PAGGETT & CABLE

[2015] FamCA 173

FAMILY COURT OF AUSTRALIA

PAGGETT & CABLE [2015] FamCA 173

FAMILY LAW – CHILDREN – Mother to have sole parental responsibility – Mother to consult with Father on major issues – allocation of time

Family Law Act 1975 (Cth)

APPLICANT: Mr Paggett

RESPONDENT: Ms Cable

FILE NUMBER: CAC 1013 of 2012

DATE DELIVERED: 17 March 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 2 & 3 October 2013 & 27 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Ms Swart

SOLICITOR FOR THE RESPONDENT: Claire Naidu & Associates

Orders

1. The mother, Ms Cable, will have sole parental responsibility for B, born … 2011. 

2. (a)     Notwithstanding the last mentioned order, the child’s mother will consult with her father about the child’s schooling and where she will attend school.  Such consultation will occur either by telephone or by e-mail, unless the parties otherwise agree. 

   (b)Ultimately, if the parties cannot agree the mother will determine where the child will attend school but not so as to impose a financial burden upon the father additional to that which would be attributable to her attending a public school.

3. The mother will authorise and direct any school or educational facility which the child attends to provide upon request from the father and at his expense copies of all reports, notices and information about the child which the school may hold.  The father may provide a copy of this Order to any such school or educational institution. 

4. (a)     B’s mother will advise the father about any medical practitioner or similar professional that the child consults.  In addition, the child’s mother will authorise such practitioner or professional to provide information to the child’s father upon his request and at his expense. 

   (b)B’s mother will promptly inform the father about any serious illness or treatment that the child should incur or undergo and in the event of any medical treatment or medicine being prescribed for the child will inform the father and keep him informed of those requirements. 

5. The mother will inform the father about her views in relation to the child’s diet and without being prescriptive in relation thereto indicate to the father what things the child likes and what the child’s mother believes are appropriate matters to be included in her diet.  The child’s mother will not however complain that the father may deviate from such diet provided that such deviation is not in contradiction of any medical opinion provided to the father.

6. B will live primarily with her mother.

7. The child will be known by the names the B Paggett Cable.  To the extent that such is not reflected on the official records the mother will do all such things as may be necessary to ensure that the records do reflect this Order and a copy of this Order may be provided to the relevant authorities to enable that to occur.  The father may also inform the authorities in conformity with this Order. 

8. Commencing on the next weekend on which the child would ordinarily spend time with her father the child will spend each second Saturday with her father from 10am until 5pm for two consecutive periods of time.  (That is two weekends one fortnight apart.) 

9. Thereafter the child will spend from 10am on Saturday until 5pm on Sunday with her father for a period of one year, on every second weekend.

10. At the expiration of that year the child will spend from 9am on Saturday until 5pm on Sunday with her father every second weekend (unless the parties agree to extend that time). 

11. (a)     In addition, the child will commence in 2016 to spend one week in each of the school holidays in the year (that is four holiday periods) with her father, unless the parties otherwise agree. 

    (b)In years ending in an even number or zero (unless the parties otherwise agree), the child will spend the first week of the school holidays with her father.  In years ending in an odd number (unless the parties otherwise agree), the child will spend the second week of the school holidays with her father.

    (c)The school  holidays will be deemed to commence on the first Saturday after the last day on which the child is obliged to attend school and the second week (for years ending in an odd number) will commence on the second Saturday after the last day on which the child is obliged to attend school.

    (d)The period that the child spends with her father will commence at 9am on the relevant Saturday and terminate at 9am on the following Saturday.

12. The parties may agree about the time that the child spends with each of them on Christmas Day, however in default of agreement, the child if she is otherwise with her father will spend from noon on Christmas Day until 6pm on that day with her mother.  If the child is not otherwise with her father on Christmas Day (this includes Christmas Day 2015) the child will spend from noon on Christmas Day until 5pm with her father. 

B’s Birthday

1. The parties may and should agree about the fact that each of the parents should spend some time with the child on her birthday.  Unless the parties otherwise agree, the child will spend not less than two hours with the parent with whom she is not then living.  This will be between the hours of 4pm and 6pm, unless the parties otherwise agree, on school days or between the hours of noon and 2pm on non-school days. 

Parents’ birthdays

1. The parents may and should agree about the child spending some time with each parent on his or her birthday if the child is not living with that parent on the relevant day.  If the parents are unable to agree, the child will spend between 4pm and 6pm with that parent on a school day or between noon and 2pm on a day which is not a school day. 

Telephone calls

1. (a)     B may telephone the parent with whom she is not living at any reasonable time.  The parent with whom the child is then living will facilitate such telephone call and help the child to make the call if necessary. 

   (b)Nothing in these Orders prevents either parent from agreeing to an arrangement whereby each parent rings the child at a nominated time on a nominate day.  However, unless the parents are able to reach agreement, no such order is made at this point. 

2. After 2016, if the parties wish to do so, the child may spend one half of the longer school holidays with her father.  This is dependent upon her father being able to have leave to be with the child during this period.

3. Nothing in the aforementioned orders requires any other person to be present when the child is with her father.  However, until 2016, unless the parties otherwise agree, for the period from 5pm on the Saturday that the child is with her father on a weekend, until 9am on the following morning a member of the father’s family will be present in the house where the child and the father are sleeping. 

4. (a)     Unless the parties otherwise agree, handovers in relation to any period that the child spends with her father will be carried out by the mother’s arranging for her mother or some other person to transport the child to the father and will so far as it is possible to do so accompany that person for such handovers. 

   (b)Further, unless the parties agree to the contrary, at the completion of the time that the child spends with her father, her father will return her personally to the child’s mother’s mother’s house (the maternal grandmother’s house).

   (c)In respect of any handover each of the parents will be respectful and courteous to each other and will concentrate on ensuring that the transition of the child from one to the other is as friendly, cooperative and pleasant as it may reasonably be.

5. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

6. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

7. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

8. The matter be removed from the Pending Cases Inventory.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paggett & Cable has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1013 of 2012

Mr Paggett

Applicant

And

Ms Cable

Respondent

REASONS FOR JUDGMENT

Foreword

1. I begin my reasons for my decision in this matter with an apology to the parties for my delay in publishing my judgment. 

2. Unintentionally on my part, the delay enabled further evidence to be given on 27 February 2015 by the parties and this was of some assistance to me in observing what the parties have been able to do in the time since the original trial concluded and to consolidate some of the determinations that I had made in a preliminary way after the original trial. 

3. This matter is about the child, the daughter of the parties, who was born in 2011.  At the time of this judgment therefore she is nearly four years of age.  There was four year age difference between the parents, but the mother became a mother at a relatively young age.  The father is now nearly 29 and still lives at home with his mother.  The mother is now 25 and also lives with her mother. 

4. The parties commenced their relationship, at least as asserted by the father, in September 2010 and their relationship finished in March 2011, some six months before the child was born.  The animosity between the parties is perhaps best illustrated by the fact that the father was not informed that the child had been born until some sixteen days after her birth.  There were applications for domestic violence orders.  The early period of the child’s life was marked by a fierce determination on the part of the mother not to allow the father to see the child. 

5. The matter commenced with an Initiating Application filed by the father on 4 July 2012 and there was some contact in October 2012 and in the months that followed on a supervised basis.  An Order was made on 21 November 2012[i] and further orders were made on 4 July 2013.[ii]

6. The matter first came on for trial on 2 October 2013 and judgment was reserved on 3 October 2013. 

7. In many ways certainly by the time the matter came back before me on 27 February 2015 the issues between the parties had narrowed quite significantly. 

8. The father sought further time with the child and the mother did not seek to oppose his having any time with the child and in fact did not oppose his having overnight time with the child provided there was a graduated program.  It has to be said however that the attitude of the mother seemed to me to be designed to postpone what she accepted as an inevitable result for as long as possible.

9. It is probably trite to say that the parties’ original relationship occurred at a time of emotional immaturity for each of them.  Each now sees the period when they were together as in a completely different way.  It is sad that with whatever love and affection the child was conceived, the period during which she was conceived is now distorted by the retrospective prism of angst brought about by the circumstances in which the parties’ relationship ended.  It would also be fair to say that I have formed the impression sometime later, having seen the parties again, that some of the factors which have impeded the opportunities for the child to have a relationship with her father still exist to some extent. 

10. B’s mother gives the impression that she is both narrow in her understanding of the situation and rigid in her ability to move from her fixed position.  The child’s father on the other hand is determined that the child should have the benefit of his parenthood and relentless in his continued pursuit of that objective.  I should hasten to add that this is not an unreasonable objective in the circumstances.  I accept, and it was interesting to note that the mother appeared also to accept in her most recent evidence before me, that the child enjoys her time with her father and I formed the impression that she would benefit educationally from his education - which was superior to the mother’s - as she grows older. 

11. It is also appropriate to note that the child’s father has complied with all of the recommendations (so far as I can determine) from the various professionals that have been involved in this matter and attended all the courses referred to. 

12. My assessment of the child’s mother is to some extent corroborated by the report from the Single Expert in this matter, Dr C (as she now is)[1]

    There is some suggestion that [Ms Cable] has limited mentalisation skills (the skills in perceiving and interpreting human behaviour in terms of intentional mental states).  If so, this may lead to inaccurate reading of the child’s behaviour and possible interference with the development of a secure attachment. 

    and again with her comments[2]

    Given [Ms Cable’s] personal history including attachment disruption and resultant vulnerabilities or sensitivities, she may have limited mentalisation skills and there is a risk that she will not accurately perceive or interpret the child’s behaviour.  For example, she described that the child returns from the short visits with her father as a “rag doll” who has been ruined in some way during the 1 or 2 hour visit.  This demonstrates a possible biased perception of the child’s behaviour and problematic reasoning of the child’s internal state.  Going forward, it is essential that [Ms Cable] is able to separate her own feelings from her daughter’s feelings and needs and that she is able to support the child to build a relationship with her father. 

    [1] P 31 17 April 2013

    [2] P 33 17 April 2013

13. Her assessment of the father[3] also coincides with my observations.

    [3] P 34 17 April 2013

    [Mr Paggett] appears to be open to developing a co-operative relationship with [Ms Cable], though his expectations appear somewhat idealised in the context of [Ms Cable’s] perception of him.  [Mr Paggett] would like to communicate regarding the child’s interests and needs and is frustrated by the lack of communication or information that is provided to him.  He stated a commitment to continuing to work on this and being open to improving things with [Ms Cable].  He has no illusions that they will reunite, though believes they can effectively co-parent, which is probably unrealistic.

    …

    I formed the opinion that [Mr Paggett] is respectful and accepting of [Ms Cable’s] role as the child’s mother and there was no indication that he has any intention of limiting or undermining the child’s relationship with her mother.[4] 

    [4] P 35 17 April 2013

14. Dr C concluded

    I formed the opinion that [Ms Cable] is limited in her willingness and capacity to encourage and facilitate time between [the child] and [Mr Paggett].  She does not believe that [the child] needs her father in her life and [Ms Cable] would prefer that [Mr Paggett] is not involved in at all until [the child] is much older.  She reluctantly and resentfully conceded that the law will enable him to have contact sooner.  [Ms Cable] is clearly resentful of [Mr Paggett] pushing to have contact with [the child].  She does not understand why he would want to have contact with his daughter and she perceives this as him attempting to further harass her.  [Ms Cable’s] inability to accept [Mr Paggett’s] role in the child’s life is a significant limiting factor with regard to effective co-parenting.  It colours her perceptions on how [the child] behaves post-contact with her father and she is vulnerable to exaggerated negative interpretations of what is taking place on contact (such as believing that [Mr Paggett] does not talk to [the child] on contact). [5]

    …

    At this stage it is likely that these parents will not be able to have a cooperate parenting relationship, but they are likely to be able to manage parallel parenting without assistance with handover, at least for some time.  Although [Ms D] has been facilitating handover recently, this appears to be preventing [Ms Cable] from exploring alternative perceptions of [the child] in relation to contact with her father.[6]

    [5] P 34 17 April 2013

    [6] P 35 17 April 2013

15. The conclusion reached by Dr C has to some extent been ameliorated by time.

16. I do not doubt that there will never be an effective relationship in cooperative parenting between the child’s mother and father but there does not seem to be an acceptance on the part of the child’s mother that the child can and probably will derive benefit from her relationship with her father over time. 

17. Handovers however continue to be something of a problem mainly because of the mother’s (in my opinion irrational) fear about what the father may do or say to her on such occasion.  It is to be hoped that that situation will ameliorate also with time and that the child will be able to observe her parents united at least in one respect – that is their love for her and their desire for her wellbeing.

18. In the Orders that I made on 4 July 2013 I made the following Order:

    16.Notwithstanding her objection thereto, the mother will accompany her mother in transporting [the child] to the father’s dwelling for the purposes of her spending time with her father.

19. In his more recent evidence the father commented, and the mother agreed, that most of the time she stayed in the car and would not get out.  This must convey an unfortunate message to the child about her mother’s attitude to the father.  It is unrealistic to expect the mother to express warmth and affection towards the father.  Her anxiety would preclude this and probably will preclude it permanently.  This should not preclude her however from at least being able to demonstrate to the child that:

    a)The mother does not oppose the child’s spending time with her father.

    b)Her mother believes that the child will have fun and enjoy the time she spends with her father.

    c)It is good for the child to spend time with her father.

    d)B’s mother will do everything she reasonably can to ensure that the child has an enjoyable time with her father. 

20. The regrettable fact is that if the mother finds herself either unwilling or unable to do these things it is the child who will suffer not the mother.  The child will be placed, as the mother acknowledges to some extent, in the difficult and contradictory position of being obliged to spend time with her father, her enjoying the time she spends with her father but her mother not supporting the arrangement or the fact that the child enjoys the time. 

21. There can be little doubt that this will sow the seeds for difficulties in the future and it is probably not too unreasonable to predict that it may in due course cause the child to take an adverse view about her mother’s behaviour as it will not coincide with her own experiences. 

22. To bring about this change in attitude will require time, trust and a significant effort on the part of the child’s mother.  I am confident that the child’s mother’s love for the child will enable her to do what will be best for the child and that she will overcome her own feelings in this regard and her own anxiety to enable the matters I have set out above to be accomplished in due course. 

1. Accordingly, I have but made minor variations to the orders that have been in place for some time about the change-overs.  I have made easy provision for the parties to come to an alternative agreement.  I note the mother’s view that the change-over should be at McDonalds.  I do not favour that arrangement for the reasons set out above but if both parties are in agreement it may be in the child’s best interests. 

2. By the time the matter came back before me the mother commented that she felt “it was going well” (it being the time that the child spent with her father).  She felt that it would be better to swap Sundays to Saturdays and there did not appear to be any opposition to this. The mother also conceded that the child’s time with her father would be extended to overnight when the child turns four. 

3. I digress to comment that there appears to be no logical reason for waiting until the child was four apart from the mother’s (perhaps understandable in the light of the history of these parties) desire to postpone the development of the child’s relationship with her father.  The child’s mother seemed to think that between 10am and 5pm for a couple of months might be helpful.  She was also anxious to draw on the experience of Ms E, a senior Family Consultant attached to the Family Court at Canberra, who had assisted the parties in the past.  The father was less enthusiastic about this course of action and with respect to the mother I agree.  The period between the end of the trial and the reopening has meant that there has been an opportunity for the father to demonstrate that the child can have a good time with him.  This is so notwithstanding the limitations imposed by his having a member of his family present during the time that the child is with him.  This in general has not caused a great deal of inconvenience for him but is a restriction which from the evidence I have before me is no longer necessary. 

4. It is necessary that I should take account of the anxiety and concerns of the mother not because they are necessarily based upon reality but because they are part of her reality.  I do not see at this point that the intervention of Ms E would assist the parties and more particularly the child. 

Parental Responsibility

1. Although the mother agreed in her recent evidence that she felt she could communicate with the father by e-mail and by telephone it is obvious that communication between the parties has been strained to the point of non-existence.  In the brief period of their relationship the parties had no time to develop mutual aspirations, hopes and expectations.  Since that time, notwithstanding that neither has re-partnered, there has been no development of mutual goals and objectives.  This is illustrated by the fact that the mother has not consulted the father about toilet training, has continued to send food with the child to the father’s place because she is concerned that the father will not feed her properly and in the proposed arrangements about the child’s schooling. 

2. It was gratifying to find that the mother commented that she was happy to talk to the father about F School and as each of the parents has reasons for their choices of schooling and given the failure to communicate effectively their views and aspirations in the past, this represents a hopeful sign that the child may benefit from appropriate communication between her parents. 

3. Notwithstanding this faint glimmering of a dawn of (perhaps) new understanding it would be unrealistic for me to make an order which applied the presumption under the Family Law Act 1975 that there should be equal shared parental responsibility. 

4. Each of the parents of course has responsibility for the child.  That is a fact and result of their conception of her.  She is and will remain the daughter of each of them whatever the circumstances of the parents and whatever orders may be made.  It would be desirable that both parents contributed to decisions about the child’s long term welfare but it would be unrealistic at this point to dictate that there should be mutual consultation and cooperation in reaching joint decisions about the child’s future.  I hope that that situation may pertain in the future but it would depend upon a significant change in the attitudes of the parents, particularly those of the mother. 

5. In my opinion, in the child’s best interests it is important that the child’s parents should not be obliged to participate in a process of cooperative parenting when that seems beyond their capability and may be productive of more antipathy between the parents than benefit to the child. 

6. That is not to say that the child’s mother should not be obliged to provide (certainly) more information to the father than she has in the past.  For example, it does not assist the child at all that the child’s mother sees fit not to inform the father about the processes she is undertaking in relation to the child’s toilet training.  It is also totally inappropriate that the child should have any medical treatment without the father being advised about the fact that such treatment is to occur and has occurred and that he should be excluded in any way from obtaining information from the appropriate professional about what was involved in the treatment.  It is also inappropriate that decisions about where the child will go to school for example should be made unilaterally by the child’s mother.  It is particularly impressive that she has been able to overcome her anxieties and to say that she was happy to discuss these matters with the father.  She should continue to do so and I shall make orders accordingly. 

In summary

1. Although in my opinion it would be entirely appropriate in a theoretical sense for the child’s parents to cooperate in her parenting I accept at this point that it is not in her best interests because the parents should not be placed in a situation which may increase the potential for them to be in conflict.  In my opinion, that is not a desirable situation but is realistic. 

2. Notwithstanding that determination, it is imperative that the communication between the parents should be improved and that in particular there should be both notice and to some extent consultation between the parents about major matters affecting the child’s life.  This includes, but is not limited to, her education, her educational progress, her health and her physical and psychological development.  The presumption is rebutted in the child’s best interests.

3. Any order I make about the child must be made on the basis that her best interests should be my paramount consideration. 

4. The matters I am to take into account in determining what her best interests are include two primary considerations and a number of additional considerations. 

5. Of the two primary considerations her safety is to be given precedence.  In this matter there are no suggestions which I regard as realistic that the child would not be properly cared for by her father when she is with her father.  However, I think it is appropriate that there should be some concession made to the mother’s anxiety in the short term by ensuring that when the child is with the father overnight, a member of his family is present. I do not regard such a restriction as being dictated by any concern about what the father might deliberately do.  Moreover, given the father’s demonstrated desire to become a better parent, by learning whatever he can about it, his inexperience is less likely to cause any difficulty. 

6. The mother expressed concerns about the sort of food that the father eats in his family and has indicated she had first-hand experience of it in the short time she lived with the father and his family.  This is a very significant generalisation from a limited experience and I am satisfied that the father will take whatever steps are necessary to ensure that he is informed about what is the best sort of food for the child to eat and that he will do his very best to ensure that that is the sort of food that she receives.  In this regard it would be helpful if the mother were to indicate to the father (contrary to her practice over the last couple of years) what it is that she feeds the child on a regular basis, what things the child likes and what she, the mother, believes is the appropriate sort of diet for the child to have.  This should be done in a helpful rather than a prescriptive way and the mother should not be distressed if the child in fact does not eat only the foods that the mother recommends when she is with her father. 

7. The second of the primary considerations is the benefit that the child may receive from having a meaningful relationship with each of her parents.  It is apparent from the reports of both Ms E and Dr C and the evidence of the parties in corroboration of that, that the child will derive a benefit from an association with her father.  It would have been very easy for the father to have walked away from the situation, his responsibilities and his commitments to the child because of the attitude of the child’s mother.  He has not done so.  He has persisted and done his very best to ensure that he can be a proper and effective father for his daughter. 

8. His description of the time he has spent with the child in the limited opportunities he has had since the trial reflects perhaps a lack of imagination but perhaps even more importantly a lack of opportunity for the child to spend what I would describe as “ordinary time” with her father.  That ought to be an important factor in itself in her upbringing and to provide a change and a contrast perhaps with what she experiences with her mother.  In my opinion there is no doubt that the child will benefit from having meaningful time with her father. 

9. Among the other additional considerations to be taken into account I am satisfied that the child has demonstrated through her actions (and in this regard I accept the evidence of the father) that she enjoys the time with her father.  This in part assists me in concluding that the child’s views limited though they are, and formulated on a very limited experience are that it would be important for her to continue to have the relationship with her father. 

10. I am also satisfied that the child’s father has, within the limited circumstances he has been able to experience, a good relationship with the child and will have an enhanced relationship with increased opportunities.

11. His family are supportive of him and of the child and she will benefit from her time and relationship with them.  The child’s mother has perhaps an over protective relationship with the child but is assisted in her day to day care by her mother and the mother’s commitment and love to the child cannot for one moment be doubted. 

12. I am satisfied also that the child’s father has done everything he reasonably can to try to participate in the child’s life by seeking to be involved in decisions about her, spending time with her and communicating with her.  The mother’s rigid attitude in response to this has to some extent limited that ability on the father’s part and I am hopeful that that may change in the future in the light of her more recent evidence.  I should add I regard her change in this regard as being significantly to her credit in the light of the sort of evidence she gave on the first occasion. 

13. The mother has expressed concern that the child who has had but limited opportunities to spend time away from her mother should suddenly be thrust into a situation of spending overnight time with the father.  I can only conclude that given there are no obvious reasons for this that the mother is being somewhat over protective.  This may be understandable but it is not justified.  It seems to me within a very short time, by which I mean two months, the child ought to be able to spend overnight time with her father.  I note that by that stage the child will be quite close to the time when the mother herself thinks that the child could and should (perhaps) spend time with her father overnight. 

14. I have made comments about the capacity of the parents and I do not propose to elaborate on them and while I have commented in my introductory remarks that there were AVOs taken out at the time of separation of the parents I am satisfied that there are no current issues relating to family violence which would bear upon any orders I would make.

15. Any orders I do make are unlikely to suffice to deal with the situation with the child until she attains the age of 18 years and ceases to be under the jurisdiction of this Court.  While acknowledging that fact it seems to me that given the progress the mother has made in her attitude since the original trial it is probable that there will be some breaking down of her previous intense opposition to the child’s father and a recognition by her of the benefit to the child in having the opportunity of spending time with him.  

16. In other words, I would hope that the parties will consider a more flexible attitude to the time that the child spends with her father as time goes by and an element of trust is established between them. 

Other issues

1. To avoid any ambiguity about the situation and in the light of the fact that the parties appear to be reasonably agreed about the matter I indicate that I determine that the child should be known with a last forename of Paggett.  Her surname should be Cable (for abundant clarity not Paggett-Cable) but her father’s name should be part of her official name and I require that the mother take such steps as may be necessary to ensure that is incorporated in the official record at the Registrar of the Office of Regulatory Services. 

2. This in part is an acknowledgment of the fact that the child will be living principally with her mother and that confusion may occur from a hyphenated last name.  It also acknowledges the significant importance for the child in recognising that she has a father who is an important part of her life. 

3. The second matter relates to the child’s schooling.  It is encouraging that the child’s mother has agreed to discuss this matter with the father.  It is important for the child to have input from her father in relation to her education.  This is not only because he has had the good fortune to have had a more substantial education than the mother, but also because in his evidence before me recently he has demonstrated a significant degree of thought and consideration for what might be best for the child. 

4. My orders will require the parents to consult about this issue but that ultimately (leaving aside issues of finance) if the parties are unable to reach agreement the mother will determine where the child will go to school.  This I see as being appropriate because of the fact that the child will be spending her time primarily with her mother.

5. The qualification I imposed in the last paragraph relates to the fact that if either parent wants the child to attend a school other than a public school and fees are involved it would be totally inappropriate to allow for example the mother to require the child to attend a private school but expecting the father to pay those fees.

6. I have taken the liberty of making specific provision about special days and telephone calls (Orders 12-15) I note that on the most recent occasion the matter was before me I did not obtain any specific submissions from the parties about these matters.  Accordingly, my determination about these matters bears reference to what the father was seeking previously but does not mirror those submissions. 

7. I consider that it is in the child’s best interests that she should spend time with each of her parents on her special days.  The orders that I have made make special provision for Christmas Day.  It is expected that these provisions will not be convenient for both parties in every year but I would expect as the years go by the parties will be able to cooperate in finding some alternative arrangement by agreement. 

8. As no submissions were received about these particular orders if the parties do not accept that they are appropriate I would permit a joint application to set the orders aside and substitute other orders that they may agree upon.  Otherwise, the remedy of the parties would unfortunately only be by appeal.

9. I have not made provision in the orders for the child to travel overseas with either parent.  I have no evidence that suggests that this is likely but obviously, it would be important that the parents confer about any such proposal and if possible agree about it.  If they cannot, it will be necessary for the parent who wishes to take the child away to make an application to the Court at the relevant time.

10. I have deliberately not made provision in these Orders for “makeup” time.  Sensible parents would agree that if for example the child were to be ill for one nominated period of time that she would otherwise spend with her father that there should be some substituted time whether coterminous with the nominated time or not.  However, recognising the difficulty these parents have in communicating with each other, while I express this hope in these my reasons for judgment I make no orders specifically referring to it. 

11. Accordingly, I made the Orders that I set out at the start.

Afterword

1. I add by way of explanation some reasons for some of the orders that I have made in this matter. 

2. I have indicated previously that I do not regard the child as being in any danger from the father at all.  The requirement of supervision was one which was imposed to allay the anxieties of the mother but both time and a change in the mother’s attitude have really enabled a change also in that requirement.  The requirement for someone to remain in the same house as the father and the child during overnight periods at least for a certain period of time is brought about in recognition of the mother’s anxiety and a determination on my part that nothing should stand in the way of the child’s having an appropriate relationship with her father.

3. The parties have not come to grips with the concept of what might happen during school holidays later on.  I have prompted their discussions about this matter to some extent with the Orders I have made.  I recognise that these Orders are made in the circumstances where the parties have not had a proper opportunity to consider them. 

4. Their introduction is of course postponed and may be regarded by the parties as appropriate when the orders begin to take effect.  If there is a difference about the implementation of those orders or indeed if the parties wish to expand them to provide at an earlier point that the child should spend half of each school holidays with her father then obviously the parties may reach such an agreement without the benefit of further orders of this Court.  If they are unable to agree, I accept that it must be inevitable that they will come back to Court to dispute the matter at some point. 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 17 March 2015.

Associate: 

Date:  17 March 2015

[i] 21 November 2012
IT IS NOTED THAT:

1.    In Court this day were both the mother and brother of Ms Cable and also the mother and sister of [Mr Paggett].

BY WAY OF FURTHER INTERIM ORDERS, IT IS ORDERED THAT:

2.    [B], born … 2011, will spend time with her father, possibly until she attains the age of two years, unless the parents otherwise agree, in accordance with the arrangements set out hereunder.

3.    The parents may, at any time by agreement, change the arrangements either as to the duration of the time that [the child] will spend with her father or the time at which she will go to her father and return from her father.  However, in default of the parents agreeing to the contrary the arrangements set out in these orders will apply, until further order.

a.     [B] will spend each Sunday with her father between the hours of 2pm and 4pm.

b.     [B] will spend time with her father on each Tuesday (except Christmas Day) for one hour from 8:30am.

c.     [B] will spend time with her father on each Thursday for one hour from 8:30am. 

d.     On 22, 27 and 29 November 2012 the time that [the child] spends with her father, will be at [the child’s] mother’s grandparent’s house and will be in the presence of [Ms D], the child’s maternal grandmother. 

e.     The Saturday time that the child spends with her father on 24 November 2012 and 1 December 2012 will also be at [the child’s] maternal grandmother’s home.

f.   For the week involving Tuesday 4 December, Thursday 6 December and Sunday 9 December 2012 [Ms D] will also be present during the time that [the child’s] father spends with [the child] but such time will occur at his house (that is his mother’s house). 

g.     Thereafter the time that the child spends with her father will be, unless the parents otherwise agree, at the father’s mother’s house in the presence of either the father’s mother or the father’s sister who have given undertakings to the Court that they will remain present during the period that [the child] is with her father and will ensure (to the extent of their ability) that nothing untoward will occur to [the child] and in the event (likely or not) that something does happen to [the child] they will report the matter to the Court as soon as is practicable. 

h.     [B] will spend two hours with her father (in relation to Christmas) on Boxing Day, 26 December 2012 (a Wednesday) between noon and 2pm on that day. 

i.   For the purposes of the time that the child spends with her father [Ms D], or a person on behalf of [Ms Cable], will bring [the child] to her father and collect her at the end of the relevant period. 

4.    Each of the parties will attend upon a person whose name will be submitted to me in Chambers as soon as practicable and will be incorporated into a supplementary order to be made in Chambers for the purposes of each of them being the subject of a psychological assessment by the expert for the purposes of determining whether either has any psychological difficulty which may impinge upon his or her ability properly to care for [the child] or to be involved in the parenting of [the child]. 

5.    In submitting the name of the agreed expert each of the parties are at liberty to suggest additional terms of reference.  However, the purpose of the examination report is essentially related to an analysis of the mental health of each of the parties.

6.    Upon receipt of the expert’s report which is not expected to be delivered until sometime in March 2013, unless the parties are otherwise agreed, I shall arrange for a relisting of the matter for the purposes of the consideration of the report and a review of the existing interim orders and if necessary to give such further directions about the finalisation of the matter. 

7.    The parties will, and have agreed to, attend upon the Early Life Matters Program (Circle of Security) at [Suburb G] for the purposes of improving their respective relationships with [the child] (and with each other) in this regard it is noted that the primary person attending the course will be [Ms Cable] but that it is understood that [Mr Paggett] will be able to, and will, participate with the psychologist to improve his own understanding of [the child’s] requirements and her developmental stages. 

8.     

[ii] 4 July 2013

IT IS ORDERED THAT:

9.    The matter be scheduled for hearing on 2 October 2013 at 10:00am.

10.     Each of the parties may file further affidavits bringing the matter up to date as to the progress of the orders made hereafter on or before 4:00pm 30 August 2013.

11.     The parties will file a Minute of Orders Sought on or before 4:00pm 30 August 2013.

12.     Until further order, from 4 August 2013 [the child] will spend every second Sunday with her father, to be after the initial period referred to below, from 11:00am until 4:00pm.

a.   On 7 July 2013 the period that [the child] will spend with her father will be for a period between 11:00am and 2:00pm.

b.   On 21 July 2013 the period that [the child] will spend with her father will be for a period between 11:00am and 3:00pm.

c.   On 21 July 2013 the period that [the child] will spend with her father will be for a period between 11:00am and 4:00pm.

13.     [B] will spend time with her father commencing on Monday 15 July 2013 from 8.30am until 12.30pm and every second Monday thereafter.

a.   Subject however to the parties being able to agree if they wish to do so that that time will occur at another period during the day, for example, in the early evening finishing at about 7.30pm.

14.     [B] will spend time with her father on each Thursday between 8.30am and 11.30am.

15.     The time that [the child] spends with her father will be facilitated by any member of the father’s family being present during the time.

16.     The father will see [the child] on this birthday, …, between the hours of 8.30am and 10.30am and the issue of what permanent arrangement may be made will await the final hearing, unless the parties reach agreement before that time.

17.     Notwithstanding her objection thereto, the mother will accompany her mother in transporting the child to the father’s dwelling for the purposes of her spending time with her father.

IT IS FURTHER ORDERED THAT:

18.     Order 3(g) made on 21 November 2012 is discharged.

IT IS NOTED THAT:

19.     The father commences the circular security program for 8 weeks on 23 July.

20.     The parties may, if they wish to do so, attend upon a Family Consultant on 24 July 2013, for the purposes of discussing with the Family Consultant (however in a reportable way) what arrangements are best suited for a child of the child’s age so far as time spent with a non-resident parent is concerned.

IT IS FURTHER ORDERED IN CHAMBERS THAT:

21.     Each party will be responsible for paying one half of the hearing fees.

22.