the Father approached [X] after school, without prior arrangement, surprising [X] and his friends at the bus stop. The Father followed [X] who was with friends and heading to [shop omitted]. Despite [X]’s repeated advice to the Father that he could not go with him because his Mother knew nothing about it, the Father persisted, questioning [X] about why he could not stand up to his Mother.  Dr B says the incident appeared to impact on [X]’s desire to spend time with the Father.[26] His last contact with the Father before the final day of hearing, [X] rang to ask the Mother to pick him up straight away because the Father was accusing him of lying to the Court and to Dr B.  The Mother says that despite taking away his electronic privileges and “yelling at him”, [X] had refused to go to the Father’s home.   

   [26] At page 14 of Dr B’ report dated 5 August 2013

5. I find it regrettable that the Father has not taken advantage of the advice he has received from Dr B to improve his parenting capacity, over a long period.  For example, despite Dr B’s advice to the Father that because [X] and the Father both love sport, the Father is a [occupation omitted], and [X] needs to be fit, [X] would benefit from the Father engaging with him in an exercise routine, the Father has not done so.  Dr B says that [X]’s improved fitness would reduce his chance of suffering a stroke considerably.[27] At times, the Father has left [X] at home (during the very short periods [X] has been with him) while he [occupation omitted], which has sent a message to [X] that the Father does not prioritise him.  And despite Dr B’s advice to the Father about the need to create a validating environment for [X], the Father persists in criticising [X]’s behaviour when [X] is with him, and insists on strict compliance with his house rules. I agree with Dr B that the Father’s house rules are not unreasonable in themselves, but the Father’s desire to impose strict rules is not helping [X], but fuelling [X]’s resistance to spending time the Father.  I find the Father’s approach to [X] lacks sensitivity to [X]’s situation and shows poor insight into the nature of their still consolidating relationship.  I agree with Dr B that the Father needs to understand that he does not have the emotional bond with [X] that the Mother has, so [X] will withdraw/avoid the Father when he imposes behavioural standards “because he lacks the foundation of trust to know that the reconciliation process will follow after a disagreement.”[28]

   [27] At page 28 of the transcript of proceedings on 22 August 2013

   [28] At page 15 of Dr B’ report dated 5 August 2013

6. I also accept Dr B’s view that the Father fails to appreciate the significant adjustment [X] has faced when moving to overnight time with the Father at the age of 12 years, when he has no background of overnight time with him, and that the Father has not appropriately assisted [X] with this adjustment. [X] tells Dr B that in the 2 months during which he had overnight time this year, there were multiple incidents of conflict between the Father and other residents. [X] also said to Dr B that he and the Father argue and that “he just goes on and on at me about it, and it just gets too much for me.” [X] repeatedly declined to be seen with the Father with Dr B despite Dr B’s encouragement that he do so.  I accept Dr B’s opinion that [X] wants to understand that he is important to the Father.  [X] resists time with the Father because of these issues, all directly related to the Father, and within the Father’s control to address.  Yet the Father does not accept that he plays any role in [X]’s resistance to spend time with him.

7. Dr B has said in his three reports that [X] will benefit from a strong relationship with the Father.  Yet the Father has made it clear to the Court during the course of this litigation, that he does not accept or respect Dr B’s opinions. He arrived 3.5 hours late to his appointment for report interviews with Dr B in August 2013. The Father denied being aware of the appointment when his lawyers had confirmed the Father’s attendance, and the Father then said he was not intending to come. He was called by Dr B’s office and encouraged to attend.  Dr B says the Father presented as “highly agitated” … spoke rapidly, diverted off topic becoming louder as his agitation increased.  Dr B says of the Father[29]:

   He showed visible signs of agitation when discussing [X]’s noncompliance with his ‘house rules’ his perception of the Mother disregarding his wishes, and the anxiety caused by the Court processes… took a long time to calm down following the clinical interview.

   … His presentation appeared defensive and his mood appeared elevated…. His manner may have been viewed by others as intimidating.  …

   He appears to have a general naivete regarding psychological matters, which may include a possible lack of insight into himself and others.  He may be quite indecisive and easily upset or become anxious following deviations from his routine. 

   [29] At page 11 of Dr B’s report dated 5 August 2013

1. As already noted, the Mother raises concerns about [X]’s emotional and physical safety when with the Father, though acknowledges that [X] has enjoyed relaxed time with the Father swimming and cooking with him.  She says [X] finds it very difficult to hear the Father making negative comments about her, given hers and [X]’s very close relationship.  She is critical of the Father for not following through when he tells [X] he will do something for him, for taking photographs of his head because it is shaved or very short, or for questioning [X] about his health.  I share the Mother’s concerns about these issues.

   
   

   Dr B says [X] has his hair very short because he likes to show his scars and thinks they’re “cool”.  I find that the Father has been overly concerned about [X]’s hair length and that his constant irritation with [X]’s hair length has created unnecessary and avoidable tension between the parties and between [X] and the Father.  I agree with Dr B that the Father needs to respect [X]’s view rather than perceiving it as an action on the Mother’s part to get at him.[30]

   [30] At page 15 of Dr B’s report dated 5 August 2013

2. I find the Father demonstrates poor insight into the impact of his behaviour on [X] and on the Mother and must accept responsibility for the role he plays in [X]’s reluctance to spend time with him, rather than blaming the Mother.  Dr B says:

   The only way he will achieve success in getting [X] to modify his views will be by consistently demonstrating himself to be a positive role model for [X] and for creating circumstances that make [X] want to spend time with him. 

3. I give significant weight to my findings under this factor.

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

1. [X] has an [omitted] heritage on the Mother’s side and a [omitted] heritage on the Father’s side. I am satisfied that whatever orders the Court makes, [X] will have the opportunity to enjoy the benefits of his heritage.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. As already noted, I am satisfied that the Mother has demonstrated a responsible attitude to her responsibilities as a parent.  In particular, in addition to meeting [X]’s needs day to day, the Mother has worked full time and provided for [X] financially.  The Father has never supported [X] financially and pays child support of $19 a month. 

2. While, as noted, the Father complains that the Mother does not keep him informed about [X]’s health issues, the Father has had the opportunity to access information without any input from the Mother, but has not chosen to exercise that option.

3. I have nothing further to add under this factor.

Any family violence involving the child or a member of the child's family

1. I have already noted that according to the Mother, family violence was a feature of the parties' relationship before separation and for a period after the parties' separated.  As already noted, I am satisfied the parties have engaged in heated exchanges at changeovers, in front of [X], which is destructive to [X]’s sense of well-being. As already noted, the nature of the parties’ relationship is a factor to which I have regard in reaching my decision.

Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or, the making of the order was contested by a person

1. There is no current family violence order in force.

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

1. It is hoped that given the length of time the parties have been litigating over [X]’s time with the Father, and given [X]’s age, that neither party will initiate further proceedings. 

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 has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

1. I have nothing to add here. 

Parental Responsibility

1. Section 65DAC applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children.

2. Section 61DA requires the court to 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. 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:

   i)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

   ii)Family violence.

3. 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[31]. 

   [31] Section 61DA(4) Family Law Act 1975

4. In the present case, the parties have agreed, and the Court has already made an order, that the parties have equal shared parental responsibility, except in relation to decisions concerning [X]’s health.  The Mother has been [X]’s carer all his life and has been present for all his medical consultations, including when he has had brain surgery and spent time in hospital. The Mother has full knowledge of [X]’s medical history and will make all decisions relating to his health, unless an emergency arises when he is in the care of the Father.  To his credit, the Father consented to this arrangement.

5. When an order is made for equal shared parental responsibility, section 65DAA(1) requires the Court to consider whether making orders that the child should spend equal time, or if not equal time, substantial and significant time with each party would be in the best interests of the child and whether such an arrangement is reasonably practicable[32], having regard to the factors set out in section 65DAA(5). These factors include the distance between the parties’ homes, the parties’ capacity to implement such an arrangement, the parties’ capacity to communicate and resolve any differences between them, the impact such an arrangement would have on the child, and any other matter the Court considers relevant. The requirement of reasonable practicality “requires a practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible”.[33] 

   [32] Section 65DAA Family Law Act 1975. See also MRR v GR [2010] HCA 4

   [33] MRR v GR [2010] HCA 4

6. [X] is 12 years of age, but has not spent regular time with the Father over a period of years.  While he has spent time and enjoyed time with the Father, there have been repeated disruptions to the arrangements made and lengthy periods when [X] has spent no time at all, particularly when the Father was not controlling his alcohol intake.  [X] has been resistant to spending any time with the Father in recent months, and is unlikely to have contact on a regular basis unless the Father’s approach to him can change. 

7. The Father in this case, does not seek equal time or substantial and significant time.  He seeks alternate weekend time and holiday time. The Mother seeks alternate weekend time and some holiday time, though for more limited periods.  The Independent Children’s Lawyer and the expert, Dr B, both recommend the more limited regime supported by the Mother. 

8. I agree that a regime of equal time or substantial time in these circumstances is not supported by either the expert or the Independent Children’s Lawyer and in my view, would be contrary to [X]’s best interests. 

Discussion and Determination

1. The Independent Children’s Lawyer submitted that [X] might be more prepared to spend time with the Father if the orders provided for day time only, and suggested that over time, [X] might decide for himself he would like to stay with the Father overnight. However, counsel for the Independent Children’s Lawyer was not opposed to an order for up to one overnight period each fortnight. 

2. [X] has not spent overnight time with the Father during his childhood so spending overnight time has been a big change for [X] this year.  The arrangement broke down within a matter of weeks when [X] refused to go. I am satisfied that [X] will only stay overnight with the Father if the Father makes him feel important, and accepted as he is, and makes himself available for the whole of the period [X] is with him. I have ordered the Father to engage in a programme known as “Emotionally Attuned Parenting” run by the Department of Health, as soon as practicable, to help him understand these issues.   

3. I agree with Dr B that given [X]’s stage of development, the parties need to understand his changing needs, and adjust and be flexible in their expectations of him.  

4. I share Dr B’s view that [X] needs to spend time with the Father because the Father has much to offer him. However, I also share Dr B’s view that it is in [X]’s best interests for orders to be made for a minimum regime of regular time, including overnight time, but with flexibility to enable [X] to decide if he would like more time. I will therefore make orders for fortnightly time with one weekend in four to include an overnight. I have also adopted Dr B’s recommendation for a minimum of 2 consecutive nights at a time in school holiday periods. [X] will be free to spend longer periods should he wish to. [X] will spend time with the Father on Christmas Day. The parties agree that [X]’s time with the Father is conditional on the Father not consuming alcohol for 24 hours before spending time, and during [X]’s time with him, and is also conditional on the Father attending Dr C for relapse prevention counselling.  I have so ordered. 

5. [X]’s name was placed on the Airport Watchlist in December 2009. Neither party nor the Independent Children’s Lawyer made submissions as to whether this order should be discharged. Given the high level of distrust between the parties, and their overseas origins, I have decided [X]’s name will remain on the Airport Watch list until he attains the age of 18 years or until further order of the Court.   

6. I find it imperative that the parties’ address some of the issues in their relationship to give [X] relief from exposure to the tension between them.  Sadly, the Mother resisted my request for the Father to have her residential details, because of apprehension about the Father’s possible behaviour.  I have already made an order for the parties to engage in the Keeping Contact programme at Unifam to address these issues.  The Mother also agrees to facilitate [X] consulting a counsellor at Unifam, which I find a positive step forward.  However, it is difficult for the Court to be confident that either party understands the importance of improving their communication for [X]’s sake.

7. I find it noteworthy that despite the input of Dr B over the past 3 years, the input of the Independent Children’s Lawyer and the input of the Court, nothing has changed substantially for [X] over a very long time. I agree with the Independent Children’s Lawyer that the parties need to act on the advice they have been given.  In addition, the Mother needs to avoid contact with [X] during his time with the Father, because [X] needs respite from the tension between his parents, and the chance to relax into his time with his Father.  While I understand the Mother’s anxiety about [X] when in his Father’s care, I find that she needs to let go to maximise the chance of [X] enjoying his time with the Father, so critical to [X]’s future emotional welfare. 

8. Dr B identifies [X]’s current tendency to engage in “anxious coping” and has made recommendations to the parties as to how to address this, in his two most recent reports, that  (a) the parents provide him with warmth, predictability and a clear sense of structure; (b) when [X] has reason to expect something, it should happen or it should be explained clearly to him why it cannot happen; (c) the parents should engage in conversation with [X] about issues which make him insecure, in an appropriate manner.  I urge the parties to follow Dr B’s advice. 

9. Dr B emphasises the importance of physical activity for [X], and suggests that the Father in particular support this, given his interest and expertise in the area. He also highlights his need to group activities with similar aged peers to give him more social stimulation and expand his social network.  Again, I urge the parties to follow this advice. 

10. As already noted, [X]’s health condition is regularly monitored. Dr B has concerns about the potential impact of Moyamoya disease on [X]’s cerebrovascular system and again recommends in his latest report (as he did in an earlier report) that [X] undergo a full psychometric and educational review through the Clinical Psychology/Neuropsychology department of the hospital in which he is being treated.  Dr B says the results should be communicated to the school and to both parties so they can be involved in any remediation programme.[34] Given [X]’s increasing independence, Dr B also strongly recommends a ‘medical alert’ bracelet for [X] to ensure he carries current accurate medical information about his condition and treatment at all times.[35]  I encourage the Mother to follow these recommendations and to inform the Father of the arrangements made.

    [34] At page 16 of Dr B’ report dated 5 August 2013

    [35] At page 18 of Dr B’ report dated 5 August 2013

11. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied that the orders set out at the beginning of these Reasons are in the best interests of [X].  

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Associate: 

Date:  15 January 2014