Nepean and Treloar

FAMILY COURT OF AUSTRALIA

NEPEAN & TRELOAR

[2011] FamCA 45

FAMILY LAW – CHILDREN – Best interests – With whom the child lives – With whom the child spends time – Where the parties never formed an enduring relationship with one another – Where the child has lived with the mother since birth and spent some time with the father – Where the child is primarily attached to the mother – Where the father seeks greater involvement in the child’s life – Where the single expert observed a hostile attitude in the mother towards the father

Family Law Act 1975 (Cth)

APPLICANT:

Mr Nepean

RESPONDENT:

Ms Treloar

FILE NUMBER:

SYC

7700

2009

DATE DELIVERED:

9 February 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

13-16 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC with Ms Christie

Orders

All prior parenting orders in relation to the child, X (“the child”) born … June 2003 be discharged.
The parents shall have equal shared parental responsibility for the child subject to Order 3 hereof.
Except in the case of emergency, the parents shall contact and discuss with each other any major decision regarding the child’s health and education. The proposing parent is to submit to the other parent his or her proposition and the other parent is to advise the proposing parent in a timely manner whether he or she agrees with the proposition. If the other parent disagrees with the proposition, he or she is to advise the proposing parent of the points of and reasons for such disagreement and discuss with the proposing parent those points and reasons. If the parents cannot then agree as to the decision to be made, they are to submit their dispute to mediation, with such mediator as agreed between them or, in the absence of agreement, as chosen by the other parent from three names selected by the proposing parent. The costs of such mediation are to be borne by the parents equally. If the parents cannot agree as to the decision to be made subsequent to such mediation, the mother is to have the ability to make the major decision regarding the child’s health and education in the exercise of sole parental responsibility.
The child is to live with the mother.
The child is to spend time with the father, during school terms, as follows:
(a)over a period of five months from the date of the making of these Orders, the child is to spend time with the father each alternate weekend from 10.00 am to 5.00 pm on Saturday and from 10.00 am to 5.00 pm on Sunday
(b)at the expiration of the period referred to in Order 5(a) hereof, over a period of six months, the child is to spend time with the father each alternate weekend from 10.00 am on Saturday to 5.00 pm on Sunday
(c)at the expiration of the period referred to in Order 5(b) hereof, over a period of six months, the child is to spend time with the father each alternate weekend from after school on Friday to 5.00 pm on Sunday
(d)at the expiration of the period referred to in Order 5(c) hereof, the child is to spend time with the father each alternate weekend from after school on Friday to before school on Monday or, if the weekend is a long weekend, to before school on Tuesday.
The child is to spend time with the father, during school holiday periods, as follows:
(a)over a period of six months from the date hereof, the child is to spend time with the father on three consecutive days and two consecutive nights
(b)at the expiration of the period referred to in Order 6(a) hereof, the child is to spend time with the father for a continuous period of two weeks during the 2011 / 2012 Christmas school holiday period
(c)at the expiration of the period referred to in Order 6(b) hereof, the child is to spend time with the father for the first half of each school holiday period in even numbered years and the second half of each school holiday period in odd numbered years.
The parents may vary the terms of the child’s time with the father by agreement between them as evidenced in writing.
Notwithstanding Orders 5 and 6 hereof:
(a)The child is to spend time with the mother on Mothers Day from 9.00 am to 5.00 pm if she is not otherwise living with the mother on that day
(b)The child is to spend time with the father on Fathers Day from 9.00 am to 5.00 pm if she is not otherwise spending time with the father on that day
(c)The child is to spend time with the mother on the mother’s birthday from 9.00 am to 5.00 pm. If the mother’s birthday falls on a school day, the child is to spend time with the mother on that day from after school to 8.00 pm
(d)The child is to spend time with the father on the father’s birthday from 9.00 am to 5.00 pm. If the father’s birthday falls on a school day, the child is to spend time with the father on that day from after school to 8.00 pm
(e)on the child’s birthday, the child is to spend time with the parent with whom she is not living or spending time on that day, for two hours as agreed or, in the absence of agreement, from 6.00 pm to 8.00 pm
(f)The child is to spend time with the father from 3.00 pm on Christmas Eve to 3.00 pm on Christmas Day in even numbered years and from 3.00 pm on Christmas Day to 5.00 pm on Boxing Day in odd numbered years.
Except when the child is to be collected from school, the mother is to deliver the child to the father at the commencement of the period during which the child is to spend time with the father. On the occasions when the child is to be collected from school, the father is to be responsible for collecting the child.
The father is to return the child to the mother’s residence at the conclusion of the period during which the child is to spend time with the father.
The parents are to both attend on a Family Relationship Centre to participate in post separation mediation and view the film “Kids in Focus”. A child consultant from such centre is to assess the child with a view to allowing such mediation to be informed by that assessment. The parents are to follow whatever recommendations come from the mediation.
The mother is to attend on a psychiatrist for psychotherapy. The treating psychiatrist is to be one trained to assess the mother’s need for anti-depressant medication and provide her with trauma counselling and ongoing supportive therapy. The mother is to provide the treating psychiatrist with a copy of the report of Dr W dated 4 December 2010 and prepared in the course of these proceedings. The psychotherapy is to be provided on a weekly basis unless the treating psychiatrist advises otherwise, in which case the mother is to notify the father of that advice.
The father is to attend on Relationships Australia to participate in a parenting course.
Each parent is to inform the other parent of any birthday parties to which the child is invited in a timely manner if such a birthday party would fall on a day on which the child is to spend time with the other parent.
In the event that one of the parents wishes to take the child on holiday interstate within the Commonwealth of Australia, then, no less than 7 days prior to the departure date of such proposed trip, the proposing parent is to notify the other parent and provide to the other parent particulars of the proposed trip, in particular the proposed itinerary and period of such trip.
In the event that one of the parents wishes to take the child on holiday outside of the Commonwealth of Australia, then, no less than 28 days prior to the departure date of such proposed trip, the proposing parent is to notify the other parent and provide to the other parent particulars of the proposed trip, including the proposed itinerary and period of such trip. At least 10 days before the departure date of the trip, the proposing parent is also to provide to the other parent:
(a)a final itinerary, including contact telephone numbers and full street addresses of those places where the child will be staying during the trip and
(b) copies of return airline tickets providing details of the flights booked.
In the event that the father wishes to take the child overseas, at least 21 days prior to the departure date of such overseas trip, the mother is to provide the father with the child’s passport. Within 14 days of the return date of such overseas trip, the father is to return to the mother the child’s passport. The mother is to keep the child’s passport current.
No overseas trip with the child is to be taken during the time that the child would spend with the non-travelling parent without the consent of that non-travelling parent.
Neither parent is permitted to travel with the child outside of the Commonwealth of Australia to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction without the consent of the other parent.
Each parent is entitled to receive information from the child’s school and sporting clubs or other associations with which the child may become involved from time to time, including particulars regarding her welfare, progress and forthcoming activities and functions. Each parent is also entitled to attend any event concerning the child, including but not limited to sporting days, parent teacher interviews and open days. Each parent is to do all such acts and things necessary to secure the implementation of this order.
Each parent is to notify the other parent as soon as possible or within 24 hours, whichever is the earlier, of any serious injury or illness suffered by the child while in the care of that parent or otherwise.
Each parent is to at all times keep the other parent informed of his or her residential address and a landline telephone number of those premises.
Each parent is to notify the other parent of the name, address and telephone number of the child’s treating doctors and therapists, and authorise those doctors and therapists to provide to the other parent information regarding the child’s health and any treatment for any condition she might have.
By way of permanent injunction it is ordered that:
(a)the father is restrained from doing anything, or permitting any other person to do anything, to reveal, whether by publishing on the internet or through any other form of communication, any information pertaining to any proceedings and information that identifies or may identify the mother and/or the child, whether by use of their names or pseudonyms, except to immediate family or his partner
(b)the father is restrained from obtaining or disseminating, or counselling, aiding, abetting or facilitating any other person to obtain or disseminate, any information pertaining to the mother’s employment at B Company, without the express written authority of the mother
(c)the father is to cause to be removed any existing blog postings and/or emails that are currently on the internet, and notify any prospective or existing publisher of the restraint preventing the publishing of any material referred to in Orders 24(a) and (b) hereof
(d)without limiting the generality of Orders 24(a), (b) and (c) hereof, the father is not to publish the manuscript as defined in Order 25 hereof or disseminate any material concerning the mother or the child that would contravene the provisions of s 121 of the Family Law Act 1975 (Cth)
(e)the father is to use his best endeavours to procure the return to his possession of any copies of the manuscript as defined in Order 25 hereof which have been disseminated by him, and destroy those copies
(f)the copies of the manuscript as defined in Order 25 hereof, which are held in the Court as exhibits, are to be filed in a sealed envelope and not opened without the consent of the parents or further order of the Court
(g)the parents and their legal representatives are to cause such copies of the manuscript as defined in Order 25 hereof as are in their possession to be destroyed forthwith upon the appeal period in relation to this decision expiring.
The manuscript to which these Orders refer is defined as including any publication or part publication or version thereof authored by the father or on his behalf that refers to or identifies or may identify the mother and/or the child, whether by use of the names or pseudonym.
The mother is restrained from referring to, or permitting any other person to refer to, the father by any other name than “Dad” or “Daddy” when speaking with the child.
The application of the father for orders relating to the change of the name by which the child is called is dismissed.
Each party is to attend upon a child-focussed mediation as recommended by

Dr W in his report in these proceedings as is nominated by the Director of Child Dispute Services at Relationships Australia or such other body as the Director may think fit.
Pursuant to s65L of the Family Law Act 1975 (Cth) a Family Consultant as nominated by the Manager, Child Dispute Services of the Sydney Registry of this Court, give to any party to these Orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these Orders for a period of 12 months from the date of these Orders.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed from the list of Active Pending Cases.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7700 of 2009

MR NEPEAN

Applicant

And

MS TRELOAR

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are parenting proceedings with respect to the parties’ only child, X (“the child”), born in June 2003 and currently aged 7 years 7 months.
The parties did not marry, nor did they form an enduring relationship with one another. The child has resided with the mother since birth and she has spent some time with the father. However, both of the parties have resided overseas for significant periods of time which has resulted in the child’s time with the father being limited.
Both of the parties now reside in Sydney. They are in dispute as to how the father should be involved in the child’s life.
The father seeks that the child’s time with him be extended in an increasing manner to each alternate weekend from after school on Friday to before school on Monday, with provision for additional time between them during school holidays and on special days. Other orders are sought by him, some of which are agreed to by the mother. Orders are sought by him in relation to the mother attending on a psychiatrist for therapy; himself attending and participating in a parenting course with Relationships Australia; and, the parties undertaking to continue mediation.
The mother now seeks orders that she have sole parental responsibility for the child and that the child live with her. She seeks orders that the child spend time with the father, during school terms, on an increasing basis, over a period of

18 months from the date of the making of the Orders, each alternate weekend during the day only for the first six months; each alternate weekend including one night overnight for the following six months; and, each alternate weekend from after school on Friday to before school on Monday for the last six months. She also seeks that the child spend time with the father, during school holidays, on an increasing basis, whereby the child will spend time with him for two periods of seven consecutive days during long school holiday periods by 2013.
Orders are also sought by the mother in relation to mediation; changeovers; special days; telephone contact; communication of information regarding the child’s health; and notification as to changes in the contact details of either party.
The mother further seeks a number of injunctions. She seeks an injunction restraining the father from doing anything to, or permitting any other person to do anything to, publish any material which might identify herself or the child, or any material in relation to certain other information. She also seeks a permanent injunction requiring the father to cause to be removed any existing blog postings and/or emails that are currently posted on the internet or other file-sharing sites; and to notify any prospective or existing publisher of the restraint against the publishing of any material falling in the description aforesaid.
In particular, the mother seeks an injunction specifically restraining the father from publishing the manuscript referred to by her in these proceedings as “the book” (“the manuscript”) or any material the publication of which would offend the provisions of s 121 of the Family Law Act1975 (Cth) (“the Act”).
The manuscript consists of a number of draft works produced by the father which were said by him to be works of both fact (drawing as to fact from his own experiences in life and, particularly, in relation to his daughter) and fiction; variously described but concerning a man’s pursuit of a relationship with his daughter in circumstances where there is no relationship between that man and the mother of his daughter. In the manuscript, the mother of the man’s daughter is portrayed in an unflattering light, to say the least.
The mother also seeks orders in relation to the provision of information to her as to the dissemination of the manuscript, with a requirement that the father cause it to be retrieved and destroyed.
In her original Response to an Application for Final Orders, the mother sought, inter alia, that she have sole parental responsibility, but she did not seek any order that the child spend time with the father. However, during the course of the proceedings, a report was prepared by the appointed single expert,

Dr W, following observations of the mother, the father and the child (“the report”). At the hearing, the mother said that she was prepared to reluctantly but substantially agree to its recommendations.
One of the recommendations of the report is that the mother undertake psychotherapy to assist her in not only accepting its recommendations, but also in allowing the father to become an important and continuing part of the child’s life.
Dr W suggests that the mother suffers from a form of adjustment disorder. He says that it is necessary to address therapeutically the stressors in her life. He identifies the present conflict and trauma associated with a sexual assault upon her by a third party as being stressors. He says that a failure to deal with these matters could in effect lead to a situation where the child is imprinted with the mother’s perception of the father as “bad” to the child’s detriment. He observed that the mother has difficulty accepting anything being said about the father’s good qualities as a father despite his observations to the contrary. He reports:
[the child] was at ease in her father’s company and clearly enjoyed his capacity for fun and this (sic) ability to enter into phantasy play. She was entirely unselfconscious with him. She clearly would have been happy to have her time extended with him on the occasion I observed them together - despite what her mother reported to the contrary.
Dr W observed a handover of the child from the father’s care to the mother’s care where he saw evidence of a hostile reaction in the mother to the father. In his report, he says of that occasion:
[The mother] was clearly caught off-guard on the occasion when I observed hand-over from [the father] to her and her brother. The extreme hostility from these two was palpable. [The mother’s] subsequent email to [the father] about [the child] having been subject to ‘interrogation’ by me in no way matched my interactions with [the child]. It is hard to believe that when she got home, [the child] was ‘in tears’, primarily as a reaction to having been assessed. It seems to me far more likely that she finds the tension between her mother, and her uncle on the one hand, and her father on the other, impossible to contain. I also found it difficult to believe that [the mother] has done everything in her power to encourage [the child] to have an enjoyable time with [the father] when she has a face like thunder for [the child] to read, at change-over. When I challenged [the mother] about this, she put forward the somewhat intellectualized response that her behaviour must be driven by unconscious forces - implying that she was totally unaware of registering in a conscious way her hostility to [the father].
These arguments lend some weight to [the father’s] thesis that [the mother] is doing everything in her power to prevent [the father] having a chance to form a relationship with [the child] and that she has a rigidly-adhered-to view that [the child] will not have her needs met by [the father] and is distressed by aspects of the contact.
Again, when [the mother] was given direct and very detailed information about my observation of [the father] with [the child] to the contrary, she chose to return to her entrenched belief that [the father] is self-focused and is not capable of forming a healthy relationship with [the child].

In these difficult circumstances and in the absence of agreement between the parties, the Court is asked to determine the allocation of parental responsibility and the way in which the child will spend time with each of her parents, on terms which will hopefully lead to a future where each of her parents is able to make a significant contribution to the child developing her maximum potential.

Background Facts

Where in these reasons I make statements of fact, they are, unless otherwise specified, my findings of fact.
In 1971, the mother was born. She is currently 39 years of age.
In 1972, the father was born. He is currently 38 years of age.
In 2002, the parties met and the mother subsequently became pregnant. The mother declined the father’s request to have in utero DNA testing, asserting that it would present a danger to the unborn child.
In June 2003, the child, X, was born. The mother was visited by the father in hospital and later in August 2003.
In September 2003, the father received a telephone call from the mother confirming that he is the biological father of the child.
In December 2003, the child spent two weeks with the father in the lead up to Christmas. The father stayed in a spare room at the mother’s residence and cared for the child while she worked. The mother alleges otherwise.
On 20 December 2003, the mother, the father and the child travelled together to Melbourne to meet the paternal family.
In September 2004, the father returned from overseas in order for the child to spend time with him. He again stayed in a spare room at the mother’s residence and cared for the child while she worked from 8.30 am to 7.30 pm. The mother says that, during the father’s four day visit, the child spent short periods of time with him in her presence. I accept the father’s evidence.
In October 2004, in a telephone conversation, the mother screamed at the father: “you will never see [the child] again”. She then terminated the telephone call. The father asserts that he thought that she was under the influence of alcohol.
In February 2005, the father wrote to the mother proposing counselling. The mother’s lawyers responded suggesting mediation.
In March 2005, the father returned to Sydney from London in order for the child to spend time with him. Initially, the child spent time with him each weeknight between 7.30 pm and 9.30 pm under the supervision of the mother. The father asserts that the child spent time with him over a five week period in the presence of either the mother or a family member; whereas, the mother asserts that he visited the child two or three times each week, interspersed with travel, and that the child spent time with him in the presence of the mother or a nanny. The parties also attended mediation together.
In April 2005, the father commenced paying child support in the sum of $500 per month. In addition, the father set up a trust fund for the child and deposited $500 per month into that fund.
In October 2005, the father returned to Sydney from London. The mother allowed the child to spend time with the father between 10.00 am and

12.00 pm, and 3.00 pm and 6.00 pm. The child’s time with the father was supervised by the maternal grandmother. The mother asserts that the child spent time with the father, in the presence of either the mother or a nanny, over approximately a 10 day period in Sydney and Melbourne, and for 2½ days over a weekend. I accept the evidence of the father.
In October 2005, the father arranged for the child to travel with the mother to Melbourne to see the paternal family.
In February 2006, the father travelled to Sydney in order for the child to spend time with him. The mother dictated that the child’s time with the father was to be the same as that set out above in paragraph 29. Again, the child’s time with the father was supervised by the maternal grandmother.
In 2006, the father commenced living with Ms T.
In February 2006, the maternal grandmother asked the father to sign a passport application for the child. The maternal grandmother did not inform him that it was the mother’s intention to relocate with the child to the United States of America.
In March 2006, the mother informed the father that she intended to relocate with the child to the United States of America.
On 22 March 2006, the mother commenced proceedings in the Federal Magistrates Court in relation to her proposed relocation with the child to

the United States of America.
In July 2006, the abovementioned proceedings were settled by consent, with the child to live with the mother and spend time with the father as specified in the Orders.
In September 2006, the mother relocated with the child to the United States of America. In that month, the child spent time with the father in the United States of America. The child spent seven nights with him, including one night overnight. The child’s time with him for the first three days was supervised. The mother says that the relocation was temporary.
In December 2006, the father returned from overseas to live in Melbourne. In that month, the child spent seven days with him, the first three of which were supervised. The child did not spend the evening with him as it appears that she expressed the view that she wished to spend that time with her mother.
In March 2007, the child spent time with the father in Melbourne in accordance with the Orders, that being for a period of seven days, the first two of which were supervised. The child spent two nights overnight with the father, although it is his contention that the mother discouraged the child from spending overnight time with him, giving to the child the option of returning with her to her hotel.
In June 2007, the father travelled to the United States of America and the child spent time with him there. The father says that the child spent seven days with him, the first two of which were supervised by the maternal grandmother. However, the mother says that the child spent four days with the father, the first three of which were supervised by the maternal grandmother. No overnight contact occurred between the father and the child. The father alleges that this was because he did not have suitable accommodation.
In August 2007, the mother asserts that the child spent time with the father in Melbourne and that he returned the child to her on the first two nights.
In November 2007, the child spent four days with the father in the United States of America.
In December 2007, the child spent seven days and five nights with the father in Melbourne. The father asserts that the mother told him that the child did not want to spend overnight time with him. The mother says that the child did not spend the first night with the father.
In March 2008, the child spent seven days and five nights with the father in Melbourne.
In mid 2008, a media organisation published an excerpt from the father’s manuscript.
In June 2008, the child spent seven days and four nights with the father in

the United States of America. Prior to this occasion, the father received an email from the mother saying that the child did not wish to go to the beach with him.
In August 2008, the mother says that the child spent six nights with the father in Melbourne.
In October 2008, the child spent seven days with the father in the United States of America. The child did not spend overnight time with him because he did not have suitable accommodation. In that month, the mother ceased employment at B Company and commenced undertaking some private investment work during school hours.
In November 2008, the father filed an Amended Initiating Application seeking that the child spend time with him on a “week about” basis.
In December 2008, the mother returned with the child to Australia to live here permanently. In that month, the mother sought undertakings that the manuscript, and certain information regarding herself, the child and the proceedings, not be published or otherwise disseminated.
In December 2008, the child spent seven days and six nights with the father in Melbourne. In that month, the father said to the mother that he was prepared to provide her with a copy of the manuscript when it was near completion.
On 28 January 2009, the child commenced kindergarten.
On 7 and 8 February 2009, the child spent time with the father from 10.00 am to 5.00 pm.
On 26 February 2009, the parties attended counselling with Ms B and a Section 60l Certificate was issued.
On 27 February 2009, the father commenced proceedings in the Federal Magistrates Court.
On 28 February 2009, the child spent the day with the father.
On 15 and 16 March 2009, the child spent time with the father from 10.00 am to 5.00 pm. The mother asserts that the child spent overnight time with the father in Sydney on 14 March and 15 March 2009 and that the child reported to her that she wanted to come home.
On 7 March 2009, the father requested that the child spend time with him from 9 April to 15 April. The mother agreed subject to the time taking place in Sydney.
In March 2009, the father posted on his Facebook page that he was considering three titles for the manuscript, and that he had received offers from a literary agent to assist with its publication.
On 6 April 2009, the first court event took place.
On 7 April 2009, the mother resiled from her prior agreement that the child spend time with the father from 9 April to 15 April 2009 and proposed that the child spend alternate nights with the father. Accordingly, the child spent four nights with the father over a seven day period in Sydney.
On 8 April 2009, the father signed a contract with a literary agent concerning his manuscript.
On 27 April 2009, the matter was listed before Federal Magistrate Altobelli at which time Associate Professor Q was appointed as the single expert in these proceedings.
Between 13 and 14 June 2009, the child spent two days and one night with the father in Sydney.
On 23 June 2009, the parties met with Associate Professor Q and incorrect information was given to her by the mother.
On 6 July 2009, the mother amended her Application to seek orders that the child spend no time with the father.
On 13 July 2009, the matter was listed for hearing on an interim basis before Federal Magistrate Altobelli.
On 14 July 2009, Federal Magistrate Altobelli made orders providing for the child to spend time with the father from after school on Friday to before school on Monday.
Between July 2009 and May 2010, the mother reported that the child had made a number of telephone calls to her in which the child was crying and told her that she wanted to come home. In addition, the child allegedly told the mother that she had cried at her father’s home and in anticipation of going with him. The father says that any distress to the child was generally of limited duration and that it appeared to disappear when the child was solely in his care and the mother out of sight. A digital video disk was procured by the mother of an occasion when the child was being picked up by the father and in distress. In relation to that occasion, the Court accepts that the mother did little to alleviate the distress of the child. The mother also reported that the child expressed distress as a result of bad dreams and that the child said on a number of occasions: “I don’t want to see [the father] this weekend”.
Between 16 and 19 July 2009, the child spent three nights and four days with the father in Sydney.
On 16 July 2009, the mother filed a Notice of Appeal in relation to the decision made by Federal Magistrate Altobelli on 14 July 2009. She also filed an Application for a Stay of his Honour’s orders of same date. On 27 July 2009, a conditional stay was granted on the condition that the child spend time with the father for three alternate weekends from 10.00 am on Saturday to 5.00 pm on Sunday; for the following three alternate weekends from after school on Friday to 5.00 pm on Sunday; and, thereafter, from after school on Friday to before school on Monday. The mother appealed those orders and sought that the matter be expedited.
On each of the weekends commencing 1 August, 15 August and 29 August 2009, the child spent one night and two days with the father.
On 20 August 2009, the mother’s Expedition Application was listed for hearing.
On 6 September 2009, the father asked the mother whether the child could spend time with him as it was Father’s Day. The mother refused that request.
On 11 September 2009, the child spent time with the father from after school on Friday to 5.00 pm on Sunday.
On 25 September 2009, the child spent time with the father from after school on Friday to 5.00 pm on Sunday.
On 9 October 2009, the mother unilaterally changed the arrangements for the child to spend time with the father in Melbourne. She required an undertaking that he would not travel with the child to Melbourne, but permitted the child to spend time with him the following day in Sydney.
On 10 October 2009, the child spent time with the father from 10.00 am on Saturday to 9.00 am on Monday.
On 23 October 2009, the child spent time with the father from after school on Friday to 5.00 pm on Sunday.
On 2 November 2009, the appeal was listed for hearing.
On 20 November 2009, the orders of the Federal Magistrate were set aside and the matter was remitted for rehearing. Thereafter, the father did not see the child for a month.
On 24 November 2009, the father filed an Amended Initiating Application in which he sought an order that, at the conclusion of the proceedings, the manuscript be destroyed and disposed of; and, an order that he would not publish the manuscript. The mother did not immediately respond to that proposal.
On 12 and 13 December 2009, the child spent time with the father from

10.00 am on Saturday to 5.00 pm on Sunday.
On 14 December 2009, the proceedings were transferred from the Federal Magistrates Court to the Family Court of Australia.
In January 2010 and again in February 2010, the child spent one night and two days with the father. No contact between them took place in March. The father filed an Application for Contravention which was resolved by consent on

31 March 2010 when it was agreed that the child would spend time with the father for two consecutive weekends.
In April 2010, the child spent one night and two days with the father. However, contrary to orders of the Court, the mother did not permit the child to spend time with the father on a Sunday of the following week from 10.00 am to

6.00 pm. Yet, it seems that, in May 2010, the child spent some time with the father, although such time was not in accordance with the orders of the Court as the mother requested that the father return the child to her at the completion of each day and thus no overnight contact between them took place.
In June 2010, the child spent one night and two days with the father and, on

10 and 11 July 2010, she spent time with him from 10.00 am to 5.00 pm.
In August, September, October and November 2010, the child spent time with the father as set out above in paragraph 87.

The Issues

In this case, it is to be determined what orders will serve the best interests of the child; and, in particular:
a)whether the parties should have equal shared parental responsibility for the child or whether the mother should have sole parental responsibility
b)what time should the child spend with the father
c)over what period of time and how should the child’s time with the father increase, given that the parties both agree on a staged increase in that time
d)what specific orders, if any, should be made as to the child’s time with the father
e)whether there should be a change in the child’s surname and what benefit, if any, would such change have for the child
f)what orders will aid the parties to reduce conflict and improve communication between them and perhaps reduce anger, anxiety and tension and thereby promote the best interests of the child
g)what orders should be made to prevent the dissemination of the material contained in the manuscript; and, whether orders should be made for the destruction of the manuscript and, if so, what those orders should be and
h)what orders should be made in relation to the sharing of information between the parties in relation to the child.
The Court notes that some of the issues to be determined were reduced by the parties’ agreement to the making of orders in the following terms:
a)the child live with the mother
b)the child spend time with the father from 10.00 am to 5.00 pm on Boxing Day in 2010
c)the child spend time with the father from 10.00 am to 5.00 pm on Christmas Day in 2011
d)the child spend time with the father from 5.00 pm on Christmas Day to 5.00 pm on Boxing Day in 2012
e)the child spend time with the father from 10.00 am on Christmas Day to 5.00 pm on Boxing Day in 2013 and each alternate year thereafter
f)the child spend time with the father from 10.00 am on Boxing Day to 5.00 pm on 27 September in 2014 and each alternate year thereafter
g)in the event that either party wishes to take the child on holiday interstate within the Commonwealth of Australia, then, no less than seven days prior to the departure date of such proposed trip, the proposing party notify the other party and provide to the other party certain particulars, including the proposed itinerary and period of such trip
h)in the event that either party wishes to take the child on holiday outside of the Commonwealth of Australia, then, no less than 28 days prior to the departure date of such proposed trip, the proposing party notify the other party and provide to the other party certain particulars, including the proposed itinerary and period of such trip, copies of return airline tickets, flight details, contact telephone numbers and addresses.

Relevant Law

The legal principles governing this case are set out in the Family Law Act1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration

(see s 60CA). In determining what is in the best interests of the child, I must consider certain matters under s 60CC. Those matters are the “primary considerations” and the “additional considerations” (see s 60CC(2) and (3) respectively).
I am required to ensure that any order I make is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the best interests of the child being treated as paramount (see s 60CG).
I will also be guided by s 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider the matters under s 60CC(4) and (4A). Without specifically setting out those matters, I will in these reasons deal with them.
Section 61DA(1) requires that:
… 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.
Subsection (4) provides as follows:
… 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.
Where I propose to make an order that the child’s parents are to have equal shared parental responsibility for the child, s 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent.

Section 60CC Considerations

Primary Considerations

(a) The benefit to the child of having a meaningful relationship with both of the child’s parents

It is beyond doubt that this child would benefit from having a meaningful relationship with each of her parents. Indeed, both of her parents agree that this is so. The question before the Court is how the development of that meaningful relationship can be assisted by orders of the Court.

There is also no doubt that, presently, the child is primarily attached to the mother and that she has a different relationship with the father. Further, it seems that, presently, the child does not see her father as part of her family, although she does not regard him as a stranger. In this circumstance, change has to occur in order for the child to have and benefit from a meaningful relationship with her father. The consequential question is what change has to occur.
In this case, the Court considers that an improvement in the capacity of the parties to communicate with each other in relation to the child, openly and without rancour or pursuit of power, is an important starting point. It is interesting to note that the mother has said that she could speak with the father about matters concerning the child. However, it appears that, in the past, communications between the parties have been inhibited by distrust, anxiety and discord.
Dr W says that the mother has a very limited view of the father and that she is unable to find good in him in his role as a father. It is clear that, if that attitude of the mother towards the father persists, given that Dr W does find such good in him, then the child will be put in a situation where her experience does not equate to her mother’s perception. Although the mother said in her evidence that she did not think that she says anything to the father’s detriment in the child’s presence, her non-verbal signals and her dispute with the father in the child’s presence would be, as Dr W agreed, “soaked up” by this little girl as a sponge soaks up water. Therefore, the mother’s attitude needs to change. However, the father also needs some lessons in appropriate conduct.
For the father’s part, the manuscript which he produced displays a critical attitude to the mother, to say the least; and, to suggest that she would be unaffected by it would be the view of one who has difficulty in measuring others’ responses. He appears to have come to recognise this.
It is not, however, the Court’s view that the facts support the position argued for by senior counsel for the mother. The fact that the father had a meeting with his literary agent following the making of orders in this matter does not amount to either a disobedience of them or even a contemplated disobedience of them.
Further, the mother has been traumatised by events in her past unrelated to the father. His production of the manuscript and her knowledge of it have not improved her condition.
Dr W’s evidence is that the building of a less one-sighted, angry, anxious and nervous mother, with a capacity to be more objective in her assessments of others, will involve a process of psychotherapy. The Court proposes to so order. Hopefully, the combination of psychotherapy, a more insightful father and the absence of litigation will create a climate in which the relationship between the child and her father will not only develop and grow, but one in which the mother will be able to communicate with the father on a

business-like and polite basis, recognising at least those things which he does in contributing to their daughter’s welfare and development.

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

In the view of Dr W, the greatest potential danger for this child to be exposed to psychological harm is to be found in her mother’s hostile attitude towards her father, coupled with her mother’s fixed idea of him as a “bad man” with no redeeming features. It is, as Dr W suggests, this negative attitude towards and fixed idea of the father which drives the father’s anger.
Dr W takes the view that the mother is in need of psychotherapy. The Court proposes to so order as Dr W considers that such process is one by which the mother could be given an opportunity to separate out the effects of the trauma that she experienced from the anxieties that she feels around the child in the hands of the father.
There is little doubt that the anxiety felt and expressed by the mother, even non-verbally, will have had an effect on this child. It could not do otherwise. The child would want to please her mother and it is probable that the child picks up that her mother is anxious about her spending time with and being happy with her father.
The mother’s anxiety in this regard is completely baseless if one has regard to the observations of Dr W. However, if the mother persists in her present attitude, there are likely to be repercussions for the child which will be to the child’s detriment and, in the long term, to the mother’s detriment also.
Dr W’s evidence of the events which occurred when he was with the parties when they picked up the child together, in addition to the video tendered by the mother, supports the view that the mother is influencing the child with her actions and feelings and that a significant part of the mother’s anxiety is unjustified by the facts of the relationship between the child and the father.
The mother asserts that the publication of the father’s manuscript is likely to cause harm to the child if the child became aware of it. The father agrees that this would be so.
While much time, emotion and immoderate language was devoted to the issue of the manuscript, it was really used as a basis for the mother to attack the father and his personality, albeit with some success. The manuscript is not, however, in the Court’s view, anything more than a part of the picture of the conflict and the father’s character.
The father says that the creation of the manuscript was cathartic. The Court has no doubt that he felt that he might achieve some plaudit or vindication for its publication. However, the Court is of the view that the father, now having been involved in the examination of the evidence, which has been educative, as it can sometimes be, is genuine in his desire to assist in the procurement of an end to the injury caused by this sword of Damocles suspended above the mother and child.
It appeared during the course of the litigation that the father had gained some insight since he agreed to the orders for non-publication of the manuscript and he was prepared to agree to orders for its destruction.
The manuscript itself is, by agreement, not to be published and orders will be made requiring copies available to be destroyed, however the father’s publication did give some insight into his character which did him no good service and his insouciance or lack of insight into the inherent dangers of the creation and possible publication of the document for the child were worrying.
It will be subsequent deeds, not words which will show whether the father has had a true change of heart or whether he has merely seized a forensically more tenable position.
The Court is inclined to the view that the father now realises that the manuscript, which was conceived in sorrow, and carried out in anger and frustration, should be stillborn. One hopes that the mind behind the manuscript will find that the grief which motivated its creation will be eliminated by the pursuit of a continuing and responsible delight in a relationship with the child, and one in which her interests are primarily served.

Additional Considerations

(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

Dr W has made observations on the views expressed by the child to him. He says that the child did not acknowledge her father as part of her family. Those she described as part of her family were herself, her mother and her grandparents. This probably reflects the child’s experience in life to date since the father has been less available to her than those she described and with whom she has a continuing relationship. He also says that the child expressed to him that the time she currently spends with the father is enough.
The child is very young. The views expressed by her reflect her experience in life to date. They are noted, but they will be given little weight, having regard to her age and her limited experience with the father.

(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)

On the evidence, the child is clearly primarily attached to the mother with whom she has a close relationship. The child has a relationship with the father which is developing, but which appears relaxed and happy.
Dr W was unable to detect anything inappropriate in the interaction of the father with the child. To the contrary, he has found the father to be very

child-focused. He also says that he believes that the father has the capacity to be sensitive to the child and that the father would not do anything which would lessen her developing trust in him.
Dr W has spoken of the responsive reaction of the child to the mother. If the mother is anxious, then the child will be anxious. In an attempt to overcome the mother’s anxiety with its concomitant adverse effect on the child, his recommendation was for the intervention which the Court proposes to order.

(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

Dr W says that he did not feel in any way that the father had any motivation to undermine the child’s very secure relationship with the mother. It is reported by Dr W and supported otherwise by the evidence that the father takes the view that the mother has done a very good job with the child, save in one respect; namely, the child’s relationship with him.
The mother, for her part, finds it difficult, it seems, to see the father’s actions in the litigation as other than pursuing a desire to be hostile and aggressive towards her. Dr W says that the mother cannot believe that the father could be sensitive to the child’s needs, even when she was presented with very direct evidence in support of that. With such fixed views, Dr W says that it is hard to imagine how the mother could truly represent the father to the child in a positive light. The mother sees herself as “good” and a victim, and she sees the father as “bad” and as having no redeeming features.
On that basis, Dr W considered the prospects of the mother, for whatever reason, good or otherwise, facilitating a relationship between the child and the father to be gloomy. However, Dr W made that observation at a time when the mother had not read his report and agreed to follow its recommendations. Yet, there remains concern, as with the father’s newly acquired insight, as to whether the mother is on the road to Damascus or in the pursuit of forensic advantage.
Whatever the motivation, the mother, having had the benefit of the expert evidence, is to be commended for having been able to take a different path, albeit she says with difficulty. The Court has no doubt, with the views she strongly and recently expressed, that she would have reluctantly come to the decision to follow Dr W’s recommendations. She must understand, however, that good parenting requires that a good relationship be fostered between the child and the other parent, even if it requires an application of effort. That effort must be provided in sufficient abundance to discharge her obligations to the child to promote a positive relationship with the father.
The Court is concerned that the father has been referred to by his first name and not as “Daddy” in the mother’s home and in the presence of the child. This seems to demonstrate an unwillingness on the part of the mother to recognise the true relationship between the child and the father. It is my intention to make orders requiring of the mother that she, in future, refer to the father as “Dad” or “Daddy” when speaking with the child. There should be no doubt in the child’s mind that the mother acknowledges that relationship and, indeed, I propose to require of the mother that she ask other persons in her household to so refer to the father.
A combination of the passage of time and the meeting by the mother of her resolve and undertakings with deeds is going to be the only determinate of what truly motivated the change in her approach.

(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

This case is, at one level, about change; in particular, changes for the child in the present arrangements for her care which will allow the developing relationship between herself and the father to blossom.
As mentioned earlier in these reasons, the mother’s anxiety will be a significant matter in the success of such change. Dr W, however, remains of the view that such success will be subject to a process of continuing support in the form which he proposes and which the Court thinks is appropriate.
It is the joint view of Dr W and the mother that such change takes place more slowly than as proposed by the father. He may feel some impatience with Dr W’s recommendation since he has already been undertaking a slow process. However, in the life of this child, the period during which the contact between the child and the father will be limited is, on Dr W’s proposal, acceptable and probably desirable in the interests of providing no basis for anxiety for the child or the mother, which would clearly be transmitted to the child to her detriment.

(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

There is presently no such difficulty, but the transfer of the child from one parent to the other is an opportunity for hostility between the parents to be demonstrated. Occasions for such hostility should be limited by arranging changeovers so that the parents have as minimal involvement with each other as is possible. It would be good if they could agree otherwise. I am sure that, for this little girl, seeing her parents, each of whom she loves, behaving politely and being friendly with each other would bring her great joy and be a great example to her of good behaviour.

(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

Dr W was asked to make comments on the mother’s parenting capacity. He reports that the mother repeatedly emphasised how traumatised she has been by the various writings in the manuscript which relate to the parties’ situation. That, he says, is what the mother consciously understands. There is no question, he says, of that being the truth of her experience.
Dr W has discussed the serious traumatisation of the mother as a result of her being sexually assaulted by a third party. He poses the possibility that the reaction of the mother to the manuscript is represented by a reactivation of this earlier and largely unprocessed trauma. In his report, he says:
I did feel that [the mother] glossed over this area when I questioned her on it. She switched my questioning her about this into how affronted she felt that [the father’s] legal team would stoop so low as to find this relevant, and to bring it into open court.
Dr W observes that the mother’s self-image is that of a “good girl” and that the manuscript displays a different side of her, one that is not in accord with her self-image. The mother, he says, could not bear to be confronted with evidence which appears to conflict with her view of herself as the wronged person. In relation to the handover as earlier discussed, the mother moved into the realm of the unconscious and focused on the father as the one who presents himself in a false light.
Significantly, however, Dr W says that he did not find any evidence to support the notion that the mother’s capacity to parent the child in a general sense was being interfered with. In her own home, the mother is relaxed, spontaneous and able to give herself over to meeting the child’s needs. There is, he says, no sign in the child of anything which would indicate a significant disturbance caused by disruption to the mother and child bond. He says:
[the mother] is the only parent who has been in a consistent position of being able to responsibly parent [the child]. She has done an excellent job of mothering [the child], and this is reflected in [the child’s] outgoing, trusting and engaging personality.
The father, by reason of his limited contact with the child, has not been in a position to provide for the child’s emotional and intellectual needs to the same extent as the mother. However, Dr W reports:
… I observed nothing in his current personality functioning, nor arising out of the observation between him and [the child], which would lead me to think that he lacked any capacity as a parent to meet his child’s needs.
The Court has had the benefit of seeing some home pictures which show imaginative interaction between the father and the child, and an encouragement of the child to expression in dance and otherwise. The child appears delightful, happy and interested and, it seems, the father at the time was making a contribution to her developing her self-expression and happiness. In her evidence, the mother, having seen the video, conceded that the child appears to be having a good time. She could not do otherwise.
The Court also has seen a video of an occasion when the child was being picked up by the father, and when she was distressed and did not want to go. The Court agrees that the child was significantly distressed, but the Court is not impressed with what appears to be lukewarm efforts of the mother to alleviate that distress.
It is not known whether the mother did not make much of an attempt to alleviate the child’s distress on that occasion due to inability to do so or whether there was little attempt to do so for forensic purposes, given that the mother said that it was important to her to show how distressed the child was. The Court takes the view that it is more probable than not that the child was reflecting the mother’s anxiety about the child being with the father, rather than an anxiety borne of the child’s own experience of being with the father.

Dr W has said that he did not observe any experience of the child with the father which would give rise to such anxiety and tearfulness.
The Court has seen a video of another occasion when the child was being picked up from school by the father. It did not indicate anything other than that the child was entirely happy on that occasion in his presence, contrary to the mother’s account of other occasions.
The mother has submitted that the child should not spend overnight time with the father because the child will lose trust in her, having regard to the tearful outbursts of the child which the mother alleges to occur when the child is returned. The Court again is sceptical that such outbursts are a response of the child to the father. The Court considers that they are more likely to be a response of the child to the mother’s attitude and a desire of the child to do what she thinks the mother wants. Nevertheless, there clearly needs to be a period of time for the mother to obtain the help she needs to alleviate her anxiety so that this child will not have to further experience and even adopt it.

(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

There are no special cultures or traditions of this child which are relevant to the determination of this case.
During her life, the child has substantially been cared for, and cared for well, by her mother. That is a matter of common accord between the parties, save on the question of the mother facilitating time between the child and the father.
Each party is intelligent in the Court’s assessment of them. The mother has some problems as adumbrated by Dr W, but hopefully, with the application of the relevant therapy, they can be alleviated.

(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

This is not a relevant matter to be considered in this case.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The father has contributed to the support of the child and, indeed, he has contributed to a trust fund for the benefit of the child. However, there is no doubt that the mother has borne the significant cost of raising the child thus far.
Much was sought to be criticised about the nature and extent of the father’s contribution to the support of the child, but there appears to have been little asked for by the mother by way of additional support.
If it was felt that the father should have made proposals on his own initiative, rather than waiting for a request, it is noted that the trust fund he settled for the benefit of the child was a matter resolved on his own initiative.
The father has pursued, within the limits of his capacity and the relative geography of the parents and child, from time to time, the opportunity to make a contribution to the child’s development. It is true that such contribution has been but a small part of the child’s life. However, given that the relative geography has now changed and the experience of the child with the father has developed, it does appear that he is currently making efforts to responsibly fulfil his role as father.
The child’s response to the father, as indicated in the evidence and his capacity to engage in constructive play with her, in the Court’s view, is indicative of successful attempts by the father to make a significant contribution to the development of the child of her full potential, which is a major parental responsibility.
The evidence is that the father continues to make the payments required of him and, in addition, contributes to a trust fund for the child.

(j) Any family violence involving the child or a member of the child’s family

There is no evidence of family violence in this case.

(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

There is no evidence of any such order in this case.

(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

The orders that the Court proposes to make should continue for some time. As the child attains greater maturity and her needs change, the parties will have to consider whether the orders continue to coincide with her best interests. However, the Court sees them continuing until the first year of her secondary schooling.

(m) Any other fact or circumstance that the court thinks is relevant

The father seeks that the surname of the child be changed to one combining that of the mother and himself. In considering the father’s request, the Court has to balance short-term confusion for the child against long-term benefit.
It is suspected that the purpose of the name change is to reinforce to the mother the involvement of the father with the child and the relationship between them. It is thought to have the same benefit for the child.
The Court understands the father’s impatience in wanting to anchor himself in the child’s life, but the Court is of the view that the nature of the relationship between the child and each parent is not and should not be dependent on her name. There are still many children in our community who carry the surname of one parent, with a clear understanding evident in both the child and the other parent of the relationship between that child and the parent whose name he or she does not share.
There are going to be significant changes in this child’s life as a result of the orders proposed to be made. In the Court’s view, the child will not be benefited by the additional change of her name.
However, the Court is concerned, as indicated elsewhere in these reasons, about the use of the father’s given name rather than “Daddy” or “Dad” in the mother’s home. Such nomenclature seems to deny his status as father and the Court sees it as perhaps unconsciously being done by the mother as an attempt to distance the child from the father.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
It is clear that there has been less opportunity for the father to develop a relationship with his daughter because of his or his daughter’s location from time to time. That is, however, in the past, and there it should remain. What now needs to be done is to change that position, without searching for a blameworthy parent, which search took up a significant part of the proceedings.
Balancing the matters set out in s 60CC and the evidence recited in these reasons, I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. It requires the Court to presume that it is in the child’s best interests for her parents to have equal shared parental responsibility for her.
The presumption does not apply where there has been family violence. In this case, there has been no family violence as has been set out earlier.
Notwithstanding that there may have been family violence, it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
That question in this case is a difficult one. I have considered the hostility between the parties and their history of communication with each other. I have considered the statements made by each of them of their desire to have better communication and, indeed, their assurances that they would obey Court orders. The mother’s evidence during the hearing in relation to this issue is as follows:
Q. Do you believe that you and [the father] should share the responsibilities concerning the care of [the child]?
A. Yes
Q. Do you believe that you and [the father] should share the responsibilities for the welfare of [the child]?
A. Yes
Q. Do you believe that you and [the father] should agree upon her future religious upbringing?
A. Yes
…
Q. Now, do you remember, about six or seven minutes ago, you told me that you had formed the continuous view, firstly, that [the child] has the right to know and be cared for by both her parents?
A. Yes
In subsequent evidence the mother was asked:
Q. Do you agree that when [the child] is with [the father], he be responsible for the day to day decisions concerning her care, welfare and development?
A. Yes, I assume – yes.
Against the positive elements which can be found in this evidence, it is the position of the mother that there is no trust between herself and the father. It is hoped that this will dissipate in time and with the appropriate therapy recommended by Dr W.
In addition, the last answer was put in issue as to its veracity, having regard to orders which had been asked for by the mother and which did not provide for the father to see the child. While the mother said she conceded that was what she maintained in her application, she said she maintained it was still her intention to afford the father the opportunity to see the child, notwithstanding the absence of orders, as she had done in the past.
I note that thus far the mother has made the major decisions in relation to the child and it appears that the father has agreed with them.
I note that any order must be made to promote the welfare of this child. It would be to the clear advantage of this child to have two parents parenting her co-operatively. There is, however, a clear history of lack of co-operation and there is some doubt as to the ability of the mother to escape the world she constructs and deal with matters realistically. Her plea that she was motivated by unconscious forces in displaying hostility to the father at handover does not give rise to much confidence that she could engage unaided in realistic discussion and co-operation. The mother is hostile to the father and the father from time to time feels anger about his position of powerlessness, which is how he sees his position. Dr W reports however that there is no evidence that this anger has ever spilled out in an uncontrolled manner.
I have considered whether the Court should make an order for joint parental responsibility anyway since necessity, as well as being the mother of invention, might also be the mother of co-operation.
The mother has particular sensitivities and vulnerabilities at this time and whilst clearly the father wants to have his role as a father recognised in the exercise of the responsibilities of parenthood, I have come to the conclusion that allocation of joint parental responsibility unconditionally is a step which at this time is a risk to the stability of the mother and consequently to the child.
I am, however, going to frame orders which reduce the areas in which she will have responsibility, as a “circuit breaker” and in the event of disagreement sole parental responsibility to those of education and health.
It was pressed by senior counsel for the mother that she had exercised responsibility in those areas without demur from the father and it was in those circumstances that change was not required. I agree to a limited extent but I will require change in relation to other matters and will require the provision of information to and consultation with the father in relation to those matters in which the mother exercises sole parental responsibility.
Dr W has observed that:
[The mother] said that mediation over various issues had failed, but I feel that a true child-focussed mediation has not been attempted. Interestingly [the mother] decided not to go ahead with a mediation which would have involved [the child] - supposedly in the interests of protecting her from unnecessary intrusion (perhaps even interrogation). I feel that mediation would have had more chance of succeeding if both parties had attended a recognized post-separation programme, such as those run by the Family Relationship Centres. Here there would be the opportunity of a child consultant to feed back relevant impartial information to both parties, and for each of them to see the film: ‘Kids in Focus’. I believe that [the mother] is so driven by her own outrage and trauma response, that she is currently unable to really process what is in her child’s best interests around contact issues.
The Court considers that child-focused dispute resolution is a requirement for these parties to facilitate and encourage them to act co-operatively and that it will provide for assistance in the event of disagreement, by a system of mediation. The Court also proposes to provide for some supervision of this order for a time so that the facilities of the Court’s Child Dispute Services can provide assistance in the event of disagreement. Otherwise, subject to a “circuit breaking” arrangement I propose that the parties shall have equal shared parental responsibility.
The section further provides in subsection (4) that the presumption may be rebutted if it is determined to not be in the child’s best interests. To the extent that I propose the alterations to parental responsibility set out above, I consider those alterations to be in the best interests of the child given the facts of this particular case and will order accordingly.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make will afford the child substantial and significant time with the father.

The Orders to be Made

In relation to the time that the child will spend with each of her parents, the Court has, to a large extent, adopted the recommendations made by Dr W in these proceedings. The Court can appreciate the father’s frustration at further delay; however, providing for a graduated process of increasing time between the child and the father gives hope that the relationship between the parties might come somewhere near to desirable in terms of co-operation and communication. It is for that reason that the Court asks the father to accept with patience what is proposed and to work, hopefully with the co-operation of the mother, toward a time when orders are not required to regulate what should be a part of the life of this child. The Court has determined, given that time has passed since the issuance of the report and contact between the child and the father has continued as before, that the first overnight contact between them will commence only after a period of five months from the date of the making of these Orders.
It is my intention to make orders requiring the mother to refer to the father as “Dad” or “Daddy” when speaking with the child.
I propose to make those orders identified at paragraph 174 hereof as to parental responsibility.
As to the orders sought for the recall and destruction of the father’s manuscript, the Court is only prepared to make orders which are capable of being carried out by the father. To do otherwise would be pointless. However, irrespective of his lack of power to procure some copies and ensure their resultant destruction, the father should use his best endeavours to recall all copies and destroy them or have them destroyed.
By agreement, the manuscript is not to be published and orders will be made requiring copies of it to be destroyed.
The Court proposes to order child-focussed mediation as recommended by

Dr W and make a supervision order to assist the parties.
Otherwise, I propose to make the orders set out above. Such orders, on the evidence before me, will best promote the best interests of this child at this time.

I certify that the preceding one-hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 9 February 2011.

Associate:

Date: 9 February 2011

[2011] FamCA 45

9 February 2011

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

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